Last Thursday afternoon, on 1 October 2020, towards the end of the re-examination of Mr Jian Feng Weng, the Prosecutor sought to introduce evidence of two identification procedures undertaken by the witness. Almost all of the six accused men opposed this course. The jury was excused for the remainder of the day and submissions continued on the morning of Friday, 2 October 2020. I ruled the evidence was not admissible in re-examination and the trial continued. I have since concluded the evidence is not admissible at all and may not be led through police witnesses to be called later in the trial. These are my reasons for those conclusions.
Mr Weng was the owner of the property where the shooting of 1 February 2017 occurred. He was an eye witness to some of the events that give rise to the charges of murder and attempted murder. Significant portions of his evidence in chief were adduced by the Prosecutor in the form of leading questions upon the grant of leave under s 38 of the Evidence Act 1995 (NSW). [1] Two such pieces of evidence were that:
1. Mr Weng saw a person the prosecution says was Mr Liu ("Da Yu") pull out a gun and fire two shots.
2. A person the prosecution says was Mr Luo ("John" or "Johnny") entered the premises on a second occasion and was carrying a gun.
The Prosecutor elicited the relevant evidence against Mr Liu as follows:
"Q. You say this in your statement:
'As they walked to this bedroom, I saw Da Yu pull out from the front of his pants a silver gun with a rolling bullet chamber.'
That is what is in your statement, isn't it?
A. WITNESS: Yes.
Q. That's the truth, you saw Da Yu pull out from the front of his pants‑‑
A. WITNESS: Yeah.
Q. '‑‑a silver gun with a rolling bullet chamber'?
A. WITNESS: Yes." [2]
A short time later he gave the following evidence:
"Q. In your statement you say 'I saw Da Yu fire two shots', that was the truth, wasn't it, you saw him do that?
A. WITNESS: Yeah." [3]
In relation to Mr Luo, the following evidence is relevant to the ruling prohibiting the proposed re-examination:
"Q. … Mr Weng, you have just told us that Mr Luo returned, that there were other people with him but you couldn't see who they were. Can you please have a look at paragraph 23 of your statement on page 5. Do you see there that you are talking about Trong or Steven calling the police?
A. WITNESS: Yes.
Q. And you say 'about 5 minutes later John and Da Yu returned'?
A. WITNESS: Yeah.
Q. That was true, wasn't it, that you recognised Da Yu as one of the people who returned?
A. WITNESS: Yeah on that time I don't consider
A. INTERPRETER: When I made the statement with the police I said what I said was 'John and Da Yu left', I didn't say they came back.
Q. You agree that that's what's written in your statement, 'John and Da Yu returned'?
A. WITNESS: Yes.
Q. That was the truth, wasn't it, that Da Yu came back?
A. WITNESS: I'm not sure a hundred per cent.
A. INTERPRETER: No, I'm not sure because it was very dark, I couldn't see.
Q. You go on in paragraph 23 to say this:
'There was a third male with them now. All three had handguns, two shotguns and one long gun.'
Do you see that there in your statement?
N CARROLL: Can I object. I don't know that that was read out correctly, I might be wrong. Could I speak to the Crown?
CROWN PROSECUTOR: Sorry, I am grateful to my friend. I read it as all three had handguns and I read that incorrectly.
Q. Sir, I will read it again:
'There was a third male with them now. All three had guns, two shotguns and one long gun.'
Do you see that's what's in your statement at paragraph 23?
A. INTERPRETER: I really can't remember the content in that paragraph.
Q. Sir, what you told the police in that paragraph was the truth, wasn't it?
A. WITNESS: Yes.
QUILTER: I object to the question. There are multiple propositions in the question.
HIS HONOUR: There is.
CROWN PROSECUTOR
Q. It was true that there were three men, wasn't it?
A. INTERPRETER: I'm not sure if there was three or more than three.
Q. It was true that three people had guns, wasn't it?
A. INTERPRETER: I'm not sure whether there were all three having guns. All I can see at that time was from the reflection of the glass door.
Q. It was true that the three guns that the men had were two shotguns and one long gun, wasn't it?
A. INTERPRETER: I'm not sure." [4]
Later the witness said of Mr Luo:
"Q. In paragraph 24 you say this:
'The first time John did not have a gun, but when they came back he had a shotgun, I think black colour.'
That's the truth, isn't it, that when John came back he had a shotgun and it was black?
A. WITNESS: Yeah, sure.
A. INTERPRETER: Yes." [5]
Mr Weng was cross-examined by counsel for Mr Luo about his mental health. It was established that Mr Weng has severe, chronic, treatment-resistant schizophrenia. He has visual and auditory hallucinations. He becomes paranoid. There was deal of cross-examination on the issue although, compared to the amount of material available to counsel (I was told there is over 800 pages of psychiatric reports and notes), the cross-examination was restrained and relatively confined.
In relation to the evidence he gave against Mr Luo referred to in the preceding paragraphs, the following concession was drawn from him:
"Q. Sir, what I'm raising with you is that you are not able to say that Mr Luo had a gun at any time when in your house?
A. INTERPRETER: Does that also include the second time he came back to the house?
Q. That's right, at any time?
A. INTERPRETER: But the second time when he came back he had a gun.
Q. What I'm raising with you, sir, is you are not able to say whether that was real or perhaps something based upon your hallucinations and illness at that time?
A. INTERPRETER: It is possible.
Q. Sir, in circumstances of a lot of stress, that night did your illness and its symptoms become worse or increase in relation to hallucinations and things of that kind?
A. INTERPRETER: Yes." [6]
Mr Weng made similar concessions in relation to other important aspects of his evidence.
Counsel for Mr Liu also cross-examined Mr Weng to considerable effect. It was established that there was, at least, a real doubt as to whether Mr Weng could possibly have seen what he claimed to see Mr Liu do:
"Q. Sir, we can see from that view, we can certainly see into the lounge room and we see the coffee table, do you agree?
A. INTERPRETER: Yes.
Q. But we cannot see the couch that you were sitting on, is that right?
A. INTERPRETER: That's right.
Q. You said that after Mr Wu approached Da Yu, that Mr Wu, you could see Mr Wu, but could you see his back or his side, is that right?
A. INTERPRETER: The back side.
Q. But you could not see, could you, from where you were sitting, clearly what was happening between Mr Wu and Da Yu, is that correct?
A. INTERPRETER: Yes.
Q. Looking at the view that we see here, you would agree that from where you were sitting you would not be able to see even the entry and exit to the room, would you agree with that?
A. INTERPRETER: That's right, I can't see.
Q. I'm going to suggest to you, and you can agree or disagree with this, but from where you were sitting at the time when you heard the one or two gunshots, that you would not have been able to see what, if anything, was in Da Yu's hand?
A. INTERPRETER: That's correct." [7]
The evidence that the Prosecutor sought to adduce in re-examination would have been admissible had it been elicited in chief. In each instance, it was evidence that the witness participated in an identification procedure in May 2017 and said that he could identify Mr Luo and Mr Liu. Mr Weng also told police what he claimed he saw and heard those accused men do. The Prosecutor summarised the critical parts of the evidence as follows:
"What Mr Weng says in the ID procedure in relation to Mr Luo, having identified the photograph, he says 'he is in there holding a gun'. In the course of an identification procedure in relation to Mr Liu, he says 'carried a gun and shooting people'." [8]
Because identification is not in issue, the Prosecutor elected not to adduce the evidence of the things Mr Weng said in the course of the identification procedure. He now contends the evidence is admissible to re-establish Mr Weng's credibility and arises from matters raised in the cross-examination.
Section 39 of the Evidence Act provides "limits on re-examination":
On re-examination--
(a) a witness may be questioned about matters arising out of evidence given by the witness in cross-examination, and
(b) other questions may not be put to the witness unless the court gives leave.
It is doubtful that questioning about the identification procedure amounts to a matter "arising out of evidence given by the witness in cross-examination". Both Mr Liu and Mr Luo challenged the witness's evidence, and (contrary to some of the submissions) a substantial assault was made on Mr Weng's credibility. I do not accept Mr Luo's submission that, because it was not suggested that Mr Weng was dishonest (as he genuinely believes the hallucinations or illusions are real), there was no attack on his credibility. To the contrary, the attack on Mr Weng's credibility was sustained and effective. The cross-examination focussed on the witness's psychiatric illness and sought to establish that his evidence may have been the result of visual and audio hallucinations.
