R v Al Batat & Ors (No 16)

On the tenth day of the trial, Thursday, 10 September 2020, I granted leave to the Prosecutor, pursuant to s 38 of the Evidence Act 1995 (NSW), to question the witness Wai Li as though he were cross-examining her, about:

I said I would provide reasons for that decision later and these are those reasons.

Ms Li made a statement on 1 May 2019. At paragraph 99 she provided an account of a WeChat communication with Johnny (who the parties agree is a reference to the accused Mr Luo):

There is no dispute that the reference to Dayu is a reference to the accused Mr Liu and the reference to Xiao Jun is a reference to the first witness, Jun Jia. Three evidentiary rulings have already been made in respect of this paragraph. On 18 August 2020, I ruled that this evidence was admissible against Mr Luo: see R v Al Batat & Ors (No 8) [2020] NSWSC 1095. On 21 August 2020, I decided that the evidence was not admissible against Mr Liu: see R v Al Batat & Ors (No 10) [2020] NSWSC 1107. On 10 September 2020, I refused to grant leave under s 32 of the Evidence Act 1995 (NSW) to allow the Prosecutor to place the statement in Ms Li’s hands to refresh her memory: see R v Al Batat & Ors (No 15) [2020] NSWSC 1227.

The witness commenced giving evidence on Wednesday, 9 September 2020. Towards the end of the day, the Prosecutor made the application under s 32 and her evidence was adjourned overnight. The evidence relating to the WeChat exchange given to that point was set out in R v Al Batat & Ors (No 15) at [2]. The next day Ms Li gave further evidence concerning the relevant conversation. This included:

An issue arose as to the correct interpretation of the Mandarin word that was translated as “misfire”. Ultimately, it was accepted that the correct translation of the Mandarin word (or characters) used by the witness was that the gun discharged or “went off” by accident. [4]

Shortly after the exchange set out in [5] the Prosecutor asked to make an application in the absence of the jury. The application, pursuant to s 38 of the Evidence Act, was that the Prosecutor be permitted the ask questions as if he were cross-examining the witness in relation to evidence she gave that was unfavourable and evidence of prior inconsistent statements. He also sought to suggest that the witness was not making a genuine attempt to recall the events and that Ms Li was deliberately giving evidence to assist Mr Luo.

The application was opposed by Mr Luo, Mr Liu, Mr Al Batat, Mr Fan and Mr Li. Mr Bayliss took no position as the evidence could not impact on his case. Counsel made a variety of submissions. Without attributing particular arguments to particular counsel, and speaking generally, the submissions included:

I formed the view that the evidence, or parts of it, was unfavourable to the prosecution. One way in which the prosecution puts its case is that the men went to the Temple to shoot and kill Jun Jia. Two of them, Mr Liu and Mr Luo, went in armed and a weapon was discharged. To say the gun went off accidentally is unfavourable to that case. The reference in the statement to the victim being shot “by mistake” does not appear to be a suggestion that the gun went off accidentally. Rather, it appears to be a reference to the wrong person having been shot.

I was also satisfied that the evidence was inconsistent with the witness statement in at least two respects. First, the evidence that the gun misfired (or discharged accidentally) was inconsistent with the assertions in paragraph 99 that Mr Liu “took out the gun and shot within minutes” and that “he was going to kill Xiao Jun, but he killed the deceased.” Second, the evidence that no name other than “Dayu” (Mr Liu) was mentioned in the chat was inconsistent with the statement’s clear reference to the alleged target of the shooting, “Xiao Jun” (Jun Jia).

I was satisfied that, if the witness did not adopt the statement, it would be relatively easy to direct the jury that the evidence could not be used to establish any fact adverted to in the alleged WeChat conversation or as an admission by Mr Luo, and could only be used in assessing Ms Li’s credibility.

I was not satisfied that the state of the evidence at the time of the application, or the performance of the witness to that point, was such that leave should be granted permitting the Prosecutor to make a general attack on the witness’s credibility or to suggest that she was attempting to give evidence favourable to Mr Luo.

I took into account the fact that the Prosecutor put the parties on notice as soon as he could of his intention to make the application: s 38(6)(a) of the Evidence Act. He had done this in making the s 32 application the day before. He was not on notice that the witness’s evidence would be inconsistent with her statement until she gave the evidence. I took into account the fact that the witness was likely to be questioned extensively by, at least, counsel for Mr Luo: s 38(6)(b).

I also took into account relevant matters under s 192(2) of the Evidence Act. The evidence was not likely to add unduly to the length of the trial. Any risk of unfairness to the other accused could be cured by direction. The evidence was important in the prosecution case against Mr Luo and he is charged with murder.

For those reasons, I was satisfied that leave under s 38 should be granted but limited to the matters referred to in the first paragraph of this judgment.