R v Al Batat & Ors

Supreme Court of NSW|2020-08-24|Before: Hamill J

Solicitors: Solicitor for the NSW DPP (Crown) TS Law Firm (Al Batat) Voros Lawyers (Luo) Zahr & Partners (Fan) George Sten & Co (Liu) Ross Hill Lawyers (Bayliss) Younes & Espiner (Li) File Number(s): 2018/242293; 2018/214586 (Al Batat) 2017/170943; 2018/380808 (Luo) 2017/168582 (Fan) 2017/168476 (Liu) 2017/321618 (Bayliss) 2018/214894 (Li) Publication restriction: No publication until conclusion of trial

Judgment

On 14 August 2020 I published a judgment concerning the admissibility of certain evidence the Prosecution sought to tender at the trial of Jacob Bayliss who is charged with two counts of supplying firearms: R v Al Batat & Ors (No 3) [2020] NSWSC 1061. That judgment rejected the tender of parts of the evidence on the basis that its only possible relevance was as tendency evidence. No tendency notice had been served. Against the possibility I would reach that conclusion, the Prosecutor sought an order dispensing with the notice requirements. Because no prejudice arising from the failure to provide reasonable notice was identified by counsel for Mr Bayliss, I made the following order: "I direct that the notice requirement under s 97(1)(a) of the Evidence Act be dispensed with under s 100 subject to the following conditions: (i) The Prosecutor is to file and serve a tendency notice in accordance with Regulation 5 of the Evidence Regulation 2015 (NSW) by 4:00pm on Monday, 17 August 2020. (ii) The Prosecutor is to file and serve any additional written submissions (of no more than 5 pages) on the issue by 4:00pm on Monday, 17 August 2020."

The evidence

The substance of the tendency evidence identified in the notice comes from four sources. The first source is the witness Martina Sellers (a pseudonym). [1] Most of her evidence is admissible on the substantive issues between Mr Bayliss and the Prosecution. One piece of her evidence is pressed as tendency evidence and on no other basis. [2] The second source of the tendency evidence is a text message which forms part of a conversation between Mr Bayliss and a man called Bradley Pattenden. The third source is the evidence of Constable Kate McGrath in relation to Mr Bayliss's arrest on 14 February 2017. The final source of the tendency evidence is an electronically recorded interview ("ERISP") between police and Mr Bayliss on 24 October 2017. The relevant evidence is contained in three volumes of material tendered by the Prosecution in the voir dire and marked Exhibit VDA.

Martina Sellers

Ms Sellers is a critical witness in the case. Based on her statement of 29 June 2017, it is expected she will give the direct evidence that on 1 February 2017, Mr Bayliss (whom she refers to as "Shiv") attended Mr Liu's apartment in Burwood and supplied three of the co-accused (Messrs Luo, Liu and Fan) with two firearms. The prosecution case is that these were two of the three guns used in the shooting that occurred at Guildford later that day.
The tendency notice identifies the following evidence as going to the substantive issues in the trial:

Paragraphs [23]-[24]: Ms Sellers says she was driving in a car with Mr Bayliss (or "Shiv") from the Central Coast to Sydney. She saw he had "a long brown and black gun in his hand" and was "fiddling" with it. She described the gun as old, black with a brown wooden handle, a "little less than a metre long" and one barrel.
Paragraphs [30]-[31]: The witness says, once they reached Sydney and parked, Mr Bayliss used a black t-shirt "to wrap the black and brown long gun". She says they got out of the car and Mr Bayliss "had the gun tucked under his right arm with the barrel facing towards the ground" and he then "put the end of the gun down his pants on the right side [with] the top of the gun under his arm pit and jacket". He also put a black backpack (alleged to have contained another gun) over his left shoulder.
Paragraph [37]: Once they were inside the Mr Liu's apartment, Ms Sellers "watched as Shiv removed the long gun from his pants and put it underneath the three-seater [lounge]."
Paragraphs [43]-[45]: Ms Sellers says Mr Bayliss showed his "Asian friend" the gun described in paragraphs [23]-[24]. He also showed another "dodgy" black gun and said "this one does not have the safety clip, so I'll have to bring it when I come next time". The two guns were put underneath the three seater lounge.
Paragraph [49]: Ms Sellers says that two other males of Asian appearance arrived at the Burwood apartment and brought "drugs that were in a freezer bag" to give to Mr Bayliss. They also counted some money.
Paragraphs [51]-[56]: Ms Sellers says the three Asian men handled the long gun with the black handle and the smaller black "dodgy" gun. Mr Bayliss produced some silver bullets from his backpack which he wiped down, then loaded the guns. He provided instructions on how to use the guns and said "If anything was to happen, make sure I get the guns back to get rid of them for you. If you need my help, I will help you".
Paragraph [60]: Ms Sellers says that the "older Asian" received a phone call and left quickly with the "taller Asian" taking the cash with them. They left the guns behind and Mr Liu moved them into the bedroom of the apartment.

The evidence relied on as tendency evidence is set out in paragraph [42] of Ms Sellers' statement: "Shiv and the Asian were talking for a bit and I used Shiv's Samsung Galaxy S7 edge to check my Facebook. I remember hearing one conversation that got my attention. Shiv and his Asian friend were talking about Shiv having recently sold the Asian a small gun. The Asian spoke about how he liked it because he could hide it in his clothing when he carried it. To my surprise I saw the Asian open a small black case that had a zipper and took out a small gun. This gun was not like a police gun. It was like a cute miniature cowboy gun. It was all black. The Asian was show boating it and put it back in the black case. I never saw [Shiv] touch this miniature gun."

Text message to Bradley Pattenden

The Prosecution also seeks to rely on a text message sent by Mr Bayliss to Bradley Pattenden on 8 February 2017 as tendency evidence: "[BAYLISS] Wana do me a trade? Swap u the 5g for 12ie n 22semi? 2 n half g ea one? Ill put em to good use;)"

Statement of Constable Kate McGrath

Ms McGrath can give evidence of the arrest of Mr Bayliss on 14 February 2017 and of police finding three firearms in his possession (or in a car over which he had control). The relevant parts of her evidence are identified in the tendency notice: "[16] In the foot-well behind the driver's seat I also located a white pair of men's shorts with a blue Nike tick on them and black paint stains. Located with the shorts was a Navy blue Russell Athlete men's t-shirt with green writing on the front. Underneath these two items of clothing I located a blue striped pillow case containing a sawn-off double barrel shot gun I continued searching the Nike bag and [found] a plastic bag containing a silver pistol. I also located a grey zip pouch in the Nike bag containing several ammunition rounds of different sizes. [17] Senior Constable Eadie pointed to the silver pistol and said to the accused, 'Is that loaded?' The accused replied, 'Yeah be careful'. Senior Constable Eadie said, 'Jacob are there any other firearms in the car?' The accused said, 'Nup. Not that I know of' […] [21] Senior Constable Eadie said, 'There's a shot gun wedged down the side of the drivers seat' [22] Senior Constable Pouhila video recorded as Senior Constable Eadie pulled a single barrel shot gun from the side of the driver's seat. As he opened the barrel to the firearm a round shot up and landed several metres away."
In the ERISP Mr Bayliss admitted that he owned the three firearms seized on 14 February 2017. He said at question 694: "Q694 How long have these firearms been in your possession? A Not very long. That one was, that one was beautiful."
That question and answer is not included in the tendency notice but was before the Court on the voir dire.

Electronically recorded interview dated 24 October 2017

The Prosecution relies on the following evidence from Mr Bayliss's ERISP on 24 October 2017: "Q693 How did that happen? A I don't know, that's how I got 'em. […] Q695 Mmm. A I love me guns. Huh. My dad w(sic), helped found Kariong pistol Range. Yeah. […] Q698 Yeah. A - - - you know, it's ridiculous, and I just keep getting' into trouble when, when I come across these things, you know. It's fuckin bullshit. […] Q929 You had an interesting conversation with him. It's the 8th February. So you would be mobile at the mo, how are you looking for the 5 Gs, brother, it's nearly a Q and I need it bad right now, so was goin', so what's goin' on mate? So would you be on mobile? Are you on the move? How we lookin' for the 5 Gs? 5 grand. Nearly a Q. And then the response from Patto is, Fuckin' sorry, bro, I'm holed up in Hammo, cops are smashin' us here, can't go nowhere without gettin' pulled and searched. Then you say, Wanna do me a trade, swap you the 5 G for 12 IE and .22 semi, two and a half G each one, I'll put 'em to good use. So 12 I and E……some sort of air rifle, paintball gun. .22semi's a .22-calibre semiautomatic. You trying to buy guns of(sic) Patto? A I do that when I come across 'em. You know, I love 'em? […] Q1018 Just think about, is there any, why do you think that we've come to, uh …. A 'Cause I've always got [guns]. I, like, love me guns. Q1019 Yeah. A You know what I mean? But my problem is I get them, I accumulate them. You know what I mean? And then I fuckin' get caught with them. […] Q1046 Which is why I was asking you before, and my colleague asked you, on the 9th of February what did you take back? A No, nothin, these were, these were, I, these never went to Sydney, these were my, these were my guns."

The probative value of the evidence

Before tendency evidence can be admitted, the Prosecution must establish that the evidence has significant probative value. This requires identification of the facts in issue between the Prosecution and Mr Bayliss. The issue in the case is an uncomplicated one; it is whether Mr Bayliss supplied the guns on 1 February 2017. To establish that fact, the Prosecution relies on the evidence of Ms Sellers. Ms Sellers is an informant and it may be alleged that she was criminally concerned in the events giving rise to the charges. On her own account, she was present at the transaction where it is alleged that drugs and guns were supplied. Her evidence and credibility is likely to be the subject of a substantial attack. It is expected that there will be some circumstantial evidence capable of supporting her account. This includes text messages and telephone records that might give rise to an inference that Mr Bayliss was in contact with the co-accused and attended the apartment at the relevant time. Mr Bayliss admitted he was at the Burwood apartment in his defence case statement under s 143 Criminal Procedure Act 1986 (NSW). There is also CCTV footage of Mr Bayliss and Ms Sellers at the Burwood apartment at the time of the meeting. However, as I understand the Prosecution case, the only evidence that the accused supplied guns that day will come from Ms Sellers.
Having identified the facts in issue, it is necessary to consider both the extent to which the evidence supports the existence of the tendency alleged and how such a tendency affects the probability that the offence was committed. In Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [41], the majority said: "The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as "underlying unity", "pattern of conduct" or "modus operandi". In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged."
One of the arguments made on Mr Bayliss's behalf in the present case was that "the above (singular) events [3] are not of themselves so unusual as to constitute a tendency on the part of Jacob Bayliss". Reliance was placed on a judgment of Davies J in which he cited paragraph [64] of the High Court's judgment in Hughes v The Queen: R v Davidson (No 1) [2019] NSWSC 980. The relevant passage in Hughes v The Queen endorsed the proposition that: "A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant."
The decision of the High Court in Hughes v The Queen establishes that the extent to which unusual features inform an assessment of the probative value of evidence is dependent on the facts in issue in the case. For example, the degree of particularity of the tendency evidence is more significant where identification of the perpetrator is in issue rather than where, as here, the issue is whether the accused committed the offence(s) charged against them: Hughes v The Queen at [39], [41] and [95].
Another argument was that Mr Bayliss's statements that he loved firearms and that he collected guns was not accompanied by any "relevant dates". It was suggested that the love of guns was only established as at the date of the interview. I am unable to accept these submissions. A proper analysis of the evidence makes it clear that Mr Bayliss's "love of guns" was a passion of long standing. It began with his father's interest in guns and was manifested, for example, by his description of one of the guns seized by police on 14 February 2017 as "beautiful". [4] In making this observation, I am conscious of the fact that this answer was not identified in the tendency evidence. Even so, the responses to police in the interview do not suggest that Mr Bayliss's passion for firearms was a transient one or that it emerged after the events of February 2017. The evidence upon which reliance is placed by the Prosecution is plainly capable of establishing that Mr Bayliss's interest in guns existed at the time of the alleged offences.
A further argument was that the evidence did not establish a tendency to sell or supply firearms, as opposed to a tendency to own and accumulate them. This is true and I accept that evidence of such a tendency would have greater probative force than evidence of a tendency to possess firearms. However, that fact does not mean that the evidence of a tendency to possess firearms does not have relevance to the charge and "significant probative value". The question will "depend on the extent to which the tendency makes more likely the elements of the offence charged": Hughes v The Queen at [64].
Counsel also submitted that "the above (singular) events are so varied, both in their substance and in their timing, such that they do not demonstrate a 'tendency' by reason of any repetition on the part of Jacob Bayliss". [5] However, the evidence must be considered as a whole. The enquiry into the probative value of the evidence ought not to be undertaken in a piecemeal fashion. The s 97 assessment relevant to the admissibility of tendency evidence, requires the Court to have "regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence": Evidence Act, s 97(1)(b).
The tendency evidence of Martina Sellers is not admissible
A critical fact in issue is the credibility of Ms Sellers' account of the meeting at which the guns were allegedly supplied. It is that evidence that the Prosecution seeks to support by the tendency evidence. Ms Sellers' own account of events said to support the tendency asserted does not have significant probative value.
In IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, the High Court considered a sexual assault case wherein the Prosecution adduced evidence from the complainant herself as to other acts of sexual interference. The evidence of the other acts was led to establish a tendency that, in turn, supported the credibility of the complainant in relation to the charged offences. The High Court did not accept that such evidence had significant probative value. French CJ, Kiefel, Bell and Keane JJ held (at [63]): "Evidence from a complainant adduced to show an accused's sexual interest can generally have limited, if any, capacity to rationally affect the probability that the complainant's account of the charged offences is true. It is difficult to see that one might reason rationally to conclude that X's account of charged acts of sexual misconduct is truthful because X gives an account that on another occasion the accused exhibited sexual interest in him or her."
While the factual circumstances are obviously different, similar considerations arise here. Ms Sellers' evidence said to support the tendency case - that is the evidence that Mr Bayliss "admitted to having recently supplied a small pistol to the co-accused Liu" [6] - does not have significant probative value in providing support for Ms Sellers' account that Mr Bayliss supplied two guns on 1 February 2020. The evidence comes from the same source and the same reasoning adopted by the High Court in IMM v The Queen is apposite to the circumstances of the present case.
For those reasons the evidence of Martina Sellers in paragraph [42] is inadmissible in Mr Bayliss's case.
Whether that part of her evidence - excluding the supply of the guns by Mr Bayliss - is tendered against Mr Liu is not clear. Its relevance, if any, to Mr Liu's case has not been agitated.

The evidence of the text message is not admissible

Relying on the decision in R v Davidson (No.1) at [33]-[36] Mr Norrie submitted, correctly, that the occurrence of a single event will rarely establish a relevant tendency.
This submission has particular relevance to the evidence of the text message from Mr Bayliss to Mr Pattenden. That is the only evidence that supports the tendency to "exchange firearms for other items". I am unable to accept that this single text message (even if it is taken into account with the other evidence that will be adduced by the Prosecutor) is capable of establishing the tendency alleged. Even though the language in the text message is a little obscure, it clearly gives rise to an inference of drug dealing. For that reason, the probative value of this particular item of evidence does not "substantially outweigh" the prejudice it will occasion to Mr Bayliss: see s 101(2) of the Evidence Act.
For those reasons, I reject the tender of the text message and will not allow the Prosecution to advance a case that Mr Bayliss had a tendency to exchange firearms for other items.
This ruling will result in the exclusion of the text message to Bradley Pattenden and question 929 of the ERISP.

The remaining evidence is admissible as tendency evidence, subject to appropriate editing

However, I am generally satisfied that the remaining evidence - in particular the possession of three firearms on 14 February 2017 and Mr Bayliss' statements in the ERISP establishing his love and accumulation of firearms - is admissible as tendency evidence.
Mr Norrie submitted that the evidence of Mr Bayliss's statements in the ERISP that he "loves guns" was not capable of supporting a tendency to possess firearms. Counsel provided the following analogy: "[t]o use an example, one may say they love Ferraris but it doesn't mean they necessarily have possession of it". [7] While I understand the force of this submission, the evidence cannot be considered in isolation. Once account is taken of Mr Bayliss's admissions to "accumulating" firearms and the evidence of his possession of three guns on 14 February 2017, I am satisfied the evidence is capable of supporting a tendency to possess firearms.
Putting aside the evidence I have rejected, the remaining evidence identified in the tendency notice has significant probative value. The fact in issue is whether Mr Bayliss supplied guns on 1 February 2017. The related fact in issue concerns Ms Sellers' credibility in asserting that he did so. It will be open to the jury to reason that a person with a tendency to be in possession of guns is more likely to be in a position to supply guns. The evidence is capable of providing circumstantial support for Ms Sellers account that Mr Bayliss was in possession of guns on 1 February 2017 and that he brought those guns to the apartment in Burwood. That fact, if it is established has a significant impact on the probability that he supplied guns to Messrs Liu, Luo and Fan. The evidence is capable of providing circumstantial support for the account given by Ms Sellers in a case where her credibility will be one of the principal issues in the trial. To paraphrase part of the Prosecutor's argument, most people in Australia do not possess multiple firearms and the fact that a person has a tendency to do so has significant probative value to a disputed allegation that they supplied firearms.
In contesting the admissibility of this evidence, Mr Bayliss relied on the fact that the evidence related to events that occurred about two weeks after the alleged supply of guns on 1 February 2017. If the possession of guns on 14 February 2017 was the only evidence of Mr Bayliss's possession of firearms, this submission may have more resonance. Similarly, if the time gap between the alleged offences and the possession of guns relied on as tendency evidence was greater, the probative value would be diminished.
For example, in McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 there was a 10 year gap between the occurrences of the acts giving rise to the tendency case and the offence charged. The High Court held the evidence was not admissible. The plurality said at [32] that the evidence: "[…] rose no higher in effect than to insinuate that, because the appellant had sexually offended against 'B' and 'C' 10 years before, in different circumstances, and without any evidence other than 'A''s allegations that he had offended again, he was the kind of person who was more likely to have committed the offences that 'A' alleged."
On the other hand, in Vagg v R [2020] NSWCCA 134 the Court of Criminal Appeal upheld the admission of tendency evidence based on events that had taken place four years after the offence charged.
In the present case, the passing of two weeks between the allegations giving rise to the charged offences and the possession of the three firearms, does not impact greatly on the probative value of the tendency evidence. This is particularly so when the evidence is considered with the other evidence the Prosecution will elicit, including the evidence of Mr Bayliss's love of guns and his habit of accumulating them. Similarly, the nine months between the alleged offences and the ERISP (another matter relied on by counsel) is of little significance in circumstances where the evidence taken as a whole supports an inference that Mr Bayliss's love of firearms was an enduring one.
I have considered the provision in s 101(2) of the Evidence Act and the need to evaluate the risk of prejudice in the admission of tendency evidence. In Hughes v The Queen the majority said at [17]: "The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury's emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years."
I am conscious of the potential for prejudice. However, there is little chance that the jury will misuse this evidence or give it more weight than it deserves if provided with proper directions. The relevant directions were considered recently by the Court of Criminal Appeal: BRC v R [2020] NSWCCA 176.
I am satisfied that the probative value of the evidence substantially outweighs any prejudicial effect the admission of the evidence may have on Mr Bayliss.
That conclusion is fortified by the fact that the Prosecutor will edit the interview and tailor the evidence of the seizure of guns on 14 February 2017 in such a way that evidence of other criminal conduct, previous convictions and evidence of general bad character will not be adduced. [8] For example, the answer to Q 698 may need to be edited to delete the reference to Mr Bayliss "getting into trouble".

Evidentiary rulings

For those reasons I make the following rulings: 1. The tendency evidence in paragraph [42] of Ms Sellers' Statement of 29 June 2017 is not admissible. 2. The evidence of the text message sent to Bradley Pattenden on 8 February 2017 is not admissible. 3. The Prosecution will not be permitted to conduct the case on the basis that Mr Bayliss had a tendency to exchange firearms for other items. 4. The evidence in Question 929 of the electronically recorded interview of Mr Bayliss on 24 October 2017 is not admissible. 5. The Prosecution will be permitted to conduct the case on the basis that Mr Bayliss had a tendency to possess firearms at the relevant time. 6. The evidence of Constable Kate McGrath concerning Mr Bayliss's possession of three firearms on 14 February 2017 is admissible, subject to appropriate editing. 7. The evidence in the electronically recorded interview of Mr Bayliss on 24 October 2017 concerning Mr Bayliss's love of guns and his admissions that he possessed and accumulated firearms is admissible.

Endnotes

R v Al Batat & Ors (No 1) [2020] NSWSC 967.
Transcript (T) 24/08/2020, p 565-566.
This is a reference to the evidence identified in the tendency notice.
ERISP, Q694.
Written submissions on behalf of Mr Bayliss at [9] (MFI 56).
Tendency notice (MFI 51).
T 20/08/20, p. 510.
T 20/08/2020, p 512. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 November 2020

Evidence Regulation 2015(NSW)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (12 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (10)

Cited By (1)