R v Al Batat & Ors (No 5)

1. [1]

   Abdallah Hassan Al Batat is charged with four offences arising out of a series of shootings in January and February 2017. It is alleged that Mr Al Batat was part of a joint criminal enterprise to murder Jun Jia. Mr Jia was said to owe money for drugs purchased from some gangsters called Jia Chen (James) and Kwok Chun Chau (Jackie or CC). As a result, the gangsters took out a contract on Mr Jia’s life. One of Mr Al Batat’s co-accused (Ying Cheng Luo) allegedly accepted the contract and recruited Mr Al Batat and others to carry out the execution. Mr Jia was shot at on two separate occasions and on the second of those occasions Qin Wu was shot and killed. As a result, Mr Al Batat stands charged with one count of shooting at Mr Jia with intent to murder on 23 January 2017 (count 1 on the current indictment), one count of murder of Mr Wu on 1 February 2017 (count 6), a further count of attempted murder of Mr Jia on 1 February 2017 (count 7) and one count of hindering the investigation into the murder (count 8). [1]

2. [2]

   During the course of the pre-trial hearing, Mr Al Batat raised objection to parts of the evidence that the Prosecutor seeks to tender against him. This judgment resolves an objection to some hearsay evidence the subject of a revised hearsay notice served on 3 August 2020 (Exhibit VDF).

3. [3]

   The evidence subject of the hearsay notice relates to representations made by a Mr Yehia Zakaria on 4 October 2018. These representations were made following a formal demand by investigating police pursuant to s 14 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”). The representations related to police inquiries as to the identity of the driver of a car (a 2001 silver Toyota Avalon registered ALL86U) on 23 January 2017. Mr Zakaria was the last known registered owner of that car. He told the police that he had sold the car long ago and that he sold it to an Asian man in Burwood. He said a number of other things as well. It is the Prosecution case that the car was subsequently set on fire in an attempt to destroy the evidence.

4. [4]

   The hearsay notice indicated that the Prosecution relied on s 65(2)(a), (c) and (d) of the Evidence Act 1995 (NSW). In the course of argument, the Prosecutor abandoned reliance on sub-paragraph (d) of s 65(2) on the basis that there was “no suggestion what Mr Zakaria says is against his interests”. [2] Accordingly, the objection turns on the application of ss 65(2)(a) and (c) of the Evidence Act to the facts and circumstances of the case.

5. [5]

   The evidence to which objection is taken is contained in material tendered on the voir dire in Exhibit VDF, namely:

   1. (1)

      A statement of Plain Clothes Senior Constable (PCSC) Niall Chivers dated 4 October 2018 which describes the conversation between the officer and Mr Zakaria; and

   2. (2)

      The attached “Form of Demand” which appears to be a modified form in which answers containing some of the representations said to have been made by Mr Zakaria are recorded in handwriting and signed by Mr Zakaria on 4 October 2018.

6. [6]

   Also relevant to the objection is the statement of a witness now known (in this trial at least) as Leonard Rivers: Exhibit VDA, Volume 1, Tab 6 especially at paragraphs [71]-[72] and [84]-[87]. Mr Rivers is in an important witness in the case. Amongst many other things, Mr Rivers is expected to give evidence of the acquisition of a car that was used in the attempted murder on 23 January 2017. If he gives evidence consistent with his statement dated 25 January 2018, Mr Rivers will say that the car was obtained from some local drug users in exchange for an “8 ball” of Ice and that the transaction took place next to a park opposite Westfield at Burwood.

7. [7]

   There is no dispute that Mr Zakaria is unavailable to give evidence as he is dead: s 65(1) of the Evidence Act. A letter from the State Coroner’s Court dated 26 May 2020 confirms his death.

8. [8]

   The Prosecution case is that the vehicle owned by Mr Zakaria was set on fire late on 23 January 2017 in Wareemba in Sydney’s inner west. A neighbour took a video of the car while it was on fire and police officers who attended the scene recorded the registration number. The Prosecution alleges that Mr Al Batat used this vehicle earlier that evening in the attempt to shoot Mr Jia in the vicinity of Bexley North. The Prosecution relies on the hearsay evidence to establish that Mr Zakaria sold the car to an “Asian guy” at Burwood and the deal was arranged by his friend, Neamh English. This evidence can potentially provide support for the evidence of Leonard Rivers that the accused, Mr Luo, bought a car and that the purchase was arranged by Mr Al Batat, and various details of the acquisition of the vehicle.

