R v Al Batat & Ors (No 21)

1. [1]

   In the course of the evidence of the witness known in this trial by the names Jian Feng Weng, “Sifu”, “the Master” and “James”, I refused an application by the Prosecutor under s 32 of the Evidence Act 1995 (NSW) but subsequently granted leave under s 38 for the Prosecutor to question the witness as though he was cross-examining him. Later I granted a similar application in relation to one piece of evidence but refused leave in relation to another. These are my reasons for those decisions.

2. [2]

   Mr Weng was the owner of 5 Kennedy St, Guildford, which was also used as a makeshift Buddhist Temple. He was granted bail and was released from custody on 31 January 2017. Whilst he was in custody Mr Weng entrusted the accused, Ying Cheng Luo, to take care of the Temple and his possessions. Mr Weng returned home to find that his premises had been ransacked and says that about $500,000 of his property was missing. The missing property included a number of bottles of first growth Bordeaux (Chateaux Lafite, Latour and Mouton) and several bottles of a well-known, and arguably overpriced, domestic Shiraz. The next day, 1 February 2017, Mr Weng made arrangements for Mr Luo to attend the Temple. Mr Weng also made arrangements for Jun Jia, [1] the intended victim of the crimes alleged by the prosecution, to attend the Temple. Mr Jia brought a friend with him, Qin Wu (also referred to by Mr Weng as "Aqin") who was shot and killed that night.

3. [3]

   The prosecution case is that Mr Luo, along with Ian Fan and Jaiyu Liu attended the Temple on 1 February 2017 pursuant to a joint criminal enterprise to kill Mr Jia. That joint criminal enterprise arose out of a contract to kill Mr Jia that was issued by a different man named James as a result of an unpaid drug debt. Each of the accused denies that there was a joint criminal enterprise and they say they attended the Temple at the request of Mr Weng. In the case of Mr Liu, who is alleged to be the shooter, and perhaps others, self-defence may also be raised. Some of the evidence may give rise to a suggestion that the gun went off in the course of a struggle rather than being discharged intentionally.

4. [4]

   As an eye witness to events giving rise to one count of murder and another of attempted murder, Mr Weng’s account of the events on 1 February 2017 is of critical importance to the issues in the trial.

5. [5]

   Mr Weng made a statement to police early on the morning of 2 February 2017 – hours after the incident took place. In that statement he described the events of the night in detail. During examination in chief, Mr Weng described being very “sick” at the time of giving his statement as he was suffering from severe treatment-resistant schizophrenia. Mr Weng gave evidence that he experiences auditory and visual hallucinations and sometimes has difficulty distinguishing between illusion and reality.

Application to refresh memory

1. [6]

   The Prosecutor questioned the witness about whether he had seen a gun:

2. [7]

   The matter the Prosecutor sought to raise was an application for leave under s 32 of the Evidence Act to allow the witness to use his statement in the witness box to refresh his memory. Mr Weng’s statement was tendered on the voir dire (Exhibit VDV). The Prosecutor sought leave to refresh the witness’s memory by reference to the following paragraphs of his statement:

3. [8]

   Senior Counsel for Mr Al Batat submitted that the application was “a little premature”. She argued that the witness might give evidence in accordance with the statement if the Prosecutor persisted in asking non-leading questions so that the evidence could emerge in narrative form based on the witness’s memory. Apart from Mr Bayliss, who took no position on the application, Ms Rigg’s submissions were adopted by the other accused.

4. [9]

   Section 32 of the Evidence Act provides:

5. [10]

   At the point at which the application was made, it was not clear whether the witness would be able to recall the events without resorting to his statement: s 32(2)(a). While that is not determinative, it is probably the most significant question in determining an application for leave under this section. Accordingly, I accepted the submission that the application was premature and declined to grant leave.

6. [11]

   The Prosecutor considered asking questions on the voir dire to see if the s 32 application could be sustained but counsel for the accused objected to that course. [3]

7. [12]

   In the presence of the jury, the Prosecutor renewed his attempt to adduce evidence of the events of 1 February 2020 but also asked questions going to the issue of whether leave should be granted under s 32 of the Evidence Act. [4] In spite of the earlier objection to the Prosecutor asking questions in the absence of the jury, counsel for Mr Luo objected in front of the jury to some of the questions in the latter category on the grounds of relevance. [5] Mr Weng gave the following evidence over such an objection:

8. [13]

   When objection was taken on a fourth occasion, the jury was excused and the Prosecutor explained that he was attempting to establish that the witness’s memory was better at the time of making the statement. The parties then agreed that the witness could be asked that kind of question in the absence of the jury. The following exchange then occurred:

9. [14]

   In light of that response, the Prosecutor abandoned the s 32 application and instead made an application under s 38 of the Evidence Act to cross-examine the witness on his statement.

The section 38 applications

1. [15]

   The Prosecutor submitted that he should be entitled to cross-examine in relation all three matters referred to in s 38(1) of the Evidence Act. That sub-section provides:

2. [16]

   It did not appear to me that the witness was not making a genuine attempt to answer the questions addressed to him. However, I was satisfied that a number of his answers were inconsistent with the contents of his statement and that, because of the importance of those matters to the prosecution case, his evidence was properly described as unfavourable in that respect: cf Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57 at [44] (Gaudron J). That the evidence was unfavourable was generally accepted by counsel for the accused.

3. [17]

   Senior Counsel for Mr Al Batat submitted that there was relevant unfairness for the purpose of s 192(1)(b) of the Evidence Act because of the necessity to explore Mr Weng’s psychiatric problems. The material on that issue was extensive and so the extent to which granting leave would result in an undue waste of time was also an issue: s 192(1)(a). Counsel for Mr Luo tendered a report of Dr Furst, a psychiatrist (Exhibit VD16). The report demonstrated that the witness has suffered from a severe psychiatric illness for a long period of time. Counsel submitted that, because of the operation of s 60 of the Evidence Act, it was unfair to allow the evidence of what was said in the statement to be placed before the jury in the form of cross-examination. The other accused took a similar approach.

4. [18]

   Having considered matters under s 192 relevant to the grant of leave, I was satisfied the Prosecutor should have leave. I did not accept that there was any relevant unfairness to the accused: s 192(1)(b). The witness’s mental health issues were capable of being established and the jury would be in a position to evaluate the credibility of any utterance made by him either at the time of the statement or in Court. I accepted that there would be a lengthening of the trial (s 192(2)(a)) but the importance of the evidence and the nature of the proceedings outweighed that consideration: s 192(2)(c) and (d). In the end, I was dealing with the eye witness to an alleged homicide. Finally, there was power to limit the use of the evidence under s 136 of the Evidence Act if the witness did not adopt the contents of his statement as being true. That is, in spite of s 60 the evidence could have been limited to be used only in an assessment of the witness’s credibility. A similar application in relation to another witness was refused but Mr Weng’s psychiatric condition created a more powerful case for limitation. That power to limit the use of the evidence had the capacity to reduce, if not eliminate, the kind of unfairness referred to by counsel opposing the grant of leave: cf s 192(2)(e).

5. [19]

   Having obtained the grant of leave, the Prosecutor took Mr Weng carefully through his statement. Mr Weng agreed that he had made the statements attributed to him and that those statements were true or, at least, reflected his honest recall and account at the time he made the statement. Towards the end of the evidence in chief the Prosecutor made a further application under s 38. This involved two pieces of evidence contained in the statement but in relation to which the witness did not give evidence.

6. [20]

   The first piece of evidence was an observation in the statement that Da Yu (that is, Mr Liu) “fired more bullets into the room Xiao Jun was in, I think four times. It looked like Da Yu was trying to reload the gun”. The witness was asked about the relevant time period and gave no evidence consistent with his statement. His evidence was inconsistent and unfavourable. The s 192 considerations clearly militated in favour of the grant of leave and leave was granted on this occasion.

7. [21]

   The second area was more controversial and I refused leave to cross-examine on the statement. In his evidence before the jury, Mr Weng was asked about what happened after he heard the gunshot sounds. In particular he was asked whether he heard Mr Luo say anything. The exchange was recorded as follows: [8]

8. [22]

   The Prosecutor sought to cross-examine on paragraph [21] of his statement where Mr Weng said:

9. [23]

   While the evidence given by the witness was not exactly in accordance with the statement, and while the statement version was more powerful evidence of a specific intention, the version given in evidence was not unfavourable to the prosecution. Further, it was incomplete rather than inconsistent. In the circumstances and if accepted, it provides powerful evidence of intention. Finally, there was nothing in the substance of the evidence, or in Mr Weng’s demeanour in giving it, that caused me to conclude that he was not making a genuine attempt to give evidence. When parts of his statement were put to him, Mr Weng accepted both that he said the things recorded in the statement and that they were his best recollection at the time.

10. [24]

    Against the possibility I was wrong in my determination that the failure to give evidence of the “finish him” comment was neither unfavourable not inconsistent with the statement, I considered the factors in s 192 of the Evidence Act. My view was that the unfairness in permitting such dramatic evidence to come before the jury by way of cross-examination of a witness with substantial mental health issues outweighed the factors militating in favour of permitting the prosecution to undertake further cross-examination of its own witness. I considered the seriousness of the charges and the importance of the evidence, but the unfairness outweighed those matters. Accordingly, leave to cross-examine on that issue was refused.