R v Al Batat & Ors (No 17)

The Prosecutor makes an application for leave to ask questions of the current witness, Ms Wai Li, as if he were cross-examining her. A similar application was made and granted yesterday, but on a different topic. The present application is based on evidence concerning a meeting, possibly a chance meeting, between the previous witness Mr Jun Jia and a man, James, who is said to have been behind (1) some fairly substantial drug dealing and (2) two attempts on Jun Jia's life. It is alleged, on the prosecution case, that this James put out a contract on Mr Jia's life when Mr Jia failed to pay for some drugs.

The current witness, on the prosecution's case, received some of the relevant drugs and dealt with them. Her evidence-in-chief included some evidence relating to a meeting at a hotel during which she was with another man, David Boikov, and saw the witness Jun Jia. That evidence was recorded at pages 394 to 395 of the transcript:

In essence, that part of the examination-in-chief of the witness was based on paragraphs 67-69 of her statement:

Yesterday and today, Mr Webb, who appears for Mr Luo, cross-examined Ms Li. In the course of his interrogation, Mr Webb put certain things to her about that meeting, including propositions to the effect that Mr Jia and James exchanged money. Mr Webb accepts that he proposes to use that evidence in an attempt to undermine or rebut the prosecution case, that there was a drug debt. This is highly relevant to the whole theory of the prosecution case, namely that the shootings with which the jury is concerned arose from that drug debt.

The prosecution says that s 38 of the Evidence Act 1995 (NSW) is engaged because the evidence that Ms Li gave in cross-examination is unfavourable to it, and is also inconsistent with the material in paragraph 67 of her statement. Some relevant parts of the cross-examination are as follows:

The Prosecutor also submitted that Ms Li is agreeing to these propositions in a deliberate attempt to assist Mr Luo. A similar submission, to the effect that she was not making a genuine attempt to give evidence, was made in the application yesterday. In light of the evidence to that point, I did not accept that submission and limited the cross-examination essentially to the particular unfavourable evidence and to the inconsistency in the statement.

Having heard her evidence this morning, I have come to a different view, and take the view that she was or seemed to be, rather than making a genuine attempt to give evidence, agreeing with a number of propositions that were favourable to Mr Luo.

In my assessment, the prosecution, even at this late stage in Ms Li’s evidence, is entitled to explore that possibility as if he were cross-examining the witness. Because this will essentially happen in re-examination (although technically I will be granting leave to adduce further evidence by way of cross-examination) fairness will require that, if sought, Mr Webb will have the opportunity to cross-examine further.

Consequently, the ruling I make pursuant to s 38 of the Evidence Act is that the Prosecutor may question the witness Wai Li as though he were cross-examining her about evidence that is unfavourable to the prosecution. That is, evidence of a transaction in which Mr Jia provided a bag full of cash to the man James and evidence of the general circumstances of that meeting; the inconsistencies between her evidence in the trial and paragraph 67 of her statement, dated 1 May 2019; and whether she is deliberately providing evidence to the Court in order to assist Mr Luo in the trial.

At the conclusion of giving my ruling on the s 38 application made by the prosecution, Mr Webb sought to be heard further on the application and specifically on the question of whether the Prosecutor should be entitled to put to the witness that she is deliberately giving evidence favourable to Mr Luo. That submission was made in the context that I had already made a ruling on the issue, having heard from both counsel.

I have reconsidered the ruling in the light of counsel's further submissions and also taking into account his concession in his first submission that the evidence given in cross-examination constituted a substantial departure from the statement. That concession was made in the following terms:

As I said in the course of my ex tempore and brief judgment ruling on the s 38 application, the assessment that I made of the witness yesterday is different to the assessment I have made of the witness today. It is open to the jury to form a particular view as to what is motivating Ms Li in giving her evidence. The prosecution will want to put that to the jury and is entitled under the umbrella of the ruling I'm making under s 38 to put that motive to her.

The ruling that I made earlier (at [9] above) is confirmed for those reasons. The application for leave under s 38 of the Evidence Act 1995 (NSW) to cross-examine witness is granted.