R v Al Batat & Ors (No 12)

1. [1]

   On 14 August 2020 I published a judgment concerning the admissibility of certain evidence the Prosecution sought to tender at the trial of Jacob Bayliss who is charged with two counts of supplying firearms: R v Al Batat & Ors (No 3) [2020] NSWSC 1061. That judgment rejected the tender of parts of the evidence on the basis that its only possible relevance was as tendency evidence. No tendency notice had been served. Against the possibility I would reach that conclusion, the Prosecutor sought an order dispensing with the notice requirements. Because no prejudice arising from the failure to provide reasonable notice was identified by counsel for Mr Bayliss, I made the following order:

2. [2]

   The Prosecutor complied with those conditions. The tendency notice is MFI 51 and the Prosecutor’s written submissions are MFI 52. Mr Bayliss objected to the tendency evidence and counsel filed written submissions which became MFI 56. Oral submissions were made by the parties on 20 and 24 August 2020.

3. [3]

   The Prosecutor identified two relevant tendencies and submitted that the evidence has significant probative value and that any possible prejudice can be cured by direction. Mr Bayliss objects to the evidence on the grounds that the evidence is not tendency evidence under s 97 of the Evidence Act 1995 (NSW) and that, if it is tendency evidence, it lacks significant probative value (s 97) and any such probative value does not substantially outweigh any prejudicial effect the evidence will have on Mr Bayliss (s 101(2)).

4. [4]

   The tendency notice identifies two relevant tendencies:

   1. (1)

      A tendency to possess firearms; and

   2. (2)

      A tendency to exchange firearms for other items.

The evidence

1. [5]

   The substance of the tendency evidence identified in the notice comes from four sources. The first source is the witness Martina Sellers (a pseudonym). [1] Most of her evidence is admissible on the substantive issues between Mr Bayliss and the Prosecution. One piece of her evidence is pressed as tendency evidence and on no other basis. [2] The second source of the tendency evidence is a text message which forms part of a conversation between Mr Bayliss and a man called Bradley Pattenden. The third source is the evidence of Constable Kate McGrath in relation to Mr Bayliss’s arrest on 14 February 2017. The final source of the tendency evidence is an electronically recorded interview (“ERISP”) between police and Mr Bayliss on 24 October 2017. The relevant evidence is contained in three volumes of material tendered by the Prosecution in the voir dire and marked Exhibit VDA.

2. [6]

   Ms Sellers is a critical witness in the case. Based on her statement of 29 June 2017, it is expected she will give the direct evidence that on 1 February 2017, Mr Bayliss (whom she refers to as “Shiv”) attended Mr Liu’s apartment in Burwood and supplied three of the co-accused (Messrs Luo, Liu and Fan) with two firearms. The prosecution case is that these were two of the three guns used in the shooting that occurred at Guildford later that day.

3. [7]

   The tendency notice identifies the following evidence as going to the substantive issues in the trial:

4. [8]

   The evidence relied on as tendency evidence is set out in paragraph [42] of Ms Sellers’ statement:

5. [9]

   The Prosecution also seeks to rely on a text message sent by Mr Bayliss to Bradley Pattenden on 8 February 2017 as tendency evidence:

6. [10]

   Ms McGrath can give evidence of the arrest of Mr Bayliss on 14 February 2017 and of police finding three firearms in his possession (or in a car over which he had control). The relevant parts of her evidence are identified in the tendency notice:

7. [11]

   In the ERISP Mr Bayliss admitted that he owned the three firearms seized on 14 February 2017. He said at question 694:

8. [12]

   That question and answer is not included in the tendency notice but was before the Court on the voir dire.

9. [13]

   The Prosecution relies on the following evidence from Mr Bayliss’s ERISP on 24 October 2017:

The probative value of the evidence

1. [14]

   Before tendency evidence can be admitted, the Prosecution must establish that the evidence has significant probative value. This requires identification of the facts in issue between the Prosecution and Mr Bayliss. The issue in the case is an uncomplicated one; it is whether Mr Bayliss supplied the guns on 1 February 2017. To establish that fact, the Prosecution relies on the evidence of Ms Sellers. Ms Sellers is an informant and it may be alleged that she was criminally concerned in the events giving rise to the charges. On her own account, she was present at the transaction where it is alleged that drugs and guns were supplied. Her evidence and credibility is likely to be the subject of a substantial attack. It is expected that there will be some circumstantial evidence capable of supporting her account. This includes text messages and telephone records that might give rise to an inference that Mr Bayliss was in contact with the co-accused and attended the apartment at the relevant time. Mr Bayliss admitted he was at the Burwood apartment in his defence case statement under s 143 Criminal Procedure Act 1986 (NSW). There is also CCTV footage of Mr Bayliss and Ms Sellers at the Burwood apartment at the time of the meeting. However, as I understand the Prosecution case, the only evidence that the accused supplied guns that day will come from Ms Sellers.

2. [15]

   Having identified the facts in issue, it is necessary to consider both the extent to which the evidence supports the existence of the tendency alleged and how such a tendency affects the probability that the offence was committed. In Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [41], the majority said:

3. [16]

   One of the arguments made on Mr Bayliss’s behalf in the present case was that “the above (singular) events [3] are not of themselves so unusual as to constitute a tendency on the part of Jacob Bayliss”. Reliance was placed on a judgment of Davies J in which he cited paragraph [64] of the High Court’s judgment in Hughes v The Queen: R v Davidson (No 1) [2019] NSWSC 980. The relevant passage in Hughes v The Queen endorsed the proposition that:

4. [17]

   The decision of the High Court in Hughes v The Queen establishes that the extent to which unusual features inform an assessment of the probative value of evidence is dependent on the facts in issue in the case. For example, the degree of particularity of the tendency evidence is more significant where identification of the perpetrator is in issue rather than where, as here, the issue is whether the accused committed the offence(s) charged against them: Hughes v The Queen at [39], [41] and [95].

5. [18]

   Another argument was that Mr Bayliss’s statements that he loved firearms and that he collected guns was not accompanied by any “relevant dates”. It was suggested that the love of guns was only established as at the date of the interview. I am unable to accept these submissions. A proper analysis of the evidence makes it clear that Mr Bayliss’s “love of guns” was a passion of long standing. It began with his father’s interest in guns and was manifested, for example, by his description of one of the guns seized by police on 14 February 2017 as “beautiful”. [4] In making this observation, I am conscious of the fact that this answer was not identified in the tendency evidence. Even so, the responses to police in the interview do not suggest that Mr Bayliss’s passion for firearms was a transient one or that it emerged after the events of February 2017. The evidence upon which reliance is placed by the Prosecution is plainly capable of establishing that Mr Bayliss’s interest in guns existed at the time of the alleged offences.

6. [19]

   A further argument was that the evidence did not establish a tendency to sell or supply firearms, as opposed to a tendency to own and accumulate them. This is true and I accept that evidence of such a tendency would have greater probative force than evidence of a tendency to possess firearms. However, that fact does not mean that the evidence of a tendency to possess firearms does not have relevance to the charge and “significant probative value”. The question will “depend on the extent to which the tendency makes more likely the elements of the offence charged”: Hughes v The Queen at [64].

7. [20]

   Counsel also submitted that “the above (singular) events are so varied, both in their substance and in their timing, such that they do not demonstrate a ‘tendency’ by reason of any repetition on the part of Jacob Bayliss”. [5] However, the evidence must be considered as a whole. The enquiry into the probative value of the evidence ought not to be undertaken in a piecemeal fashion. The s 97 assessment relevant to the admissibility of tendency evidence, requires the Court to have “regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence”: Evidence Act, s 97(1)(b).

8. [21]

   The tendency evidence of Martina Sellers is not admissible

9. [22]

   A critical fact in issue is the credibility of Ms Sellers’ account of the meeting at which the guns were allegedly supplied. It is that evidence that the Prosecution seeks to support by the tendency evidence. Ms Sellers’ own account of events said to support the tendency asserted does not have significant probative value.

10. [23]

    In IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, the High Court considered a sexual assault case wherein the Prosecution adduced evidence from the complainant herself as to other acts of sexual interference. The evidence of the other acts was led to establish a tendency that, in turn, supported the credibility of the complainant in relation to the charged offences. The High Court did not accept that such evidence had significant probative value. French CJ, Kiefel, Bell and Keane JJ held (at [63]):

11. [24]

    While the factual circumstances are obviously different, similar considerations arise here. Ms Sellers’ evidence said to support the tendency case – that is the evidence that Mr Bayliss “admitted to having recently supplied a small pistol to the co-accused Liu” [6] – does not have significant probative value in providing support for Ms Sellers’ account that Mr Bayliss supplied two guns on 1 February 2020. The evidence comes from the same source and the same reasoning adopted by the High Court in IMM v The Queen is apposite to the circumstances of the present case.

12. [25]

    For those reasons the evidence of Martina Sellers in paragraph [42] is inadmissible in Mr Bayliss’s case.

13. [26]

    Whether that part of her evidence - excluding the supply of the guns by Mr Bayliss - is tendered against Mr Liu is not clear. Its relevance, if any, to Mr Liu’s case has not been agitated.

The evidence of the text message is not admissible

1. [27]

   Relying on the decision in R v Davidson (No.1) at [33]-[36] Mr Norrie submitted, correctly, that the occurrence of a single event will rarely establish a relevant tendency.

2. [28]

   This submission has particular relevance to the evidence of the text message from Mr Bayliss to Mr Pattenden. That is the only evidence that supports the tendency to “exchange firearms for other items”. I am unable to accept that this single text message (even if it is taken into account with the other evidence that will be adduced by the Prosecutor) is capable of establishing the tendency alleged. Even though the language in the text message is a little obscure, it clearly gives rise to an inference of drug dealing. For that reason, the probative value of this particular item of evidence does not “substantially outweigh” the prejudice it will occasion to Mr Bayliss: see s 101(2) of the Evidence Act.

3. [29]

   For those reasons, I reject the tender of the text message and will not allow the Prosecution to advance a case that Mr Bayliss had a tendency to exchange firearms for other items.

4. [30]

   This ruling will result in the exclusion of the text message to Bradley Pattenden and question 929 of the ERISP.

The remaining evidence is admissible as tendency evidence, subject to appropriate editing

1. [31]

   However, I am generally satisfied that the remaining evidence – in particular the possession of three firearms on 14 February 2017 and Mr Bayliss’ statements in the ERISP establishing his love and accumulation of firearms – is admissible as tendency evidence.

2. [32]

   Mr Norrie submitted that the evidence of Mr Bayliss’s statements in the ERISP that he “loves guns” was not capable of supporting a tendency to possess firearms. Counsel provided the following analogy: “[t]o use an example, one may say they love Ferraris but it doesn't mean they necessarily have possession of it”. [7] While I understand the force of this submission, the evidence cannot be considered in isolation. Once account is taken of Mr Bayliss’s admissions to “accumulating” firearms and the evidence of his possession of three guns on 14 February 2017, I am satisfied the evidence is capable of supporting a tendency to possess firearms.

3. [33]

   Putting aside the evidence I have rejected, the remaining evidence identified in the tendency notice has significant probative value. The fact in issue is whether Mr Bayliss supplied guns on 1 February 2017. The related fact in issue concerns Ms Sellers’ credibility in asserting that he did so. It will be open to the jury to reason that a person with a tendency to be in possession of guns is more likely to be in a position to supply guns. The evidence is capable of providing circumstantial support for Ms Sellers account that Mr Bayliss was in possession of guns on 1 February 2017 and that he brought those guns to the apartment in Burwood. That fact, if it is established has a significant impact on the probability that he supplied guns to Messrs Liu, Luo and Fan. The evidence is capable of providing circumstantial support for the account given by Ms Sellers in a case where her credibility will be one of the principal issues in the trial. To paraphrase part of the Prosecutor’s argument, most people in Australia do not possess multiple firearms and the fact that a person has a tendency to do so has significant probative value to a disputed allegation that they supplied firearms.

4. [34]

   In contesting the admissibility of this evidence, Mr Bayliss relied on the fact that the evidence related to events that occurred about two weeks after the alleged supply of guns on 1 February 2017. If the possession of guns on 14 February 2017 was the only evidence of Mr Bayliss’s possession of firearms, this submission may have more resonance. Similarly, if the time gap between the alleged offences and the possession of guns relied on as tendency evidence was greater, the probative value would be diminished.

5. [35]

   For example, in McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 there was a 10 year gap between the occurrences of the acts giving rise to the tendency case and the offence charged. The High Court held the evidence was not admissible. The plurality said at [32] that the evidence:

6. [36]

   On the other hand, in Vagg v R [2020] NSWCCA 134 the Court of Criminal Appeal upheld the admission of tendency evidence based on events that had taken place four years after the offence charged.

7. [37]

   In the present case, the passing of two weeks between the allegations giving rise to the charged offences and the possession of the three firearms, does not impact greatly on the probative value of the tendency evidence. This is particularly so when the evidence is considered with the other evidence the Prosecution will elicit, including the evidence of Mr Bayliss’s love of guns and his habit of accumulating them. Similarly, the nine months between the alleged offences and the ERISP (another matter relied on by counsel) is of little significance in circumstances where the evidence taken as a whole supports an inference that Mr Bayliss’s love of firearms was an enduring one.

8. [38]

   I have considered the provision in s 101(2) of the Evidence Act and the need to evaluate the risk of prejudice in the admission of tendency evidence. In Hughes v The Queen the majority said at [17]:

9. [39]

   I am conscious of the potential for prejudice. However, there is little chance that the jury will misuse this evidence or give it more weight than it deserves if provided with proper directions. The relevant directions were considered recently by the Court of Criminal Appeal: BRC v R [2020] NSWCCA 176.

10. [40]

    I am satisfied that the probative value of the evidence substantially outweighs any prejudicial effect the admission of the evidence may have on Mr Bayliss.

11. [41]

    That conclusion is fortified by the fact that the Prosecutor will edit the interview and tailor the evidence of the seizure of guns on 14 February 2017 in such a way that evidence of other criminal conduct, previous convictions and evidence of general bad character will not be adduced. [8] For example, the answer to Q 698 may need to be edited to delete the reference to Mr Bayliss “getting into trouble”.

Evidentiary rulings

1. [42]

   For those reasons I make the following rulings:

   1. (1)

      The tendency evidence in paragraph [42] of Ms Sellers’ Statement of 29 June 2017 is not admissible.

   2. (2)

      The evidence of the text message sent to Bradley Pattenden on 8 February 2017 is not admissible.

   3. (3)

      The Prosecution will not be permitted to conduct the case on the basis that Mr Bayliss had a tendency to exchange firearms for other items.

   4. (4)

      The evidence in Question 929 of the electronically recorded interview of Mr Bayliss on 24 October 2017 is not admissible.

   5. (5)

      The Prosecution will be permitted to conduct the case on the basis that Mr Bayliss had a tendency to possess firearms at the relevant time.

   6. (6)

      The evidence of Constable Kate McGrath concerning Mr Bayliss’s possession of three firearms on 14 February 2017 is admissible, subject to appropriate editing.

   7. (7)

      The evidence in the electronically recorded interview of Mr Bayliss on 24 October 2017 concerning Mr Bayliss’s love of guns and his admissions that he possessed and accumulated firearms is admissible.