R v Al Batat & Ors (No 11)

The accused, Ian Fan (also known as “Michael”), is about to stand trial with five other men in relation to a number of criminal offences that were allegedly committed in January and February of 2017. Mr Fan is charged with one count of murder of Qin Wu, one count of attempted murder of Jun Jia (also known as “Xiao Jun”) and one count of supply methylamphetamine (or “Ice”) to another co-accused, Jacob Bayliss. Each of these offences are alleged to have occurred on 1 February 2017.

There is evidence available to the Prosecution that Mr Fan organised a trip to China in around the middle of June 2017. The evidence comes in various forms including:

The statement of Ms Lei says that “Michael wanted to go to China to get his daughter and bring her back to Sydney to send her to school, but he was worried about booking a plane ticket in case he got arrested”. In speaking about the trip with his girlfriend (Ms Hsu) Mr Fan also speaks about his daughter’s education and the pros and cons, and timing, of the proposed trip. A return ‘plane ticket was booked.

Accordingly, and appropriately, the prosecution does not allege that the trip was organised in an attempt to escape the jurisdiction or to avoid detection. There will be no suggestion that the trip could be used by the jury to demonstrate a consciousness of guilt by attempting to take flight. However, the prosecution suggests that the evidence demonstates a consciousness of guilt in another way. There is a evidence that Mr Fan did not take the trip because he was worried that travelling overseas would attract attention and that he may be arrested. So much can be seen from the passage of the statement of Ms Lei set out above. Ms Lei went on to say:

Mr Fan’s objects to the admissibility of this evidence based on the argument that the probative value of the evidence is slight and is outweighed by the danger of unfair prejudice: Evidence Act 1995 (NSW), s 137. I accept this submission. There is a real risk of misuse of this evidence. For one thing, contrary to the express position of the Prosecutor, the jury may reason that Mr Fan was attempting to flee. For another, a person may be concerned about being stopped at the airport because they know or fear they are under suspicion or investigation, rather than because they know they are guilty. In spite of the clearest of directions, there is a real risk that the jury could misuse the evidence.

I am told there is a body of other evidence of post offence conduct by which the jury may infer a consciousness of guilty on Mr Fan’s part. This includes disposing of telephones and weapons, avoiding driving his own car, not leaving his house and so on. In the circumstances, a concern that making the trip to China may draw attention to himself does not add very much. While that does not impact on the probative value of the evidence, it does heighten the risk that the jury will improperly reason that he was attempting to take flight.

I consider that the probative value of the evidence is outweighed by the danger of unfair prejudice. In those circumstances, the evidence must be excluded under s 137 of the Evidence Act.

Accordingly, and for those reasons, I rule that the evidence that Mr Fan organised a trip to China, and his concerns about taking that trip, is inadmissible.