9. [9]

   Mr Al Batat objects to the evidence on two bases. First, he says that reasonable notice was not given by the Prosecution pursuant to s 67 of the Evidence Act. Second, he submits that the evidence does not fall within any of the relevant exceptions to the hearsay rule relied on by the Prosecution in its revised hearsay notice.

10. [10]

    Counsel for Mr Luo supported the objection made by Mr Al Batat. [3]

The requirement for reasonable notice

1. [11]

   Section 67 of the Evidence Act provides (relevantly):

2. [12]

   Mr Al Batat submits that reasonable notice was not given because the hearsay notice was not served until 31 July 2020 and the amended notice was only served via email on 3 August 2020 (Exhibit VDK).

3. [13]

   The Prosecutor relies on a letter sent by the Director of Public Prosecutions to Mr Al Batat’s solicitor on 2 April 2020 (Exhibit VDG). This correspondence indicated the Prosecutor’s intention to rely on the hearsay evidence of PCSC Chivers. Under the heading “Vehicle ALL 86U – Yehia Zakaria” the letter said:

4. [14]

   The Prosecutor submitted that this put the accused on notice that the hearsay evidence was relied on and that, apart from the requirement in s 67 that the notice specify the particular provisions on which the party seeking to tender the evidence relies, the letter otherwise fulfilled the notice requirement.

5. [15]

   At the time of this letter, evidence about the car fire had not been served. Between 2 April and 31 July 2020, the Prosecution did not again foreshadow the use of Mr Zakaria’s representations, and did not respond to a notice of objection which said that objection was taken to the admission of any of Mr Chivers’ evidence, comprised of out of court conversations with any witness or non-witness. In an outline of objections dated 10 July 2020 (MFI 28), Mr Al Batat’s lawyers indicated:

6. [16]

   This objection was restated in a further outline of objections sent on 20 July 2020 (MFI 30) in response to the provision of an updated witness list and updated list of statements, which included the statement of Mr Chivers and the relevant Form of Demand.

7. [17]

   While it was conceded that the evidence was relevant, Mr Al Batat argued that if adequate notice was provided, further inquiries would have been made into Mr Zakaria’s background, alleged drug addictions, and criminal associations.

8. [18]

   While the letter of 2 April 2020 did not comply with the notice requirements provided for in s 67, it did provide a clear indication that the prosecution intended to rely on the hearsay statements of Mr Zakaria through the evidence of Mr Chivers. Accordingly, a form of notice was provided to the accused in April 2020, some three to four months prior to the commencement of the trial. The ongoing correspondence and failure to respond to the notices of objection muddied the water but at no stage did the Prosecution abandon its stated intention to press the hearsay evidence. The Prosecutor acknowledged that the failure to serve a formal hearsay notice was an oversight. Once the oversight was realised, formal notice was served as soon as practicable.

9. [19]

   I accept that the accused may have undertaken further investigations into the credibility of Mr Zakaria (his criminal associations, drug use and so on) had he been given clearer and proper notice. However, there is material already available to impugn Mr Zakaria’s reliability. It is clear (on the prosecution case) that he was a drug user desperate enough to trade his car for methylamphetamine. If the evidence is otherwise admissible I would make any direction under s 67(4) conditional on the prosecution providing the accused with Mr Zakaria’s criminal record and any police holdings relevant to his credibility. Because of the expected length of the trial, there is time for the accused to obtain information that may be used to impugn Mr Zakaria’s credibility posthumously.

10. [20]

    The relevant factors in s 192 of the Evidence Act tend to favour the giving of a direction under s 67(4). In particular:

    1. (1)

       There will be no significant increase in the length of the trial;

    2. (2)

       Any unfairness to Mr Al Batat is able to be ameliorated and managed;

    3. (3)

       The evidence is potentially important;

    4. (4)

       The proceedings involve allegations of very serious criminal offending; and

    5. (5)

       A direction can be made requiring the Prosecution to assist the accused in obtaining evidence relevant to Mr Zakaria’s credibility.

