R v Al Batat & Ors (No 28)

Pursuant to s 192A of the Evidence Act 1995 (NSW), the parties seek an advanced ruling in relation to the evidence of a witness known as Zi Yin (Ada) Chan. Ms Chan gave evidence during the course of a pre-trial hearing, both on the voir dire in relation to an application by Mr Luo to sever Count 2 from the original indictment and also on a Basha inquiry. [1]

Count 2 (on the original indictment) was an allegation that on 30 January 2017, Ying Cheng Luo fired shots into Ms Chan's house at Willoughby. Mr Webb, appearing for Mr Luo, in the first of a number of forensic (if interlocutory) triumphs, persuaded me that Count 2 should be severed from the indictment: see R v Al Batat & Ors (No 2) [2020] NSWSC 992.

The shooting of Ms Chan's house, while peripherally related to the subject matter of this trial, was not part of the narrative of events that involved the accused men allegedly shooting at Jun Jia with intent to murder him in the streets of Earlwood on 23 January 2017 and culminating in the murder of Qin Wu and the second attempted murder of Mr Jia on 1 February 2017 at a makeshift Buddhist temple in Guildford.

My reasons for severing Count 2 included that:

For example, at [46] I said:

The foundation of the prosecution case in relation to the attempts on Mr Jia's life and the murder of Mr Wu was that Mr Jia owed money for drugs. In essence, the prosecution case is that he tricked two gangsters, known as James and Jackie, into parting with drugs “on tick”, then sold some of the drugs (about 1kg) to a witness, Ms Wai Li, and her partner, Mr David Boikov in exchange for $90,000. The evidence suggests Mr Jia received part payment of about $70,000 and Ms Li “rushed to sell” the drugs [2] to pay for the balance. On the prosecution case, this deal went down at a motel in Haberfield on a date on (or between) the 9 or 11 of January 2017.

The prosecution case is that Mr Jia never passed the money on to James or Jackie. The drug debt caused James or Jackie to put out a contract on Mr Jia's life – a contract which was accepted by Mr Luo, who subsequently recruited the other people currently sitting in or around the dock to assist him.

The witness, Ms Chan, was also present at the time of this Haberfield drug transaction. Her evidence on the voir dire was quite different to the evidence of Jun Jia and Wai Li in the trial. In short, Ms Chan said she purchased a relatively small amount of drugs from Mr Jia and paid for it herself. The following evidence was given on the voir dire:

On 21 July 2020, Ms Chan’s evidence on the voir dire continued:

Ms Chan's evidence runs counter to the prosecution case on motive. The application made this morning, during a hiatus in the trial (due to one of the jurors awaiting their results of a COVID-19 test), was for an advance ruling involving essentially three things, all of which were related.

First, the prosecution sought an order under ss 26 or 28 of the Evidence Act, changing the order in which the parties would examine the witness, Ms Chan. Once Count 2 was severed from the indictment, the Prosecutor had formed the intention not to call Ms Chan, partially because her evidence was predominantly relevant to that count, but also because the Prosecutor formed the view that Ms Chan was not a witness of truth.

However, Mr Webb on behalf of Mr Luo requested the Prosecutor call Ms Chan so that he could cross-examine her on her version of the events concerning the drug deal at Haberfield. The Prosecutor, in accordance with a number of cases formed the view that he would call Ms Chan, take her name and not ask her any questions. [5] That is because of the view that he formed as to the credibility of the witness; a view open to him based on Ms Chan's performance in the pre-trial hearing.

There was no serious opposition to that course and I propose to exercise the Court's power under s 26 of the Evidence Act to change the order of examination to permit the Prosecutor to cross-examine after the accused. It may be, depending on how events pan out, that I would also then allow the accused some limited opportunity to re-examine, in effect, after the Prosecutor's cross-examination. That is something that remains to be seen.

The second aspect of the advance ruling concerns a matter which arose in argument and was raised by Senior Counsel for Mr Al Batat. That matter is this: to do what he proposes to do by way of cross-examining Ms Chan, the Prosecutor needs leave under s 38 of the Evidence Act. There is no doubt, on my reading of that section, that leave is required irrespective of the order in which the evidence is taken.

I accept the Prosecutor's submission that Ms Chan's evidence, as least as it emerged on the voir dire, is fundamentally unfavourable to the prosecution case and I will grant leave under ss 38(1)(a) and 38(3) of the Evidence Act, or I give the indication by way of advance ruling that I will give leave under s 38, for the Prosecutor to question the witness as though he were cross-examining her. This includes matters going that may go only to her credibility. [6]

Third, and most controversially, the Prosecutor seeks to put to the witness, and cross-examine her, on a number of matters. First, that she was subject to a home invasion where she was threatened with a knife and her phone was destroyed by throwing it into a sink. This part of the anticipated cross-examination is based on evidence Ms Chan gave in the voir dire as follows:

Second, the Prosecutor wants to cross-examine Ms Chan about the drive-by shooting of her house on 30 January 2017. [8]

Third, the Prosecutor wishes to put to the witness that she is afraid as a result of those incidents and that she is not telling the truth because of her fears. Finally, the Prosecutor seeks to cross-examine the witness about her knowledge of the circumstances of the killing of Mr Wu on 1 February 2017.

The Prosecutor indicated that he will not lead evidence of words allegedly spoken by the witness Ms Chan to Wai Li, in which she identified the person who shot at her house as Mr Luo. That evidence was denied by the witness in the course of the pre-trial hearing in the following exchanges:

The Prosecutor went on to say he will not suggest in any way that the accused were responsible for either the threat involving the knife or the drive-by shooting of the house in Willoughby. However, being realistic, for there to be any force in the submission that this is motivating the witness to lie, the jury will inevitably wonder, if not infer or conclude, that the accused, or some of them, or people involved with them, were involved in those incidents (or that Ms Chan believes they were).

Mr Luo and Mr Al Batat in particular objected to the evidence. Other counsel either took no position or supported the position advanced by Mr Webb and, in particular, Ms Rigg SC.

It was submitted that if I was minded to allow the Prosecutor to cross-examine on the shooting and knife threat incidents, that this would cause irretrievable prejudice to other accused. As a solution, Senior Counsel for Mr Al Batat (supported by the Prosecutor to some extent) proposed that I should prevent Mr Luo from adducing the evidence he proposes to adduce, to ameliorate the possibility for prejudice and unfairness to Mr Luo’s co-accused.

Alternatively, counsel proposed that if I was minded to deny the Prosecutor the right to cross-examination as sought, and deny him the opportunity to cross-examine on those subjects mentioned above, I should instead exercise a power under the same section to allow Mr Webb to adduce the evidence he elicited on the voir dire.

The evidence Mr Webb seeks to elicit is highly probative in Mr Luo's case and, indeed, in the case of a number of the other accused men, because it undermines the very essence of the prosecution case on motive. Disallowing that cross-examination, in my view, runs a real risk of causing the trial to miscarry.

The evidence the Prosecutor seeks to elicit in cross-examination, that is, the evidence of the threats by way of knife, the destruction of the phone by water and the drive-by shooting of the house in Willoughby, has the potential to be highly prejudicial evidence. It introduces a further shooting into the trial and would cause the jury to speculate or deduce that some or more of the accused were involved in the shooting.

The Prosecutor putting to the jury, as he said he was prepared to do, that the accused were not involved in the shooting, is what might colloquially be described as a “dog whistle”. The Prosecutor’s proposed course seems innocuous enough but it may trigger the jury into thinking exactly the opposite.

Further, there is in fact evidence in the Prosecutor's brief, which he very fairly proposes not to lead, that Ms Chan said to Ms Wai Li that Mr Luo was responsible for the shooting. The absence of that evidence creates prejudice to the other accused because they would, in essence, be ruled out as being responsible for it.

In addition, the prosecution will not be calling either of the people known as James or Jackie in the trial. Both of those people are known to the police. I was told earlier in the trial that the person known as James was actually at the Downing Centre and bumped into the witness Jun Jia outside the court. In the absence of those witnesses giving evidence in the trial, the evidence is not only potentially prejudicial, but is also very unfair. The accused will not be in a position to put to those witnesses that they caused the alleged threats to be made to Ms Chan and/or were behind the shooting up of her house.

I propose therefore to disallow any questions going to the knife threats and the shooting up of the house. In my view the prejudicial effect well outweighs any probative value going to the witness's credit. Based on Ms Chan’s performance on the voir dire, there will be many other matters upon which the Prosecutor will be able to impeach her credibility, not least of those things is her involvement in drugs and drug dealings and drug supply and inconsistencies patent in her account.

Further, the final topic upon which the Prosecutor sought to cross-examine was not subject to much, if any, argument, and that is her knowledge of the murder of Mr Wu. I do propose to allow the Prosecutor to elicit admissible evidence in relation to that issue, and such evidence will ground the kind of submission or argument the prosecution seeks to make, namely that Ms Chan is not giving an honest account of the drug deal at Haberfield as a result of her fear.

Accordingly, the orders that I make these: