R v Al Batat & Ors (No 20)

During the course of the evidence of a witness known as Martina Sellers, I granted leave under s 32 of the Evidence Act 1995 (NSW) allowing the witness to use her statement in an attempt to revive her memory. I also granted leave under s 38 of the Evidence Act allowing the Prosecutor to question the witness as though he was cross-examining her. Each application for leave was opposed by some defence counsel but not by all. In one instance, the approach taken by counsel was somewhat mysterious. These are my reasons for these decisions. The evidence of the witness has since given rise to a more difficult and profound question. [1]

Martina Sellers is a pseudonym. The NSW Commissioner of Police applied for various orders to protect Ms Sellers’ identity and her safety. Some of these applications were granted; others were not. [2] It is common ground that Ms Sellers was present with Mr Bayliss when he travelled from the Central Coast and attended a meeting with Mr Liu at his apartment in Burwood on 1 February 2017. The prosecution alleges that Messrs Luo and Fan were also present at the apartment in Burwood for a period of time. It is the prosecution case that Mr Bayliss supplied Messrs Liu, Luo and Fan with two guns and they supplied him with drugs. The defence case, in each instance, appears to be that drugs were supplied but guns were not. Messrs Liu, Luo and Fan, as well as Mr Al Batat, are charged with murder (count 4 on the indictment) and an attempted murder (count 5 on the indictment) that allegedly took place later on the same day. They are alleged to have used the guns provided by Mr Bayliss although neither of those guns is said to be the murder weapon. Mr Bayliss is only charged with two counts of supplying the firearms (counts 2 and 3 on the indictment). Ms Sellers’ account is central - perhaps critical - to the case against Mr Bayliss and is an important part of the circumstantial case against Messrs Luo, Liu, Fan and Al Batat.

Ms Sellers’ made a statement to the police on 29 June 2017, that is, around 5 months after the events to which it relates. It was an induced statement. The police told Ms Sellers that nothing she said would be used against her. She admitted drug use and involvement in the illicit transactions that would give rise, at least, to criminal liability for concealing serious offences and perhaps complicity as an accessory. She has been charged with no offences arising from her involvement in the events of 1 February 2017. The statement sets out in some detail the events leading up to and including the meeting at the apartment in Burwood. Of particular relevance to the present applications (and the application to limit the use of the evidence) is the fact that Ms Sellers referred to Mr Bayliss having a gun or guns in the car, taking them into the apartment and the property or possession of those guns passing to the men inside the apartment at about the same time as they supplied Mr Bayliss with a sizeable chunk of methylamphetamine. She also spoke of counting money in the car and that money being handed over to one of the three men with whom Mr Bayliss was dealing.

Ms Sellers was due to commence giving evidence on Tuesday, 22 September 2020. She did not attend Court. Attempts by the Prosecutor and investigating police to contact her were unsuccessful. The trial was adjourned until Wednesday, 23 September. Again, Ms Sellers did not attend. Ongoing attempts to contact her, including through her solicitor who appeared for her in other applications earlier in the trial, were unsuccessful. A bench warrant was issued for her arrest. On Thursday, 24 September 2020, having been made aware of the existence of the warrant, Ms Sellers came to court, under her own steam but late.

She gave evidence on the voir dire in which she indicated she objected to giving evidence that might tend to incriminate her. I upheld her objection but required her to give evidence with the protection of a certificate under s 128(3) of the Evidence Act. [3]

When called to give evidence before the jury, she was questioned by the Prosecutor and demonstrated either an astonishingly bad or selective memory or a powerful desire not to assist the prosecution in relation to the gun supply charges. Her evidence before the jury commenced as follows:

The Prosecutor made an application pursuant to s 32 of the Evidence Act for the witness to use her statement in the witness box to attempt to refresh her memory. In the alternative, he sought to make an application to question the witness in the form of cross-examination under s 38 of the Evidence Act. Ms Sellers’ statement was tendered on the voir dire (Exhibit VDU) and marked for identification in the trial (MFI 24).

While there was some mystery surrounding the approach taken by counsel for Mr Luo, [5] only Mr Norrie (appearing for Mr Bayliss) opposed the application to refresh the witness’s memory in any serious way. [6] His opposition was based on the witness’s assertion that her memory was no better three years ago than it was today. As I said in the course of argument, the Prosecutor was not very persistent in attempting to have the witness recall (or give evidence of) the events set out in some detail in her statement. An issue arose as to whether matters relevant to s 32 should be canvassed on the voir dire or in the presence of the jury. [7] Mr Bayliss and Mr Liu opposed this course and I accepted their submission that, in the circumstances, the matter should unfold before the jury so that it could see and assess the witness’s response.

