In the course of the evidence of the witness known in this trial by the names Jian Feng Weng, "Sifu", "the Master" and "James", I refused an application by the Prosecutor under s 32 of the Evidence Act 1995 (NSW) but subsequently granted leave under s 38 for the Prosecutor to question the witness as though he was cross-examining him. Later I granted a similar application in relation to one piece of evidence but refused leave in relation to another. These are my reasons for those decisions.
Mr Weng was the owner of 5 Kennedy St, Guildford, which was also used as a makeshift Buddhist Temple. He was granted bail and was released from custody on 31 January 2017. Whilst he was in custody Mr Weng entrusted the accused, Ying Cheng Luo, to take care of the Temple and his possessions. Mr Weng returned home to find that his premises had been ransacked and says that about $500,000 of his property was missing. The missing property included a number of bottles of first growth Bordeaux (Chateaux Lafite, Latour and Mouton) and several bottles of a well-known, and arguably overpriced, domestic Shiraz. The next day, 1 February 2017, Mr Weng made arrangements for Mr Luo to attend the Temple. Mr Weng also made arrangements for Jun Jia, [1] the intended victim of the crimes alleged by the prosecution, to attend the Temple. Mr Jia brought a friend with him, Qin Wu (also referred to by Mr Weng as "Aqin") who was shot and killed that night.
The prosecution case is that Mr Luo, along with Ian Fan and Jaiyu Liu attended the Temple on 1 February 2017 pursuant to a joint criminal enterprise to kill Mr Jia. That joint criminal enterprise arose out of a contract to kill Mr Jia that was issued by a different man named James as a result of an unpaid drug debt. Each of the accused denies that there was a joint criminal enterprise and they say they attended the Temple at the request of Mr Weng. In the case of Mr Liu, who is alleged to be the shooter, and perhaps others, self-defence may also be raised. Some of the evidence may give rise to a suggestion that the gun went off in the course of a struggle rather than being discharged intentionally.
As an eye witness to events giving rise to one count of murder and another of attempted murder, Mr Weng's account of the events on 1 February 2017 is of critical importance to the issues in the trial.
Mr Weng made a statement to police early on the morning of 2 February 2017 - hours after the incident took place. In that statement he described the events of the night in detail. During examination in chief, Mr Weng described being very "sick" at the time of giving his statement as he was suffering from severe treatment-resistant schizophrenia. Mr Weng gave evidence that he experiences auditory and visual hallucinations and sometimes has difficulty distinguishing between illusion and reality.
[2]
Application to refresh memory
The Prosecutor questioned the witness about whether he had seen a gun:
"Q. What did Qin Wu do when they moved away towards the other room?
A. WITNESS: Qin Wu, when Xiao Jun is walking away with Johnny and then Qin Wu stand up, stand up, follow him and then he saw Da Yu was catching up with Da Yu and Da Yu--
A. INTERPRETER: And then four of them, they were all like a scuffle to each other.
Q. You told us then something about Da Yu and about Qin Wu?
A. WITNESS: Yeah.
Q. Out of those two which one moved first?
A. WITNESS: Xiao Jun moved first and then Da Yu moved.
Q. What about Qin Wu?
A. WITNESS: Qin Wu go stop Da Yu, try to stop Da Yu.
Q. What did--
A. WITNESS: I didn't see properly because at that time someone told, say 'he's got a gun already'.
Q. Who said 'he's got a gun already'?
A. I heard Steven say that, 'he's got guns, he's got guns'.
Q. Did you see a gun?
A. WITNESS: At that time I didn't see it yet.
Q. In the course of the time at Kennedy Street that night, did you see a gun?
A. WITNESS: Yeah only--
A. INTERPRETER: It was a very short period, almost only about like a tenth of a second, and then a gun sound arrived.
Q. Did you see a gun before you heard the gun?
A. WITNESS: I didn't see the gun. I see Da Yu run, run to the other door, the one in kitchen, run to kitchen and he said 'I get a shot'
A. INTERPRETER: I saw Wu Qin went to the other room and he hold his chest and said 'I got shot'.
WEBB: Could I ask the witness to speak a little more slowly when speaking in English, if that is possible. The Crown has raised that.
HIS HONOUR: A couple of things, Mr Weng. The first is, can you try, when you speak English especially, can you try to slow down as much as you can.
WITNESS: Okay, thank you.
HIS HONOUR: Second thing is in light of your earlier answers, you said you heard Steven say 'he's got guns', who was Steven?
WITNESS: Steven is my carer.
HIS HONOUR: Your carer?
WITNESS: My carer.
HIS HONOUR: I understand, thank you.
CROWN PROSECUTOR
Q. Before you saw Qin Wu holding his chest and saying that he had been shot, had you seen the gun?
A. WITNESS: I haven't seen the gun.
A. INTERPRETER: They actually like two groups, Xiao Jun and Luo were scuffle each other and Wu Qin was holding Da Yu's hand. These two were together.
Q. When Wu Qin was holding Da Yu's hand, how far away were those two people from where Mr Luo and Xiao Jun were?
A. INTERPRETER: When I heard a sound, a shooting sound I just hi[d] myself. How can I possibly say how far away they were to each other?
CROWN PROSECUTOR: There is a matter I need to raise in the jury's absence." [2]
The matter the Prosecutor sought to raise was an application for leave under s 32 of the Evidence Act to allow the witness to use his statement in the witness box to refresh his memory. Mr Weng's statement was tendered on the voir dire (Exhibit VDV). The Prosecutor sought leave to refresh the witness's memory by reference to the following paragraphs of his statement:
"19. About 10:15pm John and another male walked in the side door, I said 'who are you, what's your name' as I didn't know this male that was with John. He said 'Dayu'.I have never met Dayu before. John pointed at Xiajun and said 'what you talking about me, come with me to the room.' Xiajun got up and they went to the bedroom immediately to the left as you walk in the front door. Aqin got up to go with them, Dayu said 'sit down none of your business.' Aqin still followed them. As they walked to this bedroom I saw Dayu pull out from the front of his pants a silver gun with a rolling bullet chamber. Xiajun was inside the room and I couldn't see him, John was also in the room but Dayu was in front of a red table which is near the front door, with Aqin.
20. I saw Dayu fire two shots it looked like he changed where he was shooting like once towards Aqin and once towards Xiajun. At the time he was only about 50cm away from Aqin and about 1.5m away from Xiajun."
Senior Counsel for Mr Al Batat submitted that the application was "a little premature". She argued that the witness might give evidence in accordance with the statement if the Prosecutor persisted in asking non-leading questions so that the evidence could emerge in narrative form based on the witness's memory. Apart from Mr Bayliss, who took no position on the application, Ms Rigg's submissions were adopted by the other accused.
Section 32 of the Evidence Act provides:
(1) A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave.
(2) Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account--
(a) whether the witness will be able to recall the fact or opinion adequately without using the document, and
(b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that--
(i) was written or made by the witness when the events recorded in it were fresh in his or her memory, or
(ii) was, at such a time, found by the witness to be accurate.
(3) If a witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion.
(4) The court is, on the request of a party, to give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party.
At the point at which the application was made, it was not clear whether the witness would be able to recall the events without resorting to his statement: s 32(2)(a). While that is not determinative, it is probably the most significant question in determining an application for leave under this section. Accordingly, I accepted the submission that the application was premature and declined to grant leave.
The Prosecutor considered asking questions on the voir dire to see if the s 32 application could be sustained but counsel for the accused objected to that course. [3]
In the presence of the jury, the Prosecutor renewed his attempt to adduce evidence of the events of 1 February 2020 but also asked questions going to the issue of whether leave should be granted under s 32 of the Evidence Act. [4] In spite of the earlier objection to the Prosecutor asking questions in the absence of the jury, counsel for Mr Luo objected in front of the jury to some of the questions in the latter category on the grounds of relevance. [5] Mr Weng gave the following evidence over such an objection:
"Q. At that point when you made the statement, were the events that you were talking about in the statement clearer in your mind than they are now?
A. INTERPRETER: Because at that point of time I was actually very sick, forensically very sick, so my memory also was quite confused. So when I think back now I feel like some of the segment was not very clear, I didn't really remember or record very clearly." [6]
When objection was taken on a fourth occasion, the jury was excused and the Prosecutor explained that he was attempting to establish that the witness's memory was better at the time of making the statement. The parties then agreed that the witness could be asked that kind of question in the absence of the jury. The following exchange then occurred:
"Q. Mr Weng, would it help you to remember the sequence of events from 1 February 2017 if you were allowed now to read your statement?
A. INTERPRETER: I'm not sure because I was very sick at that time." [7]
In light of that response, the Prosecutor abandoned the s 32 application and instead made an application under s 38 of the Evidence Act to cross-examine the witness on his statement.
[3]
The section 38 applications
The Prosecutor submitted that he should be entitled to cross-examine in relation all three matters referred to in s 38(1) of the Evidence Act. That sub-section provides:
(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about--
(a) evidence given by the witness that is unfavourable to the party, or
(b) a matter of 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, or
(c) whether the witness has, at any time, made a prior inconsistent statement.
It did not appear to me that the witness was not making a genuine attempt to answer the questions addressed to him. However, I was satisfied that a number of his answers were inconsistent with the contents of his statement and that, because of the importance of those matters to the prosecution case, his evidence was properly described as unfavourable in that respect: cf Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57 at [44] (Gaudron J). That the evidence was unfavourable was generally accepted by counsel for the accused.
