[2020] NSWSC 1556

R v Al Batat & Ors (No 31)

The application to limit the use of Leonard Rivers’ evidence of a conversation with Ying Cheng Luo on 11 or 12 January 2017 pursuant to s 136 of the Evidence Act 1995 (NSW) is granted.

Catchwords

CRIMINAL LAW – hearsay evidence - application to limit use of evidence - admissions by one accused to witness - contract to kill - acceptance of contract - intention to carry out contract - not admissible as an admission against co-accused - in one respect admissible as evidence of contemporaneous representation of speaker’s intention - admissible as circumstantial evidence of subsequent agreement and joint criminal enterprise - appropriate to make an order limiting use of evidence against co-accused

Legislation cited

Evidence Act 1995 (NSW), § 87(1)(c), 66A, 136

Judgment

[1]
An application is made on behalf of the accused, Mr Al Batat, to limit the use of certain evidence given by a witness known as Leonard Rivers earlier in the trial pursuant to s 136 of the Evidence Act 1995 (NSW). The evidence concerned a conversation the witness alleges he had with the accused, Mr Luo, on 11 or 12 January 2017. The evidence was as follows:
[2]
The evidence is clearly admissible against Mr Luo. His case, as I understand it, is that there was no such conversation. Against Mr Luo, this evidence can be used to establish (speaking generally) that:
1. (1)
  The person referred to as "the guy” or "the dog" (which the jury may readily infer from other evidence is Jun Jia) had stolen 3 kilograms of ‘Ice’;
2. (2)
  The person from whom he stole it, James and perhaps Jackie, had taken out a contract on his life; and
3. (3)
  That Mr Luo had accepted that contract.
[3]
Because the evidence is in the nature of an admission by Mr Luo, it is inadmissible hearsay against the other accused. Section 87(1)(c) of the Evidence Act does not apply because there was no common purpose alleged at the time of the conversation. Accordingly, the alleged out-of-court statement cannot be used against the other accused to prove that Jun Jia had stolen Ice, that a contract was taken out on his life or that Mr Luo had accepted that contract.
[4]
However, the part of the conversation where Mr Luo said words to the effect of "Yes" to the question "Are you going to do it?", is - and it is conceded by Senior Counsel that it is - a contemporaneous representation about his intention and is admissible against all of the accused under s 66A of the Evidence Act (as an exception to the hearsay rule). The evidence is capable of supporting the prosecution case, at least inferentially, in relation to the existence and nature of the alleged joint criminal enterprise subsequently formed between Mr Luo and Mr Al Batat, and, some days later, Mr Liu and Mr Fan.
[5]
Each of the other accused, with the obvious exception of Mr Luo, joined Senior Counsel's application. The Prosecutor did not contest that the evidence should be limited in the way suggested.
[6]
Accordingly, I make an order under s 136 of the Evidence Act 1995 (NSW) limiting the use of the evidence in that way. The jury will be so directed.