R v Al Batat & Ors (No 25)

On Monday, 28 September 2020, counsel for Mr Luo, Mr Bayliss, Mr Fan and Mr Liu (that is, Mr Webb, Mr Norrie, Mr Quilter and Ms Carroll) joined in an application to limit the use of the evidence of Martina Sellers (a pseudonym). The application was foreshadowed on Friday, 25 September 2020. [1] This application came after I granted leave under s 32 of the Evidence Act 1995 (NSW) allowing the witness to use her statement in an attempt to revive her memory as well as leave pursuant to s 38 of the Evidence Act allowing the Prosecutor to question the witness as though he was cross-examining her: see R v Al Batat & Ors (No 20) [2020] NSWSC 1319. Counsel for Mr Bayliss submitted the limitation issue should be determined before the trial continued because the admissibility of some of the evidence to be tendered by the prosecution turned on the foundation provided by Ms Sellers’ evidence.

I heard submissions on the issue on Monday, 28 September 2020. Four of the accused submitted that the things Ms Sellers said in her statement concerning the alleged supply of guns by Mr Bayliss should be limited under s 136 of the Evidence Act so that it could be used only as evidence going to her credibility. Based on the submissions provided and the evidence adduced to that point in the trial, I rejected the application to limit the use of the evidence and declined to make any order under s 136 of the Evidence Act. These are my reasons for that decision.

Ms Sellers’ evidence is crucial in the case of Mr Bayliss and is significant in the circumstantial case against Messrs Liu, Luo, Fan and Al Batat. There is no dispute that Ms Sellers travelled with Mr Bayliss to Mr Liu’s apartment in Burwood on 1 February 2017. She was present when there was a meeting or transaction between Mr Bayliss and Messrs Liu, Luo and Fan. The prosecution alleges that during this meeting Mr Bayliss supplied firearms to Messrs Liu, Luo and Fan (counts 2 and 3 on the indictment). It is agreed that during the same meeting, the latter three men supplied Mr Bayliss with a quantity of methylamphetamine. It is alleged that the firearms were used in the murder of Qin Wu and the attempted murder of Jun Jia later that same day at premises in Guildford.

In an induced statement to police dated 29 June 2017 (MFI 24), Ms Sellers recounted the events of 1 February 2017. Her statement details the events leading up to and including the meeting at the apartment in Burwood. Ms Sellers told police that Mr Bayliss had a gun or guns in the car on the trip to Burwood, took the firearms with him into Mr Liu’s apartment and supplied the weapons to Messrs Liu, Luo and Fan in exchange for an undisclosed quantity of methylamphetamine. Ms Sellers also said in her statement that Mr Bayliss asked her to count a quantity of cash when they were in the car together and that Mr Bayliss later handed the counted cash to one of the men at the apartment. The precise details of the transaction in terms of the exchange of money, drugs and guns are unclear.

During the course of her evidence, Ms Sellers adopted certain parts of her statement to police but not others. She said that her memory of the events was poor. It may be that she was not trying very hard, or was deliberately avoiding giving evidence of the alleged gun supply. When the contents of her statement were put to her, she adopted those parts relating to the supply of drugs at the Burwood apartment. As it turns out, each of the relevant four accused men have indicated that they admit the supply of drugs. However, while Ms Sellers agreed that she referred to guns in her statement to police, she did not adopt those parts of her statement in the witness box. Ms Sellers denied that the things she had said about the guns (as recorded in her induced statement) were true or that they accorded with her actual memory of the events.

Because Ms Sellers did not adopt the evidence concerning the supply of guns, there was no direct evidence going to that issue. The evidence of what she said in her statement about the guns is hearsay evidence. Because the evidence was admissible for a non-hearsay purpose – that is, to cross-examine pursuant to leave under s 38 and to prove a prior inconsistent statement under s 43(1) – s 60 of the Evidence Act provides that it is admissible for the “hearsay purpose”, that is, in proof of the supply of guns. Section 60 made a substantial change to the common law: see, for example, Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60 at [28]; Adam v The Queen (2001) 207 CLR 96 at 100; [2001] HCA 57 at [19].

It was in this context that the application to limit the use of the evidence pursuant to s 136 of the Evidence Act was made. The application was that the evidence be limited so that it could only be used in an assessment of Ms Sellers’ credibility.

Section 136 of the Evidence Act is in the following terms:

In spite of the legal complexity of the issue, and its potential importance in the case, the application was made initially in a somewhat peremptory manner. [2] I indicated the Court would be assisted by submissions on the application of ss 60 and 136 of the Evidence Act, the High Court decision in Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60 and any relevant cases decided since. [3]

When the application was argued formally, the parties proceeded correctly on the assumption that the evidence was captured by the operation of the exception to the hearsay rule in s 60(1) of the Evidence Act:

The prosecution’s position was that the evidence about the guns in Ms Sellers’ out-of-court statement was “available as evidence of the truth” of the representations made in the induced statement. [4] It was submitted that limiting the use of the evidence pursuant to s 136 would essentially “subvert the intention of the legislature” and defeat the purpose of s 60. [5] Reliance was placed on some of the things said by Gleeson CJ and Hayne J in Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37. [6] However, that decision related to complaint evidence in a sexual case that was admissible under s 66 and Gleeson CJ and Hayne J specifically said that the “requirements of justice” may require limitation in some cases even for evidence admissible under that section. Further, McHugh J said at [94] (with citations omitted and my emphasis):

Counsel for Mr Luo mounted an argument that the Prosecutor had “exceeded” the grant of leave under s 38 of the Evidence Act and, implicitly, suggested that this should result in the limitation of the evidence under s 136. Mr Webb submitted that the Prosecutor questioned Ms Sellers on topics falling outside the scope of s 38(1)(b), that is matters “…which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence…” The complaint seemed to be that the Prosecutor was cross-examining on the prior inconsistent statement.

There was no substance to that submission. For one thing, the Prosecutor’s cross-examination was within the scope of leave granted under s 38(1)(b). The reason that it may reasonably be supposed that Ms Sellers had knowledge of the gun supply is because she was present at the time it allegedly occurred and because she gave a detailed account of it in her statement. While the grant of leave was not under s 38(1)(c), it was inevitable that the cross-examination would make reference to the matters contained in her statement. Further, no objection was taken to the Prosecutor’s cross-examination of the witness on her prior inconsistent statements. Those parts of the statement that were adopted by the witness contained factual assertions that accorded with the defence case – that is, that there was a supply of drugs by Messrs Liu, Luo and Fan to Mr Bayliss. Unsurprisingly, no objection was taken to this evidence being adduced as it was consistent with the case being conducted by the accused.

The remainder of Mr Luo’s submissions were difficult to understand, and were at times almost impenetrable. [7] As best as I could make out, there was a complaint that the Prosecutor was bolstering Ms Sellers’ credibility in relation to the drug transaction while discrediting her in relation to her purported lack of knowledge or memory of the gun transaction. I think it was being suggested that the jury would find it confusing to be told it could use the evidence in proof of the gun transaction when her credibility was being attacked on that issue, while at the same time being allowed to use the evidence of the drug supply when that evidence was consistent with her statement. If this is the submission that was being made, it is contrary to the fundamental proposition that a jury may accept part of what a witness says while rejecting other parts. Directing the jury in relation to the difference between the evidence she adopted or gave in court (which is direct evidence) and the evidence that only came in through the statement (which is hearsay evidence) is simple. Further, a strong warning under s 165 of the Evidence Act would emphasise that difference and ensure the jury treated the material that she did not adopt with caution.

I was unable to discern any merit in Mr Luo’s submissions on the issue.

Counsel for Mr Fan provided helpful submissions that posited a legitimate basis upon which a direction limiting the use of the evidence might have been based. [8] His submission was based on parts of Ms Sellers’ evidence concerning the circumstances in which her statement was made and the fact that some words and locations in the statement seemed to have a source other than the witness herself. Mr Quilter referred to the fact that the taking of the statement was not recorded on video. He also submitted that the reference to “Dean Street” was striking given that the witness clearly had no knowledge of that street or its name. One possible inference is that the street name was provided by police. Mr Quilter also relied on evidence that Ms Sellers felt under pressure to provide a statement. She gave evidence that she was due to be released from custody two days after giving her statement and that being released was her priority at the time. [9] Ms Sellers said that she was concerned about being charged with offences and said the word “accessory” was used by the police recording her induced statement. [10] Mr Quilter relied on the fact that it had only recently been disclosed that the police had a conversation with the witness in the days before the statement was taken. This disclosure came late and was devoid of detail.

The sum of these and other matters led Mr Quilter to submit that there was unfair prejudice in allowing the evidence to be used for a hearsay purpose, and that accordingly, the evidence should be limited to a “credibility purpose”.

Ms Carroll, on behalf of Mr Liu, made similar submissions and focussed on the fact that the material in the brief did not provide any insight into how the statement from Ms Sellers was taken. [11] This dove-tailed with Mr Quilter’s complaint that there was late and incomplete disclosure as to the circumstances in which Ms Sellers’ statement came to be made.

Mr Bayliss had the largest interest in the issue and had submitted on the previous Friday that the decision on limitation should be made before the trial continued. [12] Counsel adopted the submissions made on behalf of the other accused. [13]

Senior Counsel for Mr Al Batat did not oppose the making of an order limiting the use of the evidence. However, she indicated there were some respects in relation to which she sought to use the contents of the statement as evidence of the truth of the assertions contained therein. These matters were somewhat peripheral – involving a plan for some of the group to go out for dinner in the city – and need not be considered unless there is a direction otherwise limiting the evidence.

I have taken into account the things said by the High Court in Papakosmas v The Queen which I have set out at [11]. McHugh J made helpful observations on these and related issues from [90]-[97]. While I accept that a direction limiting the evidence ought not to be made as a matter of course, the circumstances are very different when the evidence comes in as credibility evidence (or in consequence of a grant of leave under s 38) and cases where it is admissible pursuant to ss 65 or 66 of the Evidence Act.

I have also considered the fact that s 60 of the Evidence Act was designed to simplify the law and was calculated to effect significant change in the common law of evidence. This has been made clear by the High Court in Lee v the Queen and Adam v The Queen.

In Schanker v The Queen [2018] VSCA 94 the Court said at [108]-[110]:

In reaching my conclusion on the application, I considered the maters referred to in Schanker and, in particular, the directions that could be provided to the jury to reduce any potential for prejudice or misuse of the evidence.

I also considered the circumstances in which the statement was made insofar as they are known. Ms Sellers’ evidence on this issue was vague and unsatisfactory. I am told that there has been inadequate disclosure of the circumstances in which the statement came into existence. It may be that further evidence will emerge either on the voir dire or before the jury when the relevant police officers give evidence. None of the parties sought to examine the police officers during the course of the application to limit the evidence.

Ms Sellers said that she was due to be released from custody in the coming days and was “called out”. She assumed that it was to take a call from Centrelink concerning her release. As it turned out there were police officers present who wanted to talk to her about her involvement and knowledge of the events giving rise to the murder of Qin Wu. Ms Sellers could not recall whether there were any meetings or communications before that day. Counsel for Mr Luo described this as a “Shanghai surprise”, a phrase that was (perhaps) unwitting, certainly unfortunate and inapposite to the prevailing circumstances of the police interview with Ms Sellers. It appears from the belated disclosure referred to by Mr Quilter that there was at least one meeting or conversation with police before the statement was taken. The contents of that conversation are not known or before the Court.

I took into account the uncertainty around the taking of the statement and Ms Sellers’ fears and apprehensions that may have caused her to provide a version that she believed the police wanted to hear. I have also considered the suspicious circumstance that words and place names were used that appeared to be outside of Ms Sellers’ knowledge.

I formed the view that these matters went to the reliability of the evidence rather than to its admissibility under s 60 or the limitation issue under ss 136 and 192. In advance of making this ruling, I provided the jury with a direction concerning the danger of hearsay evidence:

Counsel sought no further direction but that stance in no way diminishes the force or otherwise of the application that a direction be made limiting the use of the evidence. Further directions can, and will, be given in the summing up.

The matters that go to the reliability of the hearsay evidence will be easily understood by the jury and are amenable to judicial direction and warnings urging the jury to take great care before acting on the evidence of what Ms Sellers said in her statement. There is nothing complicated or confusing about approaching the evidence of the witness differently when it is disputed by the accused and when the witness herself does not adopt the things she said earlier.

I accept Mr Quilter’s submission that a limitation of the evidence is more likely when it comes in under s 60 than, say s 65 or s 66 of the Evidence Act. As I have said, that submission appears to accord with what McHugh J said in Papakosmas v The Queen. However, the circumstances prevailing here – on the evidence to this point in the trial – are insufficient to justify an order for limitation of the evidence.

All counsel submitted that s 192 of the Evidence Act applied because an order limiting the use of the evidence was a “judicial direction”. I acted on the joint position of the parties. In terms of the relevant considerations arising out of that section, I considered the following:

Nothing in this judgment or in the ruling made on 28 September 2020 prevents any party from seeking a direction in relation to the evidence, including a direction limiting the use of the evidence, later in the trial. I note that some counsel, in particular Mr Quilter, submitted that the application was premature. So it may be the case that further consideration of the matter is required later in the trial. At this stage all the jury has been told is that they will receive directions as to permissible use of the evidence later in the trial along with the warning that the evidence may be unreliable which I have set out above at [27].

It is for those reasons that I refused the application under s 136 of the Evidence Act to limit the use of the evidence.