On the morning of 25 September 2020, part way through the cross-examination of the witness Martina Sellers (a pseudonym), the Prosecutor made an application for leave to reopen examination in chief and to tender a video of a photographic identification procedure during which Ms Sellers identified the accused Mr Luo as one of the men present at premises in Burwood where, according to the prosecution, guns were supplied by Mr Bayliss to Messrs Lui, Luo and Fan. After short submissions from the parties, I granted leave and allowed the Prosecutor to re-open his evidence in chief. The reasons I gave leave did not coincide with the original reason the Prosecutor advanced for seeking it. These are my reasons for allowing the Prosecutor to re-open the examination in chief.
Ms Sellers in an important witness in the case. She is the only witness expected to give direct evidence of what the prosecution alleges is the supply of guns by Mr Bayliss. The prosecution alleges the guns were used in a murder and attempted murder later that day. The prosecution alleges that Messrs Luo, Liu and Fan were all present inside the apartment when this transaction occurred.
Ms Sellers made an induced statement to police on 29 June 2017 (MFI 24). She provided a detailed account of the events leading up to and including the meeting at Mr Liu's apartment in Burwood on 1 February 2017. She described counting money in the car on the way down from the Central Coast and Mr Bayliss having possession of at least one firearm in the car. She said there were "three Asian males" present inside the apartment at Burwood. On 12 July 2017, Ms Sellers participated in two identification procedures where she identified Mr Luo as being one of the males inside the Burwood apartment. She did not identify Mr Fan although he concedes that he was present inside the apartment. [1]
Ms Sellers commenced giving evidence on 24 September 2020. It is an understatement to say that she was not a very good witness. During the course of examination in chief, the Prosecutor sought and was granted leave under s 32 of the Evidence Act to allow her to revive her memory by reference to her statement to police. Not long afterwards, I granted leave to the Prosecutor to cross-examine her as an unfavourable witness under s 38. [2] By the conclusion of her evidence in chief, she had given some evidence relevant to the meeting, including of the supply and use of drugs, but no evidence of the gun transaction. The Prosecutor did not lead the evidence of the identification procedure. It emerged later that he was under the impression that identification was not in dispute.
Cross-examination on behalf of the accused commenced that afternoon. [3] Senior counsel for Mr Al Batat asked no questions. Counsel for Mr Luo questioned the witness and concluded his cross-examination by the end of the day. It was not until the following day that the Prosecutor made the application "to re-open evidence in chief". [4] It was opposed.
Initially, the Prosecutor's application was not based on a desire to prove Mr Luo's identity as one of the three Asian males present in the flat. As I have said, the Prosecutor believed that was not in dispute. [5] Rather, he submitted that the witness's demeanour and conduct in the course of the identification procedure undermined her evidence (given both in chief and in cross-examination), in that she was so affected by drugs that she had almost no recollection of events either now or at the time of her statement. The Prosecutor acknowledged that this was an