R v Al Batat & Ors

Judgment

1. Yesterday, the Prosecutor sought leave under s 32 of the Evidence Act 1995 (NSW) to have the current witness, Ms Wai Li, refresh her memory from a police statement she made on 1 May 2019. Three of the six accused opposed the grant of leave. The evidence subject of the s 32 application concerns a "conversation" between Ms Li and one of the accused, Mr Luo, which was conducted over a medium known as WeChat the day after the alleged murder on 1 February 2017. That is, the alleged WeChat messages were sent and received on 2 February 2017, more than two years before Ms Li's statement was made. The evidence was considered in two separate judgments in the course of the pre-trial hearing: R v Al Batat & Ors (No 8) [2020] NSWSC 1095 and R v Al Batat & Ors (No 10) [2020] NSWSC 1107. In the first of those judgments I ruled the evidence was admissible against Mr Luo and in the second I ruled that it was inadmissible against Mr Liu. In accordance with those rulings, the evidence is only being elicited in Mr Luo's case.
2. The way in which the evidence came out, and the manner in which the application for leave was made and opposed, is recorded in yesterday's transcript: [1] "CROWN PROSECUTOR Q. After Ada had told you about the person who had been shot and killed in the house near Auburn, did you have any contact with the person Johnny? A. INTERPRETER: Yes. Q. How did you contact him? A. INTERPRETER: WeChat. Q. What did your WeChat message to him say? A. INTERPRETER: Asked if he knew about the event that occurred last night. Q. Did he reply? A. INTERPRETER: He said 'How could you know' or 'How did you know'. Q. Did you reply to that message? A. INTERPRETER: Yes, 'Ada told me'. Q. That was what you replied to him? A. INTERPRETER: Yes. Q. What was the next WeChat part of the conversation? A. INTERPRETER: He said 'Yes, it was Da Yu just on impulse'. Q. Was there more to that text exchange or WeChat exchange after that 'It was Da Yu just on impulse'? A. INTERPRETER: I said 'Why and it has nothing to do with the dead'. Q. Did you know then who the person who had been killed was? A. INTERPRETER: Yes. Q. Who was that? A. INTERPRETER: I call her Xiao Di. Q. Was it a male or a female? INTERPRETER: Sorry I withdraw. 'I call him Xiao Di'. CROWN PROSECUTOR Q. And Xiao Di is little brother? A. INTERPRETER: Little brother. HIS HONOUR: Are you moving on from that WeChat conversation? CROWN PROSECUTOR: I want to explore it a bit more. HIS HONOUR: This is evidence that you are tendering against Mr Luo? CROWN PROSECUTOR: Only against Mr Luo. HIS HONOUR: I think the jury should understand that at this stage. You can finish it off but I think they need a clear understanding that what Mr Luo might say is not admissible against the others and, in particular, when he says, 'Mr Liu shot him on impulse' or words to that effect, that that is not admissible against Mr Liu in this trial. CROWN PROSECUTOR: That's right, yes. HIS HONOUR: I will let you finish it off and I will try to give a more formal direction. CROWN PROSECUTOR: Thank you, your Honour. Q. The last part, Madam, that you have told us about was you sent a message that said 'Why, it has nothing to do with', and I'm sorry, Mr Interpreter, what was the last word that you used? I will have to do it through the witness. Can you tell us again what that message was, 'Why, and it has nothing to do with' ‑ what did you say? A. INTERPRETER: That dead person. Q. 'The dead person', yes, thank you. So after you sent that message, 'Why, it has nothing to do with the dead person', did Johnny reply? A. INTERPRETER: Yes. Q. What did Johnny reply? A. INTERPRETER: 'Shoot the wrong person'. Q. Other than 'Shoot the wrong person', did Johnny say anything else in those WeChat messages? A. INTERPRETER: No. CROWN PROSECUTOR: I have an application under s 32, firstly, of the Evidence Act. HIS HONOUR: Can that be dealt with in the presence of the jury. It is an application to refresh? CROWN PROSECUTOR: Yes. HIS HONOUR: Does anyone have an objection to that at this stage or do you need us to ventilate it in the absence of the jury? ALL COUNSEL INDICATED NO HIS HONOUR: Is everybody in agreement? There is no objection to refreshing the memory under s 32? QUILTER: Would your Honour pardon me? HIS HONOUR: Yes. QUILTER: I don't wish to be heard. CROWN PROSECUTOR: The only thing is that the statement was not made until May 2019. S 32 has‑‑ HIS HONOUR: The application is not opposed. If you want to talk me out of it. CROWN PROSECUTOR: I don't, your Honour, thank you. Q. If the witness could be shown this document (shown). WEBB: In my submission, in relation to the application, it ought to be pursued in the first instance by showing the witness the message, the actual message. HIS HONOUR: The WeChat message? WEBB: Yes, in my submission. HIS HONOUR: All right, well there might need to be some evidence about that, I suppose. Mr Prosecutor? CROWN PROSECUTOR: The application is for her to refresh her memory by reference to her statement. HIS HONOUR: Yes, I understand that. Mr Webb is now saying that maybe you should do it via the message. CROWN PROSECUTOR: I don't understand that I have the message, only her statement about the content. HIS HONOUR: All right. N CARROLL: There is something arising."