Select any passage to save a personal note with optional tags.
Supreme Court
New South Wales
Medium Neutral Citation: R v Al Batat & Ors (No 28) [2020] NSWSC 1452
Hearing dates: 13 October 2020
Date of orders: 13 October 2020
Decision date: 13 October 2020
Jurisdiction: Common Law
Before: Hamill J
Decision: (1) To allow the Prosecutor to cross-examine Ms Chan last, that is, after Mr Webb's examination, pursuant to s 26 of the Evidence Act 1995 (NSW); and
(2) To grant leave under s 38 of the Evidence Act to the Prosecutor to cross-examine the witness generally.
(3) Disallow cross-examination of Ms Chan about evidence of her being threatened with a knife, the destruction of her phone and the shooting of her house at Willoughby is not admissible.
(4) Allow cross-examination of Ms Chan about her knowledge of the murder of Qin Wu.
Catchwords: CRIMINAL LAW – variation of order of examination and cross-examination - where witness unfavourable to the prosecution - where Prosecutor formed the view the witness was untruthful
CRIINAL LAW - evidence - where Prosecutor seeks to cross-examine own witness - subject matters of cross-examination - where relevant count concerning shooting of witness's house severed from indictment - interlocutory triumphs - where permitting cross-examination would create incurable prejudice
Legislation Cited: Evidence Act 1995 (NSW), ss 26, 28, 38, 192A
Cases Cited: Nguyen v The Queen [2020] HCA 23; (2020) 94 ALJR 686
R v Al Batat & Ors (No 2) [2020] NSWSC 992
R v Apostilides (1984) 154 CLR 563; [1984] HCA 38
R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279
Richardson v The Queen (1974) 131 CLR 116; [1974] HCA 19
Category: Procedural and other rulings
Parties: Regina
Abdallah Hassan Al Batat
Ying Cheng Luo
Ian Fan
Jaiyu Liu
Jacob Blake Bayliss
Nai An Li
Representation: Counsel:
P Hogan (Crown)
B Rigg SC (Al Batat)
R Webb (Luo)
T Quilter (Fan)
N Carroll (Liu)
A Norrie (Bayliss)
D Carroll (Li)
Solicitors:
Solicitor for the NSW DPP (Crown)
TS Law Firm (Al Batat)
Voros Lawyers (Luo)
Zahr & Partners (Fan)
George Sten & Co (Liu)
Ross Hill Lawyers (Bayliss)
Younes & Espiner (Li)
File Number(s): 2018/214586 (Al Batat)
2017/170943 (Luo)
2017/168582 (Fan)
2017/168476 (Liu)
2017/321618 (Bayliss)
2018/214894 (Li)
Publication restriction: No publication until conclusion of trial
EX TEMPORE Judgment (REVISED)
1. Pursuant to s 192A of the Evidence Act 1995 (NSW), the parties seek an advanced ruling in relation to the evidence of a witness known as Zi Yin (Ada) Chan. Ms Chan gave evidence during the course of a pre-trial hearing, both on the voir dire in relation to an application by Mr Luo to sever Count 2 from the original indictment and also on a Basha inquiry. [1]
2. Count 2 (on the original indictment) was an allegation that on 30 January 2017, Ying Cheng Luo fired shots into Ms Chan's house at Willoughby. Mr Webb, appearing for Mr Luo, in the first of a number of forensic (if interlocutory) triumphs, persuaded me that Count 2 should be severed from the indictment: see R v Al Batat & Ors (No 2) [2020] NSWSC 992.
3. The shooting of Ms Chan's house, while peripherally related to the subject matter of this trial, was not part of the narrative of events that involved the accused men allegedly shooting at Jun Jia with intent to murder him in the streets of Earlwood on 23 January 2017 and culminating in the murder of Qin Wu and the second attempted murder of Mr Jia on 1 February 2017 at a makeshift Buddhist temple in Guildford.