Exceptions to the hearsay rule relied upon by the prosecution

1. [21]

   Having abandoned its reliance on sub-paragraph (d), the Prosecution relies on s 65(2)(a) and (c) which provide:

2. [22]

   To determine whether the representations made by Mr Zakaria, or any of those representations, are caught by either of these exceptions to the hearsay rule it is necessary to consider closely the content of the representations, the circumstances in which they were made and a number of statutory provisions.

The circumstances in which the representations were made

1. [23]

   During their investigation, police obtained information that a 2001 silver Toyota Avalon registered ALL86U was used in the course of the attempted murder of Jun Jia on 23 January 2017. They ascertained that the registered owner of the vehicle at that time was Yehia Zakaria and approached him to make a formal demand under s 14 of LEPRA, requiring him to disclose the identities of the occupants of the vehicle at the relevant time.

2. [24]

   Mr Chivers’ statement (see Exhibit VDF) sets out the circumstances of the conversation and annexes a document, signed by Mr Zakaria. The conversation occurred on 4 October 2018, that is, about 1 year and 9 months after the attempted murder.

3. [25]

   Police approached Mr Zakaria at his home. The initial conversation is recorded in paragraph [5] of the statement:

4. [26]

   Investigating police proceeded to interrogate Mr Zakaria’s mobile telephone. This is set out in paragraphs [6] to [8] of the statement:

5. [27]

   On no view was this part of any formal demand process permitted under LEPRA. Mr Zakaria was not informed of any rights he may have had to refuse police access to his telephone or to decline to comply with their requests.

6. [28]

   By that stage the investigators had obtained the information that Mr Zakaria may have been required to provide under the legislation. However, they then went through a formal demand process and recorded the exchange in hand writing on a pre-prepared form. The questions went beyond what was required by the provisions of LEPRA. This is recorded in paragraphs [9] to [11]:

7. [29]

   Mr Chivers recorded Mr Zakaria’s demeanour throughout their conversation in paragraph [13]:

8. [30]

   Mr Rivers provided a version of events concerning the acquisition of the car in his statement dated 25 January 2018. As Senior Counsel for Mr Al Batat pointed out, the use that can be made of Mr River’s evidence is limited. As I explain below, it is not part of the circumstances in which the representation was made and cannot be used to inform the determination under s 65. For present purposes, Mr Rivers described the people from whom the car was purchased as “Ice” users and said that one of his confederates described them as “just junkies”.

Section 65(2)(a): Was the representation made under a duty to make that representation or to make representations of that kind?

1. [31]

   Section 14 of LEPRA is (relevantly) in the following terms:

2. [32]

   Section 17 provides:

3. [33]

   The first question to be asked when determining whether Mr Zakaria’s evidence falls within the exception in s 65(2)(a) is whether a person complying with a form of demand under s 14 of LEPRA is under a duty to make a representation or representations of the kind contemplated by the relevant paragraph of the Evidence Act. The second question, if the relevant duty exists, is whether the duty to make representations extends to representations made in response to questions asked of Mr Zakaria that he was not under a legal obligation to answer.

4. [34]

   Mr Al-Batat submits that Mr Zakaria was not under any duty of the kind contemplated by s 65(2)(a). However, if there is such a duty, “it is a duty on an owner to provide the identification of the driver or passenger” of the vehicle used in connection with the indictable offence. Any such duty does not extend to answering questions outside the scope of s 14 of LEPRA.

