R v Al Batat & Ors (No 10)

This judgment relates to an objection taken by the accused, Jiayu Liu, and should be read alongside a judgment published on the same day and known as R v Al Batat (No 9) [2020] NSWSC 1101 which raises a similar issue concerning the scope of the exception to the hearsay rule governed by s 87 of the Evidence Act 1995 (NSW) and the common law co-conspirator’s rule.

Mr Liu objects to evidence the prosecution proposes to lead from a witness, Ms Wai Li (see MFI 53). The evidence is contained in paragraph [99] of Ms Li’s statement dated 1 May 2019: Exhibit VDA, Volume 1, Tab 9. The evidence concerns representations allegedly made to Ms Li by a co-accused Ying Cheng (“Johnny”) Luo. Ms Li was, on the prosecution case, a trusted friend and associate of Mr Luo. Mr Luo made an unsuccessful attempt to exclude the same evidence in his case, but on a different basis: see R v Al Batat & Ors (No 8) [2020] NSWSC 1095. As I said in the course of that ex tempore judgment, the context and content of the conversation suggests that it occurred on the day after the shooting on 1 February 2017 that gives rise to the relevant counts of attempted murder and murder against Mr Luo, Mr Liu, Ian Fan and Abdallah Al Batat.

The objection arose when counsel for Mr Liu realised that the prosecution intended to lead the evidence not only against Mr Luo but also against her client. This occurred in the course of submissions relating to applications for a separate trial (by Mr Fan) and severance of a count on the indictment (by Mr Luo). To that point, counsel assumed that the evidence was only to be led against the author of the statements, that is, Mr Luo.

The evidence in paragraph [99] of Ms Li’s statement is as follows:

That evidence, admissible against Mr Luo, is prima facie hearsay as against Mr Liu. It is therefore inadmissible pursuant to the hearsay rule, [1] unless it falls within an exception to that rule. The prosecution says it is an admission and therefore admissible pursuant to s 81 of the Evidence Act. The prosecution relies on s 87 and says it is an admission by Mr Liu because it was a representation made by Mr Luo “in furtherance of a common purpose” that he (Mr Luo) had with Mr Liu. I do not accept that submission.

The prosecution submits that the statement was made in furtherance of an ongoing common purpose that the two accused men had not to be detected. As I said in R v Al Batat & Ors (No 9) at [58]-[59], if that submission were generally accepted it would make admissible almost any communication between co-accused after the commission of serious crime. I am unable to accept that this is the proper application of s 87 of the Evidence Act, which is a section which informs the operation of the admissions exception to the hearsay rule in s 81.

The prosecution relies on earlier answers given by Ms Li where she said there was a “’platform’ of people that we could use to contact each other so that we were well informed about what was happening” (at [34]). In that context, she referred to the use of the WeChat messaging service. She referred to an additional use of this platform to find another person known as “Seven”. I accept the earlier part of the interview is capable of establishing that she was a trusted associate of Mr Luo, but I do not accept that this advances the prosecution’s argument for admissibility much, if at all.

The content of the impugned communication does not support the proposition that Mr Luo was attempting to obtain information or keep open the free flow of information, or the proposition that it otherwise advances some common purpose with Mr Liu to avoid detection. The evidence is rather to the contrary. It was Ms Li who contacted Mr Luo and made inquiries about what had happened the night before. Mr Luo’s initial response was evasive; he said “ummm?”. It was only when he was pressed that he provided the information. As Ms Carroll submitted, what he then said did not advance a common purpose with Mr Liu not to be caught. Rather, he provided an account which placed the blame on Mr Liu.

The representation was not made in furtherance of a common purpose shared with Mr Liu. It was no more than a mere narrative of past events. Therefore, the evidence is not admissible against Mr Liu and will not be admitted against him. The jury will be so directed, both when the evidence is adduced (in Mr Luo’s case) and in the course of the summing up.

For those reasons, the evidence in paragraph [99] of Wai Li’s statement dated 1 May 2019 is not admissible against Mr Liu.