The Prosecutor sought to tender video evidence of two identification procedures conducted in May 2017 to enable the jury to make its own assessment of the witness. This was put in this way:
"CROWN PROSECUTOR: That the challenge to his credibility is the possibility that the evidence that he gave about people having guns is, in Mr Webb's case, the result of a hallucination and, therefore, not something the jury would rely on. The jury's ability to observe this process is capable of assisting the jury in determining whether they accept beyond reasonable doubt his evidence that he did see these people with guns, or whether they retain a residual doubt, based on the cross examination, to the effect of an honest memory, but one that is the subject of hallucination." [9]
The Prosecutor also submitted:
"He has made those concessions, that's the evidence, and it is unchallenged evidence, that the symptoms of his mental illness involve auditory and visual hallucinations.
The issue in this trial is whether that's something that the jury consider - the significance that the jury considers that history of his mental illness has on their assessment of his evidence. That's what seeing this video will assist the jury in doing." [10]
The Prosecutor played relevant parts of the procedure on the voir dire. [11] In these parts the witness says (in effect) that he saw Mr Liu discharge a firearm and that Mr Luo entered the premises a second time and was then armed. That is, Mr Weng made statements or assertions that were generally consistent with what he said in his original police statement and adopted in evidence under cross-examination by the Prosecutor.
The evidence the prosecution sought to tender is not capable of re-establishing the witness's credibility. The jury is aware that the witness first made these assertions in his statement made the day after the incident. Establishing that he said, more or less, the same thing three months later during the identification procedure in no rational way answers the attack on credibility that has been made. Insofar as it was submitted that the jury may make its own assessment relevant to an evaluation of psychiatric issues, the jury is not equipped to do that: cf R v Denton [2019] NSWCCA 81 including at [29]-[31].
Further, the Prosecution was aware of Mr Weng's psychiatric illness when the witness was called. It was predictable that there would be a substantial attack on his credibility and that a large part of that attack would be based around his chronic psychiatric illness and reliance on anti-psychotic medication. If the evidence of Mr Weng's demeanour in the identification process was admissible to re-establish credibility in relation to his psychiatric illness (or otherwise) it ought to have been adduced during the evidence in chief. Section 108 of the Evidence Act clearly contemplates this by use of "it is or will be suggested" that the evidence "has been fabricated or reconstructed (whether deliberately or otherwise)". While that section relates to prior consistent statements, both identification procedures include such statements.
A similar issue arose in the course of the evidence of Martina Sellers. The Prosecutor sought to re-open the evidence in chief to tender an identification video part way through the defendants' cross-examination. The basis of the tender was to re-establish the witness's credibility. The evidence was permitted because it emerged that there was a misunderstanding as to whether there was any concession as to identification. [12] I expressed misgivings as to whether the evidence was admissible to re-establish credibility. [13] The Prosecutor was permitted to re-open the evidence in chief in order to tender Ms Sellers' evidence of identification. I raise this here as the earlier incident must have alerted the Prosecutor to the possibility that he may seek to rely on the present identification video as some kind of credibility evidence.
To summarise, I did not allow the evidence to be adduced in the re-examination of Mr Weng because:
1. The evidence ought to have been elicited in the course of the evidence in chief, if it was admissible at all.
2. The evidence did not have the capacity to rationally to re-establish Mr Weng's credibility because:
1. The jury was aware that the witness had previously made the assertions relied on by the Prosecution many weeks before he repeated them in the identification process.
2. The jury was not equipped to make any informed assessment of the witness's demeanour in the video. The video depicts the witness with his back or side to the camera. The jury would not be able to make any rational assessment of whether he was suffering from any acute mental illness at the time. It is a matter - if it is to be, or could be, proved - that would require expert evidence.
I also formed the view that the evidence was not admissible under s 108 of the Evidence Act due to the operation of ss 135 and 137 in the particular circumstances of the case. To understand that conclusion, it is necessary to set out some of the relevant sections of the Evidence Act. Section 101A defines credibility evidence:
Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that--
(a) is relevant only because it affects the assessment of the credibility of the witness or person, or
(b) is relevant--
(i) because it affects the assessment of the credibility of the witness or person, and
(ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6.