5. [35]

   Mr Al Batat submitted initially that Mr Zakaria was not the “owner” of the vehicle for the purposes of s 14 of LEPRA. [4] This was based on the definition of “owner” in s 3 of LEPRA:

6. [36]

   Section 4 of the Road Transport Act 2013 (NSW) provides:

7. [37]

   Section 10 of the Road Transport Act provides a definition of “responsible person”:

8. [38]

   Section 8 of the Road Transport Act also provides the “meaning of terms relating to registered operators”:

9. [39]

   Section 64 of Road Transport Act provides:

10. [40]

    Mr Al Batat’s initial position was based on the evidence before the Court at that time and drew its force from the definition in s 10(1)(a) of the Road Transport Act and the fact that Mr Zakaria had disposed of the vehicle by 23 January 2017. However, the following day the Prosecutor tendered additional material including the registration records for the vehicle. [5] He also provided further written and oral submissions. [6] The additional evidence brought into play the provision in s 10(1)(c) and, it having been clarified that the vehicle was no longer registered, Ms Rigg SC conceded that “it would seem to make Mr Zakaria an owner in the relevant sense.” [7]

11. [41]

    I accept the position finally agreed upon by the parties, that Mr Zakaria was the owner of the car for the purpose of ss 14 and 17 of LEPRA at the time of his conversation with Mr Chivers.

12. [42]

    Mr Al Batat submitted that, even though the LEPRA provisions entitled the police to make the formal demand of Mr Zakaria, and obliged him to provide the information required by the section, this did not constitute a “duty” under s 65(2)(a). Reliance was placed on the case of R v O'Meally [1952] VLR 499. That case was decided under the common law exception described by Stephen Odgers as relating to “statements by a person now deceased made in the course of a legal duty to observe and record.” [8] O’Meally concerned a deceased police officer who gave a description of the person who shot him. In the course of a criminal trial, Coppel AJ decided that the description did not fall within a recognised common law exception to the hearsay rule. His Honour held:

13. [43]

    The decision of a single Judge in Victoria decided before the introduction of the Evidence Act is not a particularly persuasive authority although I am grateful to Senior Counsel for drawing it my attention. Odgers says that the common law exception required there to be “no motive for the deceased to state other than the truth” and notes the difference between the common law requirement that the maker of the hearsay statement be deceased, and the provision in s 65 which requires only that the maker be unavailable (as that expression is defined in the Evidence Act). The author also says that under s 65 “the duty need not be a legal duty”.

14. [44]

    In R v Keir (No 2) [2016] ACTSC 394, Refshauge J considered the scope of the “duty provision” in s 65(2)(1) the Evidence Act 2011 (ACT). His Honour said:

15. [45]

    I agree with those observations. His Honour went on to posit:

16. [46]

    This was a purely obiter observation but the provisions to which his Honour referred are in fairly similar terms to the provisions in ss 14 and 17 of LEPRA. [9]

17. [47]

    I accept, for the purpose of the hearsay exception in s 65(2)(a), that ss 14 and 17 of LEPRA impose a relevant “duty” on the owner of a motor vehicle to provide the information referred to in those provisions. However, the duty does not extend beyond representations required by those sections, that is:

18. [48]

    Mr Zakaria provided more information than he was required to pursuant to the obligations created by ss 14 and 17 of LEPRA. Those additional representations do not fall within the exception created by s 65(2)(a).

19. [49]

    Pursuant to s 65(2)(a), I will allow evidence of the following representations:

    1. (1)

       Mr Zakaria sold the vehicle “ages ago”.

    2. (2)

       He sold it to an “Asian guy”.

    3. (3)

       The Asian guy was described as “White shirt, grey shorts, sneakers, short black hair little bit medium hair still short, might have had glasses on.”

20. [50]

    I will not allow, under this exception, the remaining representations made by Mr Zakaria. In particular, unless otherwise admissible, I will not allow the observation that the purchaser was “kind of intimidating and scary”, that Mr Zakaria travelled to Burwood to sell the car, that the sale price was “one and half grand” and that he accepted drugs in lieu of cash in payment for the car. If the signed form of demand is edited according to those rulings, I will allow the document to be tendered.

Section 65(2)(c): Were the representations made in circumstances that make it highly probable that the representations are reliable?