Senior Counsel for Mr Al Batat submitted that there was relevant unfairness for the purpose of s 192(1)(b) of the Evidence Act because of the necessity to explore Mr Weng's psychiatric problems. The material on that issue was extensive and so the extent to which granting leave would result in an undue waste of time was also an issue: s 192(1)(a). Counsel for Mr Luo tendered a report of Dr Furst, a psychiatrist (Exhibit VD16). The report demonstrated that the witness has suffered from a severe psychiatric illness for a long period of time. Counsel submitted that, because of the operation of s 60 of the Evidence Act, it was unfair to allow the evidence of what was said in the statement to be placed before the jury in the form of cross-examination. The other accused took a similar approach.
Having considered matters under s 192 relevant to the grant of leave, I was satisfied the Prosecutor should have leave. I did not accept that there was any relevant unfairness to the accused: s 192(1)(b). The witness's mental health issues were capable of being established and the jury would be in a position to evaluate the credibility of any utterance made by him either at the time of the statement or in Court. I accepted that there would be a lengthening of the trial (s 192(2)(a)) but the importance of the evidence and the nature of the proceedings outweighed that consideration: s 192(2)(c) and (d). In the end, I was dealing with the eye witness to an alleged homicide. Finally, there was power to limit the use of the evidence under s 136 of the Evidence Act if the witness did not adopt the contents of his statement as being true. That is, in spite of s 60 the evidence could have been limited to be used only in an assessment of the witness's credibility. A similar application in relation to another witness was refused but Mr Weng's psychiatric condition created a more powerful case for limitation. That power to limit the use of the evidence had the capacity to reduce, if not eliminate, the kind of unfairness referred to by counsel opposing the grant of leave: cf s 192(2)(e).
Having obtained the grant of leave, the Prosecutor took Mr Weng carefully through his statement. Mr Weng agreed that he had made the statements attributed to him and that those statements were true or, at least, reflected his honest recall and account at the time he made the statement. Towards the end of the evidence in chief the Prosecutor made a further application under s 38. This involved two pieces of evidence contained in the statement but in relation to which the witness did not give evidence.
The first piece of evidence was an observation in the statement that Da Yu (that is, Mr Liu) "fired more bullets into the room Xiao Jun was in, I think four times. It looked like Da Yu was trying to reload the gun". The witness was asked about the relevant time period and gave no evidence consistent with his statement. His evidence was inconsistent and unfavourable. The s 192 considerations clearly militated in favour of the grant of leave and leave was granted on this occasion.
The second area was more controversial and I refused leave to cross-examine on the statement. In his evidence before the jury, Mr Weng was asked about what happened after he heard the gunshot sounds. In particular he was asked whether he heard Mr Luo say anything. The exchange was recorded as follows: [8]
"Q. When Mr Luo was outside that room in the kitchen area, did you hear him say anything?
A. WITNESS: Yes, that's what I heard, he say 'give him another shot'.
A. INTERPRETER: I heard something about 'give another shot', whether it is exactly right or not, I'm not sure now.
Q. Was that the only thing that you can remember him saying?
A. WITNESS: Yeah, that's what I heard, because very noisy at that time, a couple of shots, you know, bang bang bang. And I only paid attention Wu Qin, I want to help him to, you know, get breathe, he can't breathe on the floor. That's why I say 'You guy' I tried to help Wu Qin to get breathe.
A. INTERPRETER: Wu Qin was lying on the ground on the floor, I was really concentrate on trying to help him to get breathe."
The Prosecutor sought to cross-examine on paragraph [21] of his statement where Mr Weng said:
"Xiajun ran out of the room through the living room towards the kitchen into the first room on the right. John and Dayu followed and John called out 'give it another shot, finish him'..."
While the evidence given by the witness was not exactly in accordance with the statement, and while the statement version was more powerful evidence of a specific intention, the version given in evidence was not unfavourable to the prosecution. Further, it was incomplete rather than inconsistent. In the circumstances and if accepted, it provides powerful evidence of intention. Finally, there was nothing in the substance of the evidence, or in Mr Weng's demeanour in giving it, that caused me to conclude that he was not making a genuine attempt to give evidence. When parts of his statement were put to him, Mr Weng accepted both that he said the things recorded in the statement and that they were his best recollection at the time.
Against the possibility I was wrong in my determination that the failure to give evidence of the "finish him" comment was neither unfavourable not inconsistent with the statement, I considered the factors in s 192 of the Evidence Act. My view was that the unfairness in permitting such dramatic evidence to come before the jury by way of cross-examination of a witness with substantial mental health issues outweighed the factors militating in favour of permitting the prosecution to undertake further cross-examination of its own witness. I considered the seriousness of the charges and the importance of the evidence, but the unfairness outweighed those matters. Accordingly, leave to cross-examine on that issue was refused.
[4]
Endnotes
Referred to in Mr Weng's statement as "Xiajun" or "Xiaojun".
Transcript (T), 30/09/20, pp 1191 - 1193.
T, 30/09/2020, p 1196.
T, 30/09/2020, pp 1198-1204.
T, 30/09/2020, pp 1203-1204.
T, 30/09/2020, p 1203.
T, 30/09/2020, p 1207.
T, 30/09/2020, p 1227.
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