4. My reasons for severing Count 2 included that:
1. The shooting of Ms Chan's house was largely peripheral to the narrative of events advanced in the prosecution case that is said to give rise to a joint criminal enterprise to kill Mr Jia; and
2. There was a real risk of prejudice to both Mr Luo and Mr Fan if Count 2 remained on the indictment that was not capable of being cured by a direction.
1. For example, at [46] I said:
"In Mr Luo's case, there is a real risk that a jury that hears evidence that Mr Luo was involved in the shooting of a dwelling house may reason impermissibly that he is therefore the kind of person more likely to have been involved in the plot to murder Mr Jia and the inadvertent killing of Mr Wu. That is, the jury may adopt a kind of tendency or propensity reasoning in circumstances where the prosecution does not seek to lead the evidence pursuant to s 97 of the Evidence Act. While directions could be fashioned to attempt to alleviate this kind of prejudice, I am greatly concerned that such a direction would be difficult for a lay jury to obey. I accept, as I must, that jurors generally obey the directions of a trial Judge: Gilbert v R (2000) 201 CLR 414; [2000] HCA 15 at [13] (Gleeson CJ and Gummow J), [31] (McHugh J). However, the circumstances of this case are such that there is an unacceptable risk that the jury will be overwhelmed by the number of shooting incidents in which Mr Luo was allegedly involved and will not bring an impartial and unprejudiced mind to bear on the resolution of the factual disputes arising under the counts alleging attempted murder and murder."
1. The foundation of the prosecution case in relation to the attempts on Mr Jia's life and the murder of Mr Wu was that Mr Jia owed money for drugs. In essence, the prosecution case is that he tricked two gangsters, known as James and Jackie, into parting with drugs "on tick", then sold some of the drugs (about 1kg) to a witness, Ms Wai Li, and her partner, Mr David Boikov in exchange for $90,000. The evidence suggests Mr Jia received part payment of about $70,000 and Ms Li "rushed to sell" the drugs [2] to pay for the balance. On the prosecution case, this deal went down at a motel in Haberfield on a date on (or between) the 9 or 11 of January 2017.
2. The prosecution case is that Mr Jia never passed the money on to James or Jackie. The drug debt caused James or Jackie to put out a contract on Mr Jia's life – a contract which was accepted by Mr Luo, who subsequently recruited the other people currently sitting in or around the dock to assist him.
3. The witness, Ms Chan, was also present at the time of this Haberfield drug transaction. Her evidence on the voir dire was quite different to the evidence of Jun Jia and Wai Li in the trial. In short, Ms Chan said she purchased a relatively small amount of drugs from Mr Jia and paid for it herself. The following evidence was given on the voir dire:
"Q. That there was an occasion when you asked Jun Jia if he could help out, that is help you to get ice to supply?
A. INTERPRETER: I think I bought some for my own use while at work.
Q. I am just not sure whether you are agreeing that you asked Jun Jia to help out to get the drug ice in that answer?
A. INTERPRETER: It has been quite a long time but I think I asked him on one occasion to buy some from him, that was at work.
Q. But just so that there is no misunderstanding, I'm suggesting that it wasn't ice for personal use that you asked him to supply you, you were talking about him supplying you with a kilogram of ice?
A. INTERPRETER: No, no.
Q. He said that he might be able to help you out in a couple of days' time?
A. INTERPRETER: No, I did not ask him to, like to buy off him a kilo.
Q. Do you recall receiving a text message from him arranging to meet up with him for the purpose of him supplying ice?
A. INTERPRETER: I really can't remember.
Q. Do you remember then going to a motel at Haberfield where he was staying and trying some ice?
INTERPRETER: "Where he was staying", did you say?
