R v Al Batat & Ors (No 30)

The parties have raised a difficult and complicated issue very late in the trial in circumstances where the jury was told there would be a late start due to a “legal argument” and where they have been waiting for a further hour beyond the start time. For those reasons, this judgment has been prepared hurriedly and delivered ex tempore and may be subject to significant revision before publication.

Objection has been taken to evidence proposed to be led by the Prosecutor as to the manner of the taking of a statement from a witness known as Martina Sellers. Her evidence and her statement dated 29 June 2017 (MFI 24) have been subject to a number of earlier rulings in the trial: see R v Al Batat & Ors (No 20) [2020] NSWSC 1319; R v Al Batat & Ors (No 24) [2020] NSWSC 1387; R v Al Batat & Ors (No 25) [2020] NSWSC 1388.

Ms Sellers was cross-examined by the Prosecutor about the contents of her statement, after he was granted leave to do so under s 38 of the Evidence Act 1995 (NSW). In a nutshell, Ms Sellers agreed that she had said things in her statement concerning Mr Bayliss' possession of guns and consistent with the prosecution case that there was an exchange of guns on 1 February 2017 between Mr Bayliss as the "supplier", and Messrs Luo, Liu and Fan as the "purchasers". However, Ms Sellers denied that the things that she said in her statement in relation to the guns were her true recollections of the events that occurred.

In evidence, Ms Sellers did not at any stage adopt the things she said about guns. She did, however, agree that she had said things about a drug supply moving in the other direction, that is from Messrs Luo, Liu and Fan to Mr Bayliss and herself. In the course of her evidence, Ms Sellers adopted those things as being true. As I understand it, that is generally consistent with the pleas that have previously been entered by the various accused involved (Messrs Luo, Liu and Fan) and with the case that they are conducting in this trial.

However, the contents of Ms Sellers’ statement that relates to what she said about guns are before the jury as evidence of the truth of those statements; that is, for a “hearsay purpose” in accordance with s 60 of the Evidence Act. An application made earlier in the trial, perhaps precipitously, to limit the use of the evidence was declined: see R v Al Batat & Ors (No 25) [2020] NSWSC 1388 at [33]-[34].

In the course of the evidence-in-chief conducted, as I say, by way of cross-examination by leave granted under s 38 of the Evidence Act, the Prosecutor put to the witness that she was not telling the truth and was not making a genuine attempt to do so.

In cross-examination on behalf of the various accused, a number of propositions were established. Of those propositions, four are of particular relevance to the present argument. These were enumerated by the Prosecutor yesterday when this issue was first raised. Those four issues can be put generally in this way:

The last issue emerged in the following cross-examination on behalf of Mr Bayliss: [2]

There was a strong implication throughout the cross-examination that words had been put in the witness’s mouth. For example, Ms Sellers’ statement contains a street name, Deane Street, Burwood, that seemed to be unknown to her. There were other expressions, phrases and words used with which she appeared not to be in any way familiar with. The suggestion was clearly that the investigating police may have provided the information to her in one way or another.

The other matter that emerged, both in the evidence-in-chief and in the cross-examination, was that she claimed to be surprised that the police had attended upon her at all. Ms Sellers said she thought she was being called out at the prison to take a phone call to do with her Centrelink entitlements. Instead there were police officers present and they proceeded to interview her about her knowledge of the events of 1 February 2017. That is the day Mr Bayliss allegedly supplied guns to Mr Liu, Luo and Fan and the day that those guns were allegedly used in the murder of Qin Wu. Ms Sellers was asked whether or not police had attended on her some days earlier and she denied that proposition, or said that she couldn't remember.

The Prosecutor now seeks to adduce evidence from the two police officers who were responsible for taking her statement. Statements dated 29 September 2020 by both Detective Senior Constable Matthew Sinclair and Plain Clothes Senior Constable Niall Chivers were tendered in evidence on the voir dire (Exhibits VDAA and VDBB respectively). The statement of Detective Senior Constable Matthew Sinclair is in the following terms:

Similarly, the statement of Plain Clothes Senior Constable Niall Chivers reads:

Other evidence tendered on the voir dire included two email chains wherein various legal representatives on behalf of the accused sought disclosure in relation to the way in which these statements were taken (see Exhibits VD21 and VD22). Also tendered was a handwritten note, which became Exhibit VD23, and appears to be the source of an investigator's note which is attached to Mr Sinclair's statement.

In addition to the matters contained in the statements of the police officers, the Prosecutor seeks or indicates that he intends to ask questions on the four subject matters that I have referred to earlier and which were identified by him in the course of the argument. That is:

The parties don't agree on much but they do all agree that this evidence is credibility evidence. I accept the submission made on behalf of all of the parties that the evidence is “credibility evidence” within the meaning of s 101A of the Evidence Act:

Consequently, the credibility rule in s 102 applies. This rule states that “credibility evidence about a witness is not admissible”.

However, s 106 of the Evidence Act provides an exception to the credibility rule:

The accused submit that the substance of the evidence was not put to Ms Sellers; that is, the substance of the evidence the Prosecutor now wants to adduce. It was not put to her by the Prosecutor that she was not on drugs at the time of the statement, that the police did not threaten to charge her, that she was not asked leading questions, nor whether things were put into her statement coming from any source other than herself, and whether she was falsely claiming that she did not want to make a statement.

I would note, parenthetically at this point, that the statement itself was an induced statement, so that clearly she was promised something, namely, that the evidence that she gave in her statement wouldn't be used against her. That evidence is already before the jury.

The Prosecutor submitted to the contrary and said that s 106 of the Evidence Act was complied with, based on the fact that the substance of the evidence had been put to Ms Sellers. The Prosecutor made the following submissions to this effect: [3]

I reject those submissions. I accept the submissions made by counsel for Mr Bayliss and Mr Fan on this issue. The "evidence" referred to in s 106(1) of the Evidence Act is the credibility evidence under consideration. It is not the general evidence that the witness gave, let alone the evidence contained in the police statement upon which she was cross-examined. Compliance with the section involves more than simply challenging the witness's honesty. Putting the "substance of the evidence" to the witness in s 106(1)(a)(i) of the Evidence Act involves putting the substance of the credibility evidence that the Prosecutor now seeks to establish.

Of that evidence, the only matter actually put to Ms Sellers in re-examination was that there had been an earlier conversation with the police. In relation to that the witness was unsure: [4]

The circumstances are unusual and I have taken that into account in considering how s 106 should operate in the particular circumstances. They are unusual because the evidence-in-chief was elicited almost entirely by cross-examination on the statement, so that the Prosecutor did not, in the usual course, have the kind of opportunity that would normally arise when s 106 is invoked as an exception to the credibility rule. However, the provisions in sections such as ss 26 and 28 of the Evidence Act provide sufficient flexibility to accommodate this. It was open to the Prosecutor at the time Ms Sellers was in the witness box to further cross-examine her and specifically to challenge her evidence on the subjects he now seeks to introduce through the police officers. Had he needed it, he could have sought an adjournment to allow himself to obtain the necessary “instructions”.

As I have said, the Prosecutor did in re-examination raise the fact there was an earlier interview. That was to rebut evidence the witness had volunteered, and that had been emphasised in the course of cross-examination, that she was surprised by the police attendance.

I am satisfied that the Prosecutor should be permitted, and will be permitted, to call both Officer Sinclair and Officer Chivers. They will be permitted to give evidence generally in accordance with their statements to establish (i) that they saw the witness on 27 June 2017, (ii) were told "certain things" about her movements on 1 February 2017 and (iii) that they made a note of the meeting. The note to which I refer, that is, the note in both its forms – the handwritten version and the investigator's note that was typed up from it – is not pressed by the prosecution and in any event, without going into reasons, would not be admissible as a prior consistent statement. The officers will also be permitted to give evidence that they returned to interview the witness on 29 June 2017 and took a statement from her.

The Prosecutor will not be permitted to produce evidence of the four specific matters identified in argument, namely:

In relation to those four matters, s 106(1)(a) of the Evidence Act is not satisfied. Therefore the credibility rule applies to the evidence and the evidence is not admissible.

The Prosecutor submitted that the reason he sought to raise the matter at all was that he was concerned that the defence counsel intended to disregard the rule in Browne v Dunn (1893) 6 R 67. That is, defence counsel did not intend to cross-examine the police and provide them the opportunity to confirm or deny the things Ms Sellers said about the making of her statement.

In argument, defence counsel confirmed that the Prosecutor's understanding was correct. Counsel for Mr Bayliss informed the Court of his intentions as follows:

A trial judge is not in a position, and ought not to attempt, to force counsel to ask particular questions because of some perceived failure to comply with rules such as the rule in Browne v Dunn. In the case of Regina v Ayoub [2004] NSWCCA 209, a trial judge did just that and the Court of Criminal Appeal held that the trial miscarried as a consequence:

Because of the ruling that I have made, the two witnesses in question, that is Officers Sinclair and Chivers, will be called to give evidence and will be made available for cross-examination. How counsel for the accused approach that cross-examination will be a matter for them. No doubt in embarking upon it, they will be conscious of the forensic and ethical consequences of failing to put matters, especially matters that may involve allegations of misconduct, to the two officers. There is ample material in the statement and in the evidence given by Ms Sellers upon which to base substantial cross-examination, but that is entirely a matter for counsel to decide. No doubt, counsel will be guided by things said in cases such as MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329; R v Birks (1990) 19 NSWLR 677, and R v Manunta (1989) 54 SASR 17.

In his textbook on evidence, [5] Mr Odgers sets out some of the possible consequences of a breach of the rule in Browne v Dunn at paragraph 46.150. I am referring here to the 15th edition of the book. A number of those consequences do not apply in criminal proceedings and the rule in Browne v Dunn ought not to be, and will not be in this case, used to punish the accused for the failings, real or perceived, of counsel. However, it may be that some comment will be warranted or necessary.

Whatever the ultimate outcome, the nature of a direction (if any) that I provide to the jury will turn on the cross-examination of the police officers and the nature of the addresses made to the jury.

I should add that I was also persuaded by Mr Webb's submissions that there was particular unfairness to his client in allowing the police, almost immediately before addresses, to give evidence that might be expected that it was: [6]

Mr Webb sought to add force of his submissions by reference to the iconic performer Liberace: [7]

I will let that go, but Mr Webb’s point, well made, was that there was real unfairness in allowing this particular issue to play out at the very end of the trial. Ms Sellers gave evidence on 24 September 2020. It is now 21 October 2020, and I have been told by counsel that the prosecution case will end either this week or early next week, and that no defence cases are expected to be given. Consequently, this issue will play out almost immediately before the Prosecutor's address. Mr Webb is correct to identify that as having a particular unfairness in the circumstances of the case. I also accept that the attack that Mr Luo made (implicitly) on the taking of the statement was of a far less substantial kind than that made on behalf of Mr Bayliss.

For those reasons, the Prosecutor may call the witnesses to give evidence in accordance with paragraph [25] but not to give evidence of the way the statement was taken or of the four specific matters referred to in paragraphs [7], [14] and [26].