R v Al Batat & Ors (No 9)

1. [1]

   This is one of a number of judgments arising out of a pre-trial hearing currently taking place before the empanelment of a jury in the trial of six men charged with various offences related to some gangland or drug related shootings that occurred in early 2017. The accused, Ian Fan (also known as “Michael”), objected (inter alia) to nine discrete items of evidence contained in the statements of a witness known either as Witness B or Leonard Rivers (a pseudonym). [1] Originally 11 items of evidence were identified as being subject to similar objections. However, two of those objections were withdrawn. In each instance, the evidence relates to statements or conduct by a co-accused, Ying Cheng Luo (also known as “Johnny” Luo) as reported by Mr Rivers. The Prosecution presses the evidence under the so called “co-conspirator’s rule” and its statutory equivalent in s 87 of the Evidence Act 1995 (NSW).

2. [2]

   In a nutshell, the Prosecution alleges that the target of the shootings (Jun Jia or “Xiao Jun”) obtained 1 kg of methylamphetamine (Ice) from some drug dealers known as James Chen and CC. He failed to pay for the drugs and Mr Chen put out a contract on Mr Jia’s life. Mr Luo accepted the contract and over the coming weeks recruited a number of others to join a criminal enterprise to carry out the contract. There was a failed attempt to shoot Mr Jia on 23 January 2017. That incident gives rise to a charge of shoot with intent to murder against Mr Luo and Abdallah Al Batat (count 1 on the indictment). [2] Mr Fan is not charged with that offence and, as I understand the Prosecution case, it is not alleged that he was party to the joint criminal enterprise at that time. However, he is alleged to have joined the enterprise fairly soon afterwards. There was a second attempt on Mr Jia’s life on 1 February 2017. This followed a transaction earlier that day where there was an exchange of drugs and guns. By that time Mr Fan is alleged to have been party to the joint criminal enterprise. The Prosecution does not purport to identify precisely when Mr Fan joined the enterprise but it was clearly in the week between the two shooting events or,at the latest, on 1 February 2017.

3. [3]

   As to the events on 1 February 2017, the Prosecution alleges that Mr Fan, Mr Luo and another co-accused Jaiyu Liu (also known as “Dayu” or “Corey”), acquired the guns from Jacob Bayliss in the afternoon in exchange for Ice and later attended a makeshift Buddhist temple in Guildford (“the Temple”). The Prosecution alleges that the men acted in concert pursuant to a common purpose to kill Jun Jia or, alternatively, to intimidate those at the Temple by arming themselves with firearms. It is alleged that things did not go to plan and a Mr Qin Wu was caught in the cross-fire and killed.

4. [4]

   As a result of this series of events on 1 February 2017, Mr Bayliss is charged with two counts of supplying firearms (counts 3 and 4) while Messrs Fan, Luo and Liu are each charged jointly with supplying drugs to Mr Bayliss (count 5). Messrs Fan, Luo, Liu and Al Batat are charged with attempted murder (count 7) and murder (count 6). In the aftermath of the shooting at the Temple, communications continued between the alleged perpetrators and various steps were taken to avoid detection. On the original indictment, there was a charge against Mr Al Batat that he made false statements regarding his ownership and use of certain mobile ‘phones with intent to hinder the police investigation (count 8). A sixth accused, Nai An Li, is charged with accessory after the fact to the murder (count 9). This is the final count on the indictment and encompasses the period from 1 to 5 February 2017 during which time Nai An Li is alleged to have assisted Mr Luo by dressing and tending to a wound received when he managed to shoot himself in the leg during the incident at the Temple. During that period Mr Li also provided Mr Luo and Mr Rivers with accommodation.

5. [5]

   Mr Fan objects to the admission of representations made by his co-accused, Mr Luo, contained in statements made by Mr Rivers. Mr Rivers is a key prosecution witness. He was criminally concerned in the events and was a close associate of Mr Luo. He, Mr Luo and Mr Fan shared a flat together. The Prosecution seeks to lead the representations by Mr Luo as admissions in the case against Mr Fan by operation of s 87(1)(c) of the Evidence Act 1995 (NSW). Mr Fan was not present for any of the conversations under objection.

6. [6]

   Mr Fan submits that Mr Luo’s representations are not admissions by Mr Fan and must therefore be excluded as hearsay: see s 59 of the Evidence Act. In general terms, Mr Fan submits that the representations cannot properly be characterised as admissions made with authority because:

   1. (1)

      There was no common purpose between Mr Luo and Mr Fan at the time of making the representation (objection one);

   2. (2)

      The representations were not made in furtherance of a common purpose but were a ‘mere narrative’ of a past event (objections two to four); and/or

   3. (3)

      The representations were not made in furtherance of the common purpose alleged by the Prosecution, but made in furtherance of a separate and distinct common purpose (objections five, eight and nine).

7. [7]

   Mr Rivers’ statements were tendered on the voir dire as part of three volumes of prosecution material (Exhibit VDA, Volume 1, Tabs 6-8). Many of the alleged conversations which are objected to by Mr Fan were reproduced in the Crown Case Statement (CCS). Counsel for Mr Fan filed written submissions in support of his objections (MFI 33). Oral submissions were made on 6 August 2020.

8. [8]

   Mr Fan also objects to other parts of Mr Rivers’ statements on the basis that they are hearsay and/or opinion evidence: see ss 59 and 76 of the Evidence Act.

Chronology of the critical events relevant to the objections

1. [9]

   It is necessary to set out briefly a chronology of the critical events alleged by the Prosecution relevant to Mr Fan’s objections.

2. [10]

   The murder and attempted murder is alleged to have occurred around 11:00pm on the night of 1 February 2017.

3. [11]

   Earlier that evening, at about 7:30pm, Mr Luo and Mr Fan attended Mr Liu’s apartment at Burwood. Therein Mr Liu, Mr Luo and Mr Fan supplied a quantity of methylamphetamine to Jacob Bayliss and Mr Bayliss supplied the others with two firearms. At about 8:41pm, Mr Fan and Mr Luo left the apartment together. Mr Luo travelled to his apartment in Victoria St, Burwood and Mr Fan travelled to his own residence in Burwood. [3]

4. [12]

   Later that evening, Mr Luo received a telephone call from Mr Al-Batat who was at the Temple at that time. Mr Al-Batat informed Mr Luo that Mr Jia was also at the Temple. Mr Luo then told Mr Rivers that they were going to the Temple and they left the apartment.

5. [13]

   About 15 minutes later, Mr Luo contacted Mr Fan on his mobile ‘phone and arranged to meet. Mr Luo and Mr Rivers stopped briefly at Mr Liu’s apartment and then drove Guildford. At about 10:07pm, Mr Fan left his own residence and drove to Guildford, picking up Mr Liu on his way.

6. [14]

   Around 11:00pm, Messrs Luo and Liu entered the Temple in Guildford. Mr Liu discharged a firearm inside shooting Qin Wu. Mr Wu died as a result of the gunshot wound (or wounds). Mr Liu then allegedly fired two shots at Mr Jia. He missed. Messrs Luo and Liu left the premises.

7. [15]

   They returned a few minutes later with Mr Fan. However, Mr Jia had taken flight. The three men left the premises. As they were leaving Mr Luo’s firearm discharged while it was in his pocket and Mr Luo received a gunshot wound. Throughout these events Mr Rivers was waiting in a car nearby and was kept apprised of events. For example, telephone records suggest that Mr Luo called Mr Rivers at about 11.11pm. According to Mr Rivers, Mr Luo also returned to the car and spoke to him while the offences were being commited. The four men then travelled to a residence in Ashfield where they hid the weapons.

8. [16]

   Mr Li was enlisted to treat Mr Luo’s wound and Messrs Luo and Rivers stayed at his home over the next few days. On 8 or 9 February, Messrs Luo and Rivers checked in at the Lidcombe Motor Inn. The motel booking was organised by Mr Fan. The booking was extended on 11 February.

9. [17]

   On 12 February, Messrs Luo and Rivers visited Mr Fan at his home. Messrs Luo and Fan spoke to each other in Mandarin.

10. [18]

    On 14 February, at the request of Mr Luo, Mr Rivers picked up Mr Fan from Wolli Creek and drove him to a brothel in Burwood. Mr Fan was in possession of a gym bag alleged to have contained the firearms used in the murder and attempted murder.

11. [19]

    On 8 May 2017, Mr Luo was arrested. Mr Luo contacted Mr Rivers from custody on a number of occasions. Their conversations were recorded by Corrective Services NSW.

The evidence to which objection is taken

1. [20]

   It is necessary to set out the nine particular items of evidence that were the subject of the objections. I will attempt to group the evidence by reference to the basis of the objection.

2. [21]

   The first objection is to paragraphs 107 – 108 of Mr Rivers’ statement made on 8 February 2018. Mr Rivers says at about 8:00pm on 1 February 2017, he had a conversation with Mr Luo at Mr Luo’s apartment in Burwood (see CCS at paragraphs 114 – 116):

3. [22]

   After this conversation, Mr Rivers alleges that Mr Luo made numerous attempts to contact Mr Fan. [4]

4. [23]

   Mr Fan submits that the representations in paragraphs 107 – 108 were not made in furtherance of a common purpose with Mr Fan because no common purpose was then in existence. Alternatively, if it was reasonably open to find that there was a common purpose, it only became specific after Mr Luo and Mr Fan’s telephone communication. It is submitted that Mr Luo could not have been speaking with Mr Fan’s authority and this evidence should not be taken to be an admission by Mr Fan in the circumstances. Counsel relied on the authorities of Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39 at 94-95; Tripodi v The Queen (1961) 104 CLR 1 at 7; [1961] HCA 22 and R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127 at [23].

5. [24]

   The Prosecutor submitted that, based on the transaction that occurred at Mr Liu’s apartment involving the supply of drugs and guns, it is reasonably open to find that a common purpose was in existence at the time the representation was made. The Prosecutor submitted that the representations were made in furtherance of a common purpose, as opposed to a real time commentary of the evolving events or “mere narrative”, because it was anticipated that Mr Rivers would be there to “assist if required”. [5] It is the Prosecution case that Mr Rivers was effectively the get-away driver or at least had a “watching and minding role” as the events of 1 February 2017 unfolded. [6] It appears to be common ground that Mr Rivers was charged with certain offences arising out of his involvement although no evidence was tendered on the voir dire to establish this. [7]

6. [25]

   The second objection is to a conversation set out in paragraph 128 of Mr Rivers’ statement dated 8 February 2018. Mr Rivers says he was in a car outside or near the Temple when the men entered the Temple on the first occasion. Mr Luo came to the car and the pair had the following conversation:

7. [26]

   The third objection is to a conversation at paragraph 131 of Mr Rivers’ statement of 8 February 2018. The relevant conversation is alleged to have occurred in the car at about the same time as the second objection:

8. [27]

   Mr Fan characterised this conversation as “predominantly” a narrative statement of a past event. It was submitted that the italicised words should not be admitted against Mr Fan as they were not made in furtherance of a common purpose.

9. [28]

   The fourth objection is to a further conversation alleged to have occurred with Mr Luo in the car after the second entry (CCS at paragraph 151). The relevant conversation is at paragraph 12 of Mr Rivers’ statement made on 3 May 2018:

10. [29]

    The second, third and fourth objections were made on the basis that the representations by Mr Luo were not made in furtherance of a common purpose with Mr Fan. Rather, they amounted to “mere narrative” of past events. Counsel for Mr Fan relied on R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127 at [54]-[55]; Landini v New South Wales & Ors [2007] NSWSC 259 at [19(d)] and [25]; Tripodi v The Queen (1961) 104 CLR 1 at 7; [1961] HCA 22.

11. [30]

    The fifth objection is to paragraph 77 of Mr Rivers’ statement of 3 May 2018. Mr Rivers says that on about 8 or 9 February 2017:

12. [31]

    The eighth objection is to paragraph 97 of Mr Rivers’ statement of 3 May 2018 where he says he spoke to Mr Luo at the apartment in Victoria St, Burwood:

13. [32]

    The ninth objection is to paragraph 134 of Mr Rivers’ statement of 3 May 2018:

14. [33]

    Mr Fan submits that the representation at paragraph 77 was made in furtherance of a common purpose to “avoid detection by staying in a hotel” which is distinct from the common purpose alleged by the Prosecution, that is to kill Jun Jia or otherwise intimidate those present at Kennedy St on 1 February 2017. Similarly, he submits that the representation at paragraph 97 was made in furtherance of a distinct common purpose to “handle or dispose of firearms”. He submits that these representations cannot be considered admissions by Mr Fan pursuant to s 87(1)(c) of the Evidence Act.

15. [34]

    Mr Fan submits that the words in paragraph 134 are not in furtherance of the common purpose alleged by the Prosecution. In any event counsel for Mr Fan submits that the first sentence is hearsay and the second sentence is an opinion: ss 59 and 76 of the Evidence Act.

16. [35]

    The Prosecution argues that the representations are relevant and not extraneous to the common purpose alleged. [8]

17. [36]

    The sixth objection is to paragraph 93 of Mr Rivers’ statement of 3 May 2018 where he says that an “Asian lady” came to his motel room on 11 February 2017 and spoke to Mr Luo in Mandarin:

18. [37]

    Counsel for Mr Fan submits that this evidence is both hearsay and opinion evidence and is therefore not admissible pursuant to ss 59 and 76 of the Evidence Act.

19. [38]

    In the course of argument, the Prosecution conceded that this evidence is not admissible. [9] I accept that concession.

20. [39]

    The seventh objection is to paragraph 95 of Mr Rivers’ statement of 3 May 2018. Mr Rivers alleges that he and Mr Luo visited Mr Fan at his granny flat in Croydon and afterwards had the following conversation in the car:

21. [40]

    Counsel for Mr Fan submits that this paragraph is both hearsay and opinion evidence and is therefore not admissible pursuant to ss 59 and 76 of the Evidence Act.

The legislative and legal framework by which these objections are to be determined

1. [41]

   The starting point for consideration of these objections is the exclusion, at common law and under the Evidence Act, of hearsay evidence. Mr Rivers’ evidence of the representations made to him by Mr Luo in Mr Fan’s absence are hearsay. Section 59 of the Evidence Act relevantly provides:

2. [42]

   The Dictionary to the Evidence Act provides:

3. [43]

   Simpson AJA considered whether particular statements made in that case amounted to “representations” in R v Dolding (2018) 100 NSWLR 315; [2018] NSWCCA 127 at [45]-[51]. Her Honour held at [47] that “there can be little doubt that ‘representation’ was intended to have the broadest application.” Her Honour went on to conclude that the trial Judge erred in failing to take into account the context in which certain statements, which were otherwise “devoid of factual content”, were made. The particular statements were representations because they were “capable of interpretation by a jury as containing assertions of fact such as to constitute representations”: R v Dolding at [51].

4. [44]

   Section 81 of the Evidence Act states that “the hearsay rule and the opinion rule do not apply to evidence of an admission.” An admission is defined in the Dictionary:

5. [45]

   Section 82 restricts the operation of the exception in s 81 to first hand hearsay:

6. [46]

   The Evidence Act incorporates and adopts the common law co-conspirators rule in s 87(1)(c): R v Macraild (Court of Criminal Appeal (NSW), 18 December 1997, unrep); cf R v Dolding at [24].

7. [47]

   Section 87 provides:

8. [48]

   This provision has been considered by the Court of Criminal Appeal in the recent cases of R v Dolding and Higgins v R [2020] NSWCCA 149.

9. [49]

   In Higgins v R, Payne JA said:

10. [50]

    Payne JA (at [35]) said it is “thus necessary to understand the co-conspirator’s rule”. His Honour referred to the succinct statement of the common law principle in Ahern v The Queen (1988) 165 CLR 87 at 94-95; [1988] HCA 39:

11. [51]

    His Honour also relied on the explanation of the words “in furtherance of” or “in pursuance of” provided by the High Court (Dixon CJ, Fullagar and Windeyer JJ) in Tripodi v The Queen at 7:

12. [52]

    In R v Dolding, Simpson AJA considered the scope of the expression “common purpose” in s 87(1)(c) and determined at [32] that the section was “confined to representations made ‘in furtherance of’ the common purpose alleged” (the emphasis is her Honour’s). Her Honour rejected the proposition that “a representation made by a third party in furtherance of a common purpose unrelated to the common purpose alleged the Crown” would be caught by the section.

13. [53]

    Her Honour endorsed the observations by Rothman J in R v Scott Alan May (No 2) [2008] NSWSC 595 at [25] – [26]:

14. [54]

    The propositions of law explained by Payne JA and Simpson AJA in those two cases are binding notwithstanding the fact that the section refers to “a common purpose (whether lawful or not)”.

A common purpose to avoid detection

1. [55]

   It is clear that there is evidence that Mr Fan and Mr Luo shared (or allegedly shared) a common purpose to sell drugs, to acquire firearms and to kill Jun Jia (or to intimidate those at the Temple by arming themselves with weapons). However, in pressing admission of parts of the evidence that occurred after the shooting, the Prosecutor submitted that Mr Fan and Mr Luo also shared a common purpose to “avoid detection” and that this was a continuation of the joint criminal enterprise to kill Jun Jia (or otherwise intimidate those present at the Temple). The Prosecutor submitted, in relation to the post-offence conversations:

2. [56]

   The argument was that this required the “free flow” of information with those who may further the common purpose to avoid detection for the original crime.

3. [57]

   The Prosecutor highlighted the fact that the indictment included the charge of accessory after the fact against another accused, Nai An Li:

4. [58]

   I accept there may be cases where such an analysis allows for admission of representations made by one co-accused after the events giving rise to the offences with which the “co-conspirators” are charged, in the case of another. However, I suspect such cases will be quite rare. A logical extension of the submission would apply in nearly every case where there is a common purpose to commit serious offences. That is because in almost every case involving similar circumstances, the various players will share a common purpose not to be caught.

5. [59]

   I am unable to accept that this is the correct operation of this exception to the hearsay rule. It may turn on the proximity to the events culminating in fulfilment of the substantive common purpose. For example, statements made in the immediate attempts to flee the scene may be caught by the section while statements made many days or weeks afterwards will not. It will also depend on whether the words or actions involved were encompassed by the common purpose alleged by the prosecution.

Application to the evidence subject to objection in the present case

1. [60]

   Applying these principles to the facts and circumstances of the present case, I have reached the following conclusions (adopting the numbers attributed to the objections above):

   1. (1)

      The conversation at about 8:00pm on 1 February 2017 (Mr Rivers’ statement 8 February 2018 at [107]-[108]) is admissible against Mr Fan. The evidence relating to the acquisition of guns earlier that day is capable of establishing a relevant common purpose between Mr Fan and Mr Luo (and others). The statements to Mr Rivers could be held to be in furtherance of that common purpose because, as things transpired, Mr Rivers travelled with Mr Luo to the murder scene at Guildford. He then waited outside in the premises and it will be open to the jury to consider that he either a cockatoo or the get-away driver.

   2. (2)

      The conversation outside the Temple (Mr Rivers’ statement 8 February 2018 at [128]) is admissible against Mr Fan. That conversation occurred during the currency of the attempt to kill Mr Jia. Mr Fan entered the premises while Mr Rivers waited outside in the car. It was more than a narrative of past events. It was a statement calculated to keep Mr Rivers apprised of what was happening inside the premises.

   3. (3)

      The further conversation outside the Temple (Mr Rivers’ statement 8 February 2018 at [131] is admissible against Mr Fan for the same reasons.

   4. (4)

      The conversation in the car relating to the gun going off in Mr Luo’s pocket (Mr Rivers’ statement 3 May 2018 at [12] is admissible against Mr Fan. It occurred in the immediate aftermath of the shooting while the group sharing the common purpose were fleeing the scene. The common purpose did not suddenly cease to exist between the three men running from the Temple. It continued at least for a period after that. The representation made is more than a narrative of past events and was made to Mr Rivers in furtherance of the common purpose shared with Mr Fan.

   5. (5)

      The contents of Mr Rivers’ statement of 3 May 2018 at [77] are not admissible against Mr Fan. This conversation, involving the move to a hotel, was not in furtherance of the common purpose alleged by the Prosecution shared by Mr Luo and Mr Fan (and others). It is extraneous to it. This seems to be the logical impact of the decision in R v Scott Alan May (No 2) approved by Simpson AJA in Dolding.

   6. (6)

      The events described in Mr Rivers’ statement of 3 May 2018 at [93] are not admissible against Mr Fan. In this respect I accept the Prosecutor’s concession that it is not admissible.

   7. (7)

      The conversation on 12 February 2017 (Mr Rivers’ statement 3 May 2018 at [95]) is not admissible against Mr Fan. Insofar as it purports to describe Mr Fan’s state of mind (“the guy’s really paranoid”) it is not first-hand hearsay: cf Petch v R [2020] NSWCCA 133 at [92]-[93]. In any event, it is inadmissible hearsay and not a statement made in furtherance of any relevant common purpose.

   8. (8)

      The conversation on 14 February 2017 about Mr Fan picking up the guns (Mr Rivers’ statement 3 May 2018 at [97]) is the most difficult of the objections to resolve. It may be that strict application of some of the authorities – in particular the language of R v Scott Alan May (No 2) – would lead to the opposite result, but I am persuaded that this evidence is admissible against Mr Fan. The common purpose alleged by the Crown against both Mr Fan and Mr Luo involved obtaining guns for the purpose of carrying out the shooting of Jun Jia. That common purpose must also have encompassed disposing of the guns as part of the enterprise. It is reasonably open to find that the conversation between Mr Luo and Mr Rivers on 14 February was in furtherance of that common purpose. Accordingly, the evidence is admissible in Mr Fan’s case.

   9. (9)

      The conversation about “Michael” going to China (Mr Rivers’ statement 3 May 2018 at [134]) is not admissible against Mr Fan. The statement is not in an admissible form. It contained opinions as to what the witness “believed” he was told and what the purpose of the trip to China might have been. In any event, it is extraneous to the common purpose alleged by the Prosecution.

Evidentiary rulings

1. [61]

   For those reasons, I make the following evidentiary rulings:

   1. (1)

      The conversation set out in Mr Rivers’ statement of 8 February 2018 at [107]-[108] is admissible against Mr Fan.

   2. (2)

      The conversation set out in Mr Rivers’ statement of 8 February 2018 at [128] is admissible against Mr Fan.

   3. (3)

      The conversation set out in Mr Rivers’ statement of 8 February 2018 at [131] is admissible against Mr Fan.

   4. (4)

      The conversation set out in Mr Rivers’ statement of 3 May 2018 at [12] is admissible against Mr Fan.

   5. (5)

      The contents of Mr Rivers’ statement of 3 May 2018 at [77] are not admissible against Mr Fan.

   6. (6)

      The events described in Mr Rivers’ statement of 3 May 2018 at [93] are not admissible against Mr Fan.

   7. (7)

      The conversation set out in Mr Rivers’ statement of 3 May 2018 at [95] is not admissible against Mr Fan.

   8. (8)

      The conversation recorded in Mr Rivers’ statement of 3 May 2018 at [97] is admissible against Mr Fan.

   9. (9)

      The conversation described in Rivers’ statement of 3 May 2018 at [134] is not admissible against Mr Fan.