CROWN PROSECUTOR
Q. Yes, at a motel at Haberfield?
A. INTERPRETER: Trying.
Q. Test it, you smoked some ice?
A. INTERPRETER: Yes, yes, that was the location.
Q. And on that occasion, he told you that he would be able to supply a kilogram of ice, didn't he?
A. INTERPRETER: He told me about one kilo, no, I really don't remember, but it is not possible to talk about one kilo.
Q. At around that time, early 2017, Wai Li was trying to obtain large amounts of ice from you, wasn't she?
A. INTERPRETER: No, I don't know those people. Where would I get it to give to her?
Q. Well, you know Wai Li, don't you?
A. INTERPRETER: That's the Bebe that you were talking about?
Q. Yes?
A. INTERPRETER: But I didn't give her any ice.
Q. Well, I suggest that what happened was that you contacted her and told her that you could supply a kilogram of ice and that the price would be $96,000, didn't you?
A. INTERPRETER: No, no.
Q. And the difference between the $90,000 that you had been originally told and the $96,000 was your profit, your cut on it?
A. INTERPRETER: No, no.
Q. Wai Li told you that she only had $70,000?
A. INTERPRETER: No, it didn't happen at all.
Q. Didn't you arrange for Wai Li to also come on another day to the motel at Haberfield?
A. INTERPRETER: No.
Q. Weren't you at the motel at Haberfield with Xiao Jun and Wai Li?
A. INTERPRETER: No, I was not with them.
Q. You went there driving the blue Holden Commodore car that you had?
A. INTERPRETER: Yes.
Q. And she came there separately with her boyfriend?
A. INTERPRETER: But I did not go to the hotel together with them.
Q. No, but you were all there at the same time, weren't you?
A. INTERPRETER: No.
Q. Weren't you there when Bebe also tested some of the ice?
A. INTERPRETER: I don't remember but, in my memory, I don't remember being going at the hotel together with her doing the testing.
Q. Do you remember her boyfriend handing you a bag?
A. INTERPRETER: Her boyfriend handing me a bag to me?
Q. Yes?
A. INTERPRETER: No, no, I really don't remember. I don't believe. I didn't go there with her, so how would he have things for me, like a bag?
Q. Didn't he give you a bag that you knew was a bag that contained the money to buy the ice?
A. INTERPRETER: So money for the ice, but I didn't go to buy the drug together with them.
Q. I'm not suggesting that you physically went in the same vehicle as them, for instance, what I'm suggesting is that you were all there at the same time; do you agree with that or not?
A. INTERPRETER: I never went to the same hotel together with them at the same time.
Q. You were aware, weren't you, that Wai Li handed a bag of money that only had $70,000 in it, and you handed that bag to Xiao Jun? You were aware of that, weren't you?
A. INTERPRETER: I didn't take I did not take the bag, I had not taken the bag.
Q. And you guaranteed to Xiao Jun that you would pay the extra $26,000?
A. INTERPRETER: I didn't take guarantee.
Q. And you made arrangements with Wai Li that she would sell some of the drugs and give you the additional $26,000, didn't you?
A. INTERPRETER: No, she sells the drug and give the money but it is nothing to do with me, so why would she give me the money?
Q. That's what happened, isn't it, she gave you, the day after the transaction I was asking you questions about, she gave you another $26,000, didn't she?
A. INTERPRETER: No.
Q. And you took that $26,000 to Xiao Jun?
A. INTERPRETER: Are you saying Wai Li asked me to give the money to him or what?
Q. In fact, you did give $26,000 to Xiao Jun, didn't you?
A. INTERPRETER: I never gave him such a bag, as you say, the bag that contained money. I never gave him such a bag.
Q. And you also gave him another $30,000 of your own money to buy
10 ounces of ice for yourself, didn't you?
A. INTERPRETER: 10 ounces for my own use?
Q. 10 ounces for you to sell?
A. INTERPRETER: No, no. Whatever I bought, I bought it for my own use at work. I did not sell it.
Q. You bought 10 ounces?
A. INTERPRETER: Not 10, no, didn't buy 10." [3]
1. On 21 July 2020, Ms Chan's evidence on the voir dire continued:
"Q. What I'm suggesting to you or what I want to now suggest to you is this. Very early the next morning, at about 2 o'clock in the morning, you called Wai Li on the phone about her paying that extra $26,000; do you agree that happened or do you disagree that happened?
A. INTERPRETER: I telephoned her, I don't think so. As far as I could recall I don't think I telephoned her.
Q. What I'm suggesting is that you telephoned her at about 2 o'clock in the morning and she told you that she had the $26,000?
A. INTERPRETER: 26,000, I don't think I did, I don't think I had any dealings with her for that amount of money. I have never handled that much money with her.
Q. What I'm suggesting is that you told her that you were going to buy 10 oranges, meaning 10 ounces of ice, yourself from Jun Jia?
A. INTERPRETER: I have never bought 10 ounces. I have bought some from him to use at work, but I have never bought 10 oranges.
Q. I'm suggesting that you took $26,000 that Wai Li gave you and another $30,000 of your own money and paid it to Jun Jia?
A. INTERPRETER: No.
Q. You told Wai Li, I suggest, that you had taken the $26,000 and another $30,000 and given it to Jun Jia?
A. INTERPRETER: No, no, I didn't. I didn't get that amount of money.
Q. I would suggest that you also told Wai Li that after giving $56,000 to Jun Jia, when you went back the next day to collect the 10 ounces of ice, Jun Jia had left?
A. INTERPRETER: I have never got that stuff from him.
Q. Did you pay him $56,000 and not get drugs in return?
A. INTERPRETER: I have never paid $56,000.
Q. I suggest that you told Wai Li that you knew that the drugs belonged to someone called James?
A. INTERPRETER: I don't know these people.
Q. Do you know a person named Jia Chen?
A. INTERPRETER: I don't know this person.
Q. Do you know a lady called Kwok Chun Chau?
A. INTERPRETER: I don't know.
Q. Who is also known as Cici?
A. INTERPRETER: I don't know her." [4]
1. Ms Chan's evidence runs counter to the prosecution case on motive. The application made this morning, during a hiatus in the trial (due to one of the jurors awaiting their results of a COVID-19 test), was for an advance ruling involving essentially three things, all of which were related.
2. First, the prosecution sought an order under ss 26 or 28 of the Evidence Act, changing the order in which the parties would examine the witness, Ms Chan. Once Count 2 was severed from the indictment, the Prosecutor had formed the intention not to call Ms Chan, partially because her evidence was predominantly relevant to that count, but also because the Prosecutor formed the view that Ms Chan was not a witness of truth.
3. However, Mr Webb on behalf of Mr Luo requested the Prosecutor call Ms Chan so that he could cross-examine her on her version of the events concerning the drug deal at Haberfield. The Prosecutor, in accordance with a number of cases formed the view that he would call Ms Chan, take her name and not ask her any questions. [5] That is because of the view that he formed as to the credibility of the witness; a view open to him based on Ms Chan's performance in the pre-trial hearing.
4. There was no serious opposition to that course and I propose to exercise the Court's power under s 26 of the Evidence Act to change the order of examination to permit the Prosecutor to cross-examine after the accused. It may be, depending on how events pan out, that I would also then allow the accused some limited opportunity to re-examine, in effect, after the Prosecutor's cross-examination. That is something that remains to be seen.
5. The second aspect of the advance ruling concerns a matter which arose in argument and was raised by Senior Counsel for Mr Al Batat. That matter is this: to do what he proposes to do by way of cross-examining Ms Chan, the Prosecutor needs leave under s 38 of the Evidence Act. There is no doubt, on my reading of that section, that leave is required irrespective of the order in which the evidence is taken.
6. I accept the Prosecutor's submission that Ms Chan's evidence, as least as it emerged on the voir dire, is fundamentally unfavourable to the prosecution case and I will grant leave under ss 38(1)(a) and 38(3) of the Evidence Act, or I give the indication by way of advance ruling that I will give leave under s 38, for the Prosecutor to question the witness as though he were cross-examining her. This includes matters going that may go only to her credibility. [6]
7. Third, and most controversially, the Prosecutor seeks to put to the witness, and cross-examine her, on a number of matters. First, that she was subject to a home invasion where she was threatened with a knife and her phone was destroyed by throwing it into a sink. This part of the anticipated cross-examination is based on evidence Ms Chan gave in the voir dire as follows:
"Q. What I'm suggesting to you or what I want to now suggest to you is this. Very early the next morning, at about 2 o'clock in the morning, you called Wai Li on the phone about her paying that extra $26,000; do you agree that happened or do you disagree that happened?
A. INTERPRETER: I telephoned her, I don't think so. As far as I could recall I don't think I telephoned her.
Q. You agree there was an occasion when someone came to your house, is that right?
A. INTERPRETER: Yes, it happened.
Q. Did they threaten you when they came to your house?
A. INTERPRETER: Once they arrived at my home, they just took my took away my phone, telephone, and they put my telephone in the sink and they were speaking in English. I couldn't understand them. At the time my son and my son's friend were there too. And then they left.
Q. While they were there, in addition to putting your phone in the sink, didn't someone hold a knife to your throat?
A. INTERPRETER: Yes.
Q. And they told you that you had to pay money for drugs, didn't they?
A. INTERPRETER: I didn't know what they were saying, but they did try to find something in my house. Then at the time I was crying and then they left.
Q. You said to the person that held the knife to your throat that you would pay him, didn't you?
A. INTERPRETER: I didn't say that.
Q. Did you say to him that he needed to find where Xiao Jun was because you already paid Xiao Jun?
A. INTERPRETER: I didn't, I didn't say that. They did not they came in and then asked me. I couldn't understand what they were saying and then they were searching for things. They couldn't find anything because I was scared so I was crying and then they left." [7]
1. Second, the Prosecutor wants to cross-examine Ms Chan about the drive-by shooting of her house on 30 January 2017. [8]
2. Third, the Prosecutor wishes to put to the witness that she is afraid as a result of those incidents and that she is not telling the truth because of her fears. Finally, the Prosecutor seeks to cross-examine the witness about her knowledge of the circumstances of the killing of Mr Wu on 1 February 2017.
3. The Prosecutor indicated that he will not lead evidence of words allegedly spoken by the witness Ms Chan to Wai Li, in which she identified the person who shot at her house as Mr Luo. That evidence was denied by the witness in the course of the pre-trial hearing in the following exchanges:
"Q. I would suggest that you told Wai Li that Johnny, someone called Johnny, had come with other people to your house and fired several gunshots; did you tell Wai Li that?
A. INTERPRETER: I've never said that.
Q. Do you know a person, I think it is Ying Luo, who is also known as Johnny?
A. INTERPRETER: I'm not sure whether I know this person or not, but I did not tell Wai Li that this person came to my house and fired some gunshots. Because at the time, I didn't even know these were gunshots until the police arrived and the police said those were gunshots." [9]
1. The Prosecutor went on to say he will not suggest in any way that the accused were responsible for either the threat involving the knife or the drive-by shooting of the house in Willoughby. However, being realistic, for there to be any force in the submission that this is motivating the witness to lie, the jury will inevitably wonder, if not infer or conclude, that the accused, or some of them, or people involved with them, were involved in those incidents (or that Ms Chan believes they were).
2. Mr Luo and Mr Al Batat in particular objected to the evidence. Other counsel either took no position or supported the position advanced by Mr Webb and, in particular, Ms Rigg SC.
3. It was submitted that if I was minded to allow the Prosecutor to cross-examine on the shooting and knife threat incidents, that this would cause irretrievable prejudice to other accused. As a solution, Senior Counsel for Mr Al Batat (supported by the Prosecutor to some extent) proposed that I should prevent Mr Luo from adducing the evidence he proposes to adduce, to ameliorate the possibility for prejudice and unfairness to Mr Luo's co-accused.
4. Alternatively, counsel proposed that if I was minded to deny the Prosecutor the right to cross-examination as sought, and deny him the opportunity to cross-examine on those subjects mentioned above, I should instead exercise a power under the same section to allow Mr Webb to adduce the evidence he elicited on the voir dire.
5. The evidence Mr Webb seeks to elicit is highly probative in Mr Luo's case and, indeed, in the case of a number of the other accused men, because it undermines the very essence of the prosecution case on motive. Disallowing that cross-examination, in my view, runs a real risk of causing the trial to miscarry.
6. The evidence the Prosecutor seeks to elicit in cross-examination, that is, the evidence of the threats by way of knife, the destruction of the phone by water and the drive-by shooting of the house in Willoughby, has the potential to be highly prejudicial evidence. It introduces a further shooting into the trial and would cause the jury to speculate or deduce that some or more of the accused were involved in the shooting.
7. The Prosecutor putting to the jury, as he said he was prepared to do, that the accused were not involved in the shooting, is what might colloquially be described as a "dog whistle". The Prosecutor's proposed course seems innocuous enough but it may trigger the jury into thinking exactly the opposite.
8. Further, there is in fact evidence in the Prosecutor's brief, which he very fairly proposes not to lead, that Ms Chan said to Ms Wai Li that Mr Luo was responsible for the shooting. The absence of that evidence creates prejudice to the other accused because they would, in essence, be ruled out as being responsible for it.
9. In addition, the prosecution will not be calling either of the people known as James or Jackie in the trial. Both of those people are known to the police. I was told earlier in the trial that the person known as James was actually at the Downing Centre and bumped into the witness Jun Jia outside the court. In the absence of those witnesses giving evidence in the trial, the evidence is not only potentially prejudicial, but is also very unfair. The accused will not be in a position to put to those witnesses that they caused the alleged threats to be made to Ms Chan and/or were behind the shooting up of her house.
10. I propose therefore to disallow any questions going to the knife threats and the shooting up of the house. In my view the prejudicial effect well outweighs any probative value going to the witness's credit. Based on Ms Chan's performance on the voir dire, there will be many other matters upon which the Prosecutor will be able to impeach her credibility, not least of those things is her involvement in drugs and drug dealings and drug supply and inconsistencies patent in her account.
11. Further, the final topic upon which the Prosecutor sought to cross-examine was not subject to much, if any, argument, and that is her knowledge of the murder of Mr Wu. I do propose to allow the Prosecutor to elicit admissible evidence in relation to that issue, and such evidence will ground the kind of submission or argument the prosecution seeks to make, namely that Ms Chan is not giving an honest account of the drug deal at Haberfield as a result of her fear.
12. Accordingly, the orders that I make these:
1. To allow the Prosecutor to cross-examine Ms Chan last, that is, after Mr Webb's examination, pursuant to s 26 of the Evidence Act 1995 (NSW); and
2. To grant leave under s 38 of the Evidence Act to the Prosecutor to cross-examine the witness generally. Cross-examination of Ms Chan about evidence of her being threatened with a knife, the destruction of her phone and the shooting of her house at Willoughby is not admissible. Cross-examination of Ms Chan about evidence of her knowledge of the murder of Qin Wu is admissible.
**********
Endnotes
1. See Pre-trial Transcript ("PTT"), 20/07/2020, pp 32-53; PTT, 21/07/2020, pp 54-70; PTT, 22/07/2020, pp 127-151.
2. Trial Transcript ("T"), 09/09/2020, p 395.
3. PTT, 20/07/2020, pp 49-52.
4. PTT, 21/07/2020, pp 55-56.
5. See, for example, Richardson v The Queen (1974) 131 CLR 116; [1974] HCA 19, R v Apostilides (1984) 154 CLR 563; [1984] HCA 38, R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279.
6. The grant of leave under s 38(3) of the Evidence Act was implicit in the advance ruling but the reference was added in revising this judgment.
7. PTT, 21/07/2020, p 58.
8. That is, the events constituting Count 2 on the original indictment.
9. PTT, 21/07/2020, p 62.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 25 November 2020