1. [51]

   Section 65(2)(c) requires the Court to focus on the circumstances in which the hearsay representations were made. It was held in R v Ambrosoli (2002) NSWLR 603; [2002] NSWCCA 386 that the correct approach to this provision is to focus on “the circumstances of the making of the representation to determine whether it is … highly probable that the representation was reliable” and to exclude from consideration “evidence tending only to prove the asserted fact”. [10] The significance of this is that the statement made by Mr Rivers must, for this purpose, be disregarded. The fact that details provided by Mr Rivers, such as the transaction taking place in Burwood and the fact that the vendors accepted drugs for payment, are not to be taken into account.

2. [52]

   The Prosecutor submitted that the fact that Mr Zakaria was under a legal duty and was told part way through the conversation that the recording could be used in court suggested the circumstances were such that it was highly probable that the representations were reliable. I am unable to accept this submission. It is contrary to the experience of the courts which are constantly confronted with contradictory versions of “the whole truth”, each of which is given on oath. It is also inconsistent with the decision in Munro v The Queen [2014] ACTCA 11. In Munro, Refshauge ACJ and Penfold J concluded that the test would not be satisfied “simply because [the representation] was made to a police officer or because it was made in the context of an understanding that a false statement would expose the maker to prosecution”: at [14]. Their Honours noted at [11] that acknowledging a legal obligation to tell the truth “does not necessarily make a person’s representation reliable”.

3. [53]

   Mr Zakaria was told that he was under an obligation to provide the information. His initial response was unusual: “Actually don’t tell me [what happened] I don’t want to know.” The police conduct in interrogating the telephone numbers stored in his phone and in providing him with part of the traditional “caution” may have suggested to him that he was under suspicion of involvement in wrongdoing of some kind. His connection with the alleged perpetrators – they were his drug dealers according to Mr Rivers – and the temporal proximity to the events under investigation may give rise to a suspicion that he was involved in, or aware of, the events surrounding the shooting or the destruction of the car. None of these matters suggest that the circumstances were such that it was “highly probable” that his statements and representations were reliable.

4. [54]

   There was also his demeanour as recorded by Mr Chivers. Mr Zakaria was “fidgety, his hands were always moving, either rubbing his face, rubbing his hands or taking them in and out of his pockets”, he was “tapping his legs up and down” and he “spoke quickly and softly”. This conduct is suggestive of nervousness or drug use.

5. [55]

   Senior Counsel for Mr Al Batat submitted that Mr Zakaria “has every reason to give a false account of having disposed of the vehicle before such point in time [as it was used in the shooting and burned] and/or obfuscating who he had provided it to if he disposed of it” because he is a man whose car was used in criminal activity. In such circumstances, it would be difficult to reason that representations made would be reliable. There is a degree of speculation in the suggestion that Mr Zakaria was involved in the malfeasance which brings the six accused men to the Supreme Court. I have considered the submission but given it limited weight.

6. [56]

   I have considered the Prosecutor’s submission that the interaction between the police and Mr Zakaria can be broken into three stages. The first stage being before the form of demand was administered (paragraphs [5] - [8] of Mr Chivers’ statement), the second stage being after the form of demand was administered but before the formal caution (paragraph [9]) and the third stage after Mr Zakaria was formally cautioned (paragraph [10]ff). While it is true that there were three distinct stages to the interaction, I do not accept that any of those stages amounted to circumstances that made it “highly probable” that the representations were reliable.

7. [57]

   In Conway v The Queen [2000] FCA 461; 172 ALR 185 it was held at [146] that the requirement “that it be ‘highly probable’ that a representation be ‘reliable’ in order to be admissible is an onerous one”.

8. [58]

   The prosecution has not satisfied that requirement.

9. [59]

   Apart from the evidence referred to above at [49], which itself may attract a warning under s 165(1)(a) of the Evidence Act, the evidence is not admissible.

Rulings and directions

1. [60]

   For those reasons, I make the following rulings and directions:

   1. (1)

      The evidence contained in the hearsay notice (Exhibit VDF) is inadmissible except for that encompassed by the direction in order (2);

   2. (2)

      Pursuant to s 67(4) of the Evidence Act (NSW) 1995, I direct that s 65(2)(a) applies to evidence of the following representations made by Yehia Zakaria:

   3. (3)

      The direction in (2) is conditional upon the Prosecution providing the accused with evidence relevant to the credibility and character of Yehia Zakaria including: