R v Al Batat & Ors (No 22)

Last Thursday afternoon, on 1 October 2020, towards the end of the re-examination of Mr Jian Feng Weng, the Prosecutor sought to introduce evidence of two identification procedures undertaken by the witness. Almost all of the six accused men opposed this course. The jury was excused for the remainder of the day and submissions continued on the morning of Friday, 2 October 2020. I ruled the evidence was not admissible in re-examination and the trial continued. I have since concluded the evidence is not admissible at all and may not be led through police witnesses to be called later in the trial. These are my reasons for those conclusions.

Mr Weng was the owner of the property where the shooting of 1 February 2017 occurred. He was an eye witness to some of the events that give rise to the charges of murder and attempted murder. Significant portions of his evidence in chief were adduced by the Prosecutor in the form of leading questions upon the grant of leave under s 38 of the Evidence Act 1995 (NSW). [1] Two such pieces of evidence were that:

The Prosecutor elicited the relevant evidence against Mr Liu as follows:

A short time later he gave the following evidence:

In relation to Mr Luo, the following evidence is relevant to the ruling prohibiting the proposed re-examination:

Later the witness said of Mr Luo:

Mr Weng was cross-examined by counsel for Mr Luo about his mental health. It was established that Mr Weng has severe, chronic, treatment-resistant schizophrenia. He has visual and auditory hallucinations. He becomes paranoid. There was deal of cross-examination on the issue although, compared to the amount of material available to counsel (I was told there is over 800 pages of psychiatric reports and notes), the cross-examination was restrained and relatively confined.

In relation to the evidence he gave against Mr Luo referred to in the preceding paragraphs, the following concession was drawn from him:

Mr Weng made similar concessions in relation to other important aspects of his evidence.

Counsel for Mr Liu also cross-examined Mr Weng to considerable effect. It was established that there was, at least, a real doubt as to whether Mr Weng could possibly have seen what he claimed to see Mr Liu do:

The evidence that the Prosecutor sought to adduce in re-examination would have been admissible had it been elicited in chief. In each instance, it was evidence that the witness participated in an identification procedure in May 2017 and said that he could identify Mr Luo and Mr Liu. Mr Weng also told police what he claimed he saw and heard those accused men do. The Prosecutor summarised the critical parts of the evidence as follows:

Because identification is not in issue, the Prosecutor elected not to adduce the evidence of the things Mr Weng said in the course of the identification procedure. He now contends the evidence is admissible to re-establish Mr Weng’s credibility and arises from matters raised in the cross-examination.

Section 39 of the Evidence Act provides “limits on re-examination”:

It is doubtful that questioning about the identification procedure amounts to a matter “arising out of evidence given by the witness in cross-examination”. Both Mr Liu and Mr Luo challenged the witness’s evidence, and (contrary to some of the submissions) a substantial assault was made on Mr Weng’s credibility. I do not accept Mr Luo’s submission that, because it was not suggested that Mr Weng was dishonest (as he genuinely believes the hallucinations or illusions are real), there was no attack on his credibility. To the contrary, the attack on Mr Weng’s credibility was sustained and effective. The cross-examination focussed on the witness’s psychiatric illness and sought to establish that his evidence may have been the result of visual and audio hallucinations.

The Prosecutor sought to tender video evidence of two identification procedures conducted in May 2017 to enable the jury to make its own assessment of the witness. This was put in this way:

The Prosecutor also submitted:

The Prosecutor played relevant parts of the procedure on the voir dire. [11] In these parts the witness says (in effect) that he saw Mr Liu discharge a firearm and that Mr Luo entered the premises a second time and was then armed. That is, Mr Weng made statements or assertions that were generally consistent with what he said in his original police statement and adopted in evidence under cross-examination by the Prosecutor.

The evidence the prosecution sought to tender is not capable of re-establishing the witness’s credibility. The jury is aware that the witness first made these assertions in his statement made the day after the incident. Establishing that he said, more or less, the same thing three months later during the identification procedure in no rational way answers the attack on credibility that has been made. Insofar as it was submitted that the jury may make its own assessment relevant to an evaluation of psychiatric issues, the jury is not equipped to do that: cf R v Denton [2019] NSWCCA 81 including at [29]-[31].

Further, the Prosecution was aware of Mr Weng’s psychiatric illness when the witness was called. It was predictable that there would be a substantial attack on his credibility and that a large part of that attack would be based around his chronic psychiatric illness and reliance on anti-psychotic medication. If the evidence of Mr Weng’s demeanour in the identification process was admissible to re-establish credibility in relation to his psychiatric illness (or otherwise) it ought to have been adduced during the evidence in chief. Section 108 of the Evidence Act clearly contemplates this by use of “it is or will be suggested” that the evidence “has been fabricated or reconstructed (whether deliberately or otherwise)”. While that section relates to prior consistent statements, both identification procedures include such statements.

A similar issue arose in the course of the evidence of Martina Sellers. The Prosecutor sought to re-open the evidence in chief to tender an identification video part way through the defendants’ cross-examination. The basis of the tender was to re-establish the witness’s credibility. The evidence was permitted because it emerged that there was a misunderstanding as to whether there was any concession as to identification. [12] I expressed misgivings as to whether the evidence was admissible to re-establish credibility. [13] The Prosecutor was permitted to re-open the evidence in chief in order to tender Ms Sellers’ evidence of identification. I raise this here as the earlier incident must have alerted the Prosecutor to the possibility that he may seek to rely on the present identification video as some kind of credibility evidence.

To summarise, I did not allow the evidence to be adduced in the re-examination of Mr Weng because:

I also formed the view that the evidence was not admissible under s 108 of the Evidence Act due to the operation of ss 135 and 137 in the particular circumstances of the case. To understand that conclusion, it is necessary to set out some of the relevant sections of the Evidence Act. Section 101A defines credibility evidence:

Section 102 contains the “credibility rule” and provides that credibility evidence about a witness is not admissible. The sections that follow provide exceptions to the rule. Section 108 relevantly provides:

There was an argument about whether s 108(3)(b) was engaged at all. The controversy arose as a result of the legislature’s choice of language. Counsel for Mr Al Batat referred to a number of cases that dealt with the meaning of word “fabrication” in the context of the common law principle of res gestae and s 65(2)(b) (as opposed to s 108(3)) of the Evidence Act. [14] The word “fabricated” generally implies some deliberate process of making or manufacturing. However, the qualifier in parentheses “(deliberately or otherwise)” means that the words that precede it (“fabricated or re-constructed”) take on a different complexion. I was satisfied, without overwhelming confidence, that a hallucination or illusion seen or heard by a witness with schizophrenia was caught by the breadth of the provision and the inclusion of “non-deliberate” fabrications or reconstructions. Accordingly, the evidence was admissible subject to the discretions in ss 135 and 137.

The probative value of the evidence the Prosecutor sought to introduce to answer the particular credibility attack was slight. The fact that the witness made a consistent statement in May 2017 added little to the narrative that included him making such a statement the day after the shooting on 2 February 2017. The extent to which the jury’s own assessment of Mr Feng’s demeanour could rationally impact on an assessment of his credibility was minimal, if it existed at all. At the same time, the danger of unfair prejudice and the danger that the evidence might result in an undue waste of time was significant. The danger of unfair prejudice lay in the possibility that the jury might misuse the evidence by making an assessment it was not qualified to make in the absence of expert psychiatric evidence. The danger that the evidence would result in undue waste of time arose due to the need for the parties to explore further the psychiatric evidence and possibly call evidence relevant to that issue and Mr Weng’s demeanour at the time of the interview. [15]

In the circumstances I was persuaded that the evidence should be excluded under s 135 because the probative value was substantially outweighed by the danger the evidence might result in an undue waste of time. I was also satisfied that the probative value of the evidence was outweighed by the danger of unfair prejudice to the defendants. Accordingly, s 137 mandated the exclusion of the evidence.

Putting aside ss 135 and 137, I would also have refused leave under s 108(3) of the Evidence Act based on the relevant considerations in s 192 including:

It is for those reasons that I did not permit the Prosecutor to adduce the evidence in re-examination, and have determined that the evidence is inadmissible in any event.