R v Al Batat & Ors (No 23)

Yesterday, counsel for Mr Fan (that is, Mr Quilter) raised an objection to evidence that the parties anticipate will be given today (Thursday, 8 October 2020) by a witness, Yi-Chieh (“Maggie”) Hsu. The evidence is contained in the witness’s statement of 12 September 2017 (Exhibit VD18) at paragraph 29:

Earlier in the statement Ms Hsu says she met Mr Fan on 11 October 2016.

The evidence is relevant because the prosecution case is that the attempt to murder Jun Jia (or “Little Jun”) was motivated by the fact that he owed some gangsters money for drugs with which they had supplied him. Those gangsters allegedly took out a contract on his life as a result and Mr Fan was recruited by a co-accused, Mr Luo, who the prosecution says accepted the contract. Mr Jia gave evidence of the drug debt and he was cross-examined by some of the accused to the effect that there was no such debt. The existence of the debt and the contract are significant and disputed issues in the trial.

The objection is based on material contained in an investigator’s note created on 20 July 2018. That note states that Detectives Chivers and Roberts attended on the witness on the same day, that is, 20 July. The note details some of the things the witness told police but also contains the following:

It was submitted: [1]

Counsel relied on a case called R v Yassar Bakir [2009] NSWDC 12. In that case a witness had participated and selected two photographs she said “may be” the perpetrator of a shooting offence. At committal proceedings, the Prosecutor told the witness that one of the photographs she selected was “not a suspect”. The witness “understood that what she was being told was that she had made a mistake regarding her identification of the person [in the second photograph]”. The witness then gave evidence identifying the person in the other photograph as the perpetrator. That person was the accused. In the course of her committal evidence the witness lied about the conversation with the Prosecutor. Berman SC DCJ excluded the evidence of the identification of the other photograph. His Honour held that the Prosecutor’s conduct was the “most likely explanation for what I accept is a change in the level of certainty given by Mrs Moore to her identification of the [accused]”. His Honour found that “to say to [the witness] ‘you got number 16 wrong’ tells her that she got number 7 ‘right’.”

Judge Berman formed the view that the probative value of the evidence was “low”. This was the result of many factors some of which were fairly typical in cases of identification evidence while others were specific to the case. The latter included the impact of the Prosecutor’s conduct on the witness’s evidence and the witness’s credibility. [2] Judge Berman analysed the prejudice at [30]-[34]. His Honour said at [33]:

I accept Mr Quilter’s submission that similar considerations arise here although the circumstances are very different. In the present case the extent to which the witness’s confidence will be enhanced (if any) is not known. It is to be remembered that it is now over two years since the police made the unfortunate decision to share their case theory with Ms Hsu. Whether she even remembers what was said in that conversation is not known. The extent to which it may increase the confidence with which she gives evidence is incapable of calculation.

My assessment is that the evidence has a relatively high degree of probative value. It has been put to Mr Jia, earlier in the trial, that there was no drug debt. Counsel for Mr Fan conceded there was no admission by Mr Fan that there was such a debt. [3] In view of the prosecution case theory, it is an important part of the circumstantial case. If Ms Hsu’s account of the conversation with Mr Fan is accepted, the evidence is capable of affecting the jury’s assessment of a significant fact in issue – albeit that it is “not an admission that there was, in fact, a drug debt” but rather “an admission that Mr Fan had knowledge that there was a drug debt”. [4] In assessing the probative value, I am conscious of the fact that the precise date of the conversation between Ms Hsu and Mr Fan is not clear and that the conversation is not directly related to the drug deal about which Mr Jia gave evidence or the debt allegedly owed to the person known as “James”.

On the other hand the danger of unfair prejudice is difficult to assess because, unlike the case of Bakir, the impact of the police officer’s words on the witness is not known. I do accept that counsel is placed in a difficult position and that it is no answer to say, as the Prosecutor said, that the police conduct could be elicited and the jury instructed to disregard their theory of the case.

Even so, I am satisfied that the probative value of the evidence outweighs the danger of unfair prejudice or, put the other way, I am not satisfied that the probative value of the evidence is outweighed by the danger of unfair prejudice: see s 137 of the Evidence Act 1995 (NSW).

Accordingly, the evidence in paragraph 29 of the statement of Ms Hsu is admissible.