Section 102 contains the "credibility rule" and provides that credibility evidence about a witness is not admissible. The sections that follow provide exceptions to the rule. Section 108 relevantly provides:
108 Exception: Re-establishing Credibility
(1) The credibility rule does not apply to evidence adduced in re-examination of a witness.
(3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if--
(a) evidence of a prior inconsistent statement of the witness has been admitted, or
(b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion,
and the court gives leave to adduce the evidence of the prior consistent statement.
There was an argument about whether s 108(3)(b) was engaged at all. The controversy arose as a result of the legislature's choice of language. Counsel for Mr Al Batat referred to a number of cases that dealt with the meaning of word "fabrication" in the context of the common law principle of res gestae and s 65(2)(b) (as opposed to s 108(3)) of the Evidence Act. [14] The word "fabricated" generally implies some deliberate process of making or manufacturing. However, the qualifier in parentheses "(deliberately or otherwise)" means that the words that precede it ("fabricated or re-constructed") take on a different complexion. I was satisfied, without overwhelming confidence, that a hallucination or illusion seen or heard by a witness with schizophrenia was caught by the breadth of the provision and the inclusion of "non-deliberate" fabrications or reconstructions. Accordingly, the evidence was admissible subject to the discretions in ss 135 and 137.
The probative value of the evidence the Prosecutor sought to introduce to answer the particular credibility attack was slight. The fact that the witness made a consistent statement in May 2017 added little to the narrative that included him making such a statement the day after the shooting on 2 February 2017. The extent to which the jury's own assessment of Mr Feng's demeanour could rationally impact on an assessment of his credibility was minimal, if it existed at all. At the same time, the danger of unfair prejudice and the danger that the evidence might result in an undue waste of time was significant. The danger of unfair prejudice lay in the possibility that the jury might misuse the evidence by making an assessment it was not qualified to make in the absence of expert psychiatric evidence. The danger that the evidence would result in undue waste of time arose due to the need for the parties to explore further the psychiatric evidence and possibly call evidence relevant to that issue and Mr Weng's demeanour at the time of the interview. [15]
In the circumstances I was persuaded that the evidence should be excluded under s 135 because the probative value was substantially outweighed by the danger the evidence might result in an undue waste of time. I was also satisfied that the probative value of the evidence was outweighed by the danger of unfair prejudice to the defendants. Accordingly, s 137 mandated the exclusion of the evidence.
Putting aside ss 135 and 137, I would also have refused leave under s 108(3) of the Evidence Act based on the relevant considerations in s 192 including:
1. Admission of the evidence would have added unduly to the length of the trial. This was because it would have been necessary to permit further cross-examination on the extensive psychiatric material and may have resulted in one or more parties calling expert opinion evidence as to the demeanour of the witness at the time of the identification procedures.
2. There was a danger of unfairness to the parties which I have explained above in considering s 137.
3. While Mr Weng's evidence is important, the evidence of his demeanour during the identification process was peripheral to the real issues in the trial. It is not important. It is a sideshow on a sideshow.
4. Those three factors outweigh the fact that this a trial of most serious offences and that the prosecution should therefore be allowed some flexibility in the presentation of its case.
It is for those reasons that I did not permit the Prosecutor to adduce the evidence in re-examination, and have determined that the evidence is inadmissible in any event.
[2]
Endnotes
See R v Al Batat and Ors (No 21) [2020] NSWSC 1350.
Transcript ("T"), 30/09/2020, p 1221.
T, 30/09/2020, p 1222.
T, 30/09/2020, pp 1241-1242.
T, 30/09/2020, p 1242.
T, 30/09/2020, p 1284.
T, 01/10/2020, pp 1296-1297.
T, 01/10/2020, p 1306.
T, 01/10/2020, p 1317.
T, 01/10/2020, p 1317.
Exhibit VDW.
T, 25/09/2020, pp 1036-1039.
T, 25/09/2020, p 1038.
Ratten v The Queen [1972] AC 378; R v Polkinghorne (1999) 108 A Crim R 189; [1999] NSWSC 704; R v Kuzmanovic [2005] NSWSC 771.
T, 01/10/20, pp 1311-1312.
[3]
Amendments
08 October 2020 - Case citation added.
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Decision last updated: 25 November 2020