The Prosecutor raised the fact that the witness appeared to be looking at a large screen in front of the witness box. That screen is a peculiarity of the courtroom in which the trial is being conducted. The screen presents a live feed of what purports to be a view of the accused in the dock. It exists, so far as I can tell and as I have been told by Judges who have the misfortune of sitting in this courtroom more frequently, because the presiding Judge cannot see the whole of the dock from their position on the bench. As it is, it only depicts part of the dock and only Mr Fan and Mr Liu (and the ubiquitous Mr Quilter of counsel) can be seen. Mr Al Batat, Mr Luo and Mr Bayliss are in the section of the dock furthest from the bench and the view of those three men is obscured. This is not the only infelicity in the geography of courtroom 6.1 of the Downing Centre. Earlier in the trial, renovations were carried out, at the jury’s request and thanks to the ingenuity of the CEO of the Supreme Court, to ensure the jury was able to fulfil its function (for example, by actually seeing the witnesses).

In any event, the Prosecutor’s observation accorded with my own. Further, when Ms Sellers entered the courtroom and the witness box she appeared to spend some time looking in the direction of the dock and, in particular, identifying where Mr Bayliss was seated.

I rejected the witness’s evidence that her memory was no better three years ago than it was today. [8] I was satisfied of the matters relevant to s 32 and, considered the factors that arose under s 192 of the Evidence Act. One matter that operated on my mind was the fact the witness’s performance to that point was such that I was inclined (provisionally) to grant an application under s 38. However, it was preferable that an attempt be made to have the witness revive her memory before permitting leading questions in the form of cross-examination. Accordingly, I granted leave under s 32 of the Evidence Act.

The witness’s evidence continued:

Paragraphs 16-17 of Martina Sellers’ statement dated 29 June 2017 are in the following terms:

The s 38 application was opposed, at least by Mr Bayliss and Mr Luo. Counsel for Mr Bayliss submitted that the witness’s drug use was such that “it cannot be said that what is recorded in this statement is something which would be regarded as being accurate”. [10] This was said to be relevant to a determination under s 38(1)(b) of the Evidence Act which would permit cross-examination about:

Mr Webb had earlier objected to leave under s 38 when the s 32 application was being canvassed: [11]

The Prosecutor submitted that the application could be granted on the basis that the witness’s evidence was “unfavourable” (s 38(1)(a)) and that she had made a “prior inconsistent statement” (s 38(1)(c)).

I was not satisfied that, up to that point, the witness’s evidence was unfavourable in spite of the observations by Gaudron J in Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57 at [44]. Further, I found it unnecessary to determine whether it was appropriate to allow cross-examination “about whether the witness [had] … made a prior inconsistent statement”. However, based partially on the contents of the statement, I was satisfied that the Prosecutor should have leave to cross-examine about matters which the statement showed she may reasonably have been expected to know about and whether she was making a genuine attempt to give evidence. That conclusion was reached by reference to the evidence given by the witness to that point, my observations of her demeanour (including her pre-occupation with the men seated in the dock), the contents of her statement, and the following matters relevant under s 192:

While no notice had been given of the intention of the Prosecutor to cross-examine his own witness, he was unaware of the difficulties the witness would pose until she commenced giving evidence: s 38(6)(a). It was simply not known whether, and to what extent, Ms Sellers would be questioned by other parties: s 38(6)(b). However, each accused had a right to cross-examine and there was a prospect, given Ms Sellers’ apparent reluctance to co-operate with the Prosecutor, that they might have done so with considerable forensic effect. No counsel opposing the grant of leave raised any submission under s 38(6).

For those reasons, I granted leave under s 38(1)(b) but not, at that stage, under s 38(1)(a) or (c) although I indicated the Prosecutor could revisit those issues later in the evidence if necessary. [12]

The scope of the grant of leave was subject to argument, and inconsistent submissions, in the next few days of the trial. [13] The issue will be canvassed in a subsequent judgment concerning an application to limit the evidence given by Ms Sellers as to what she said in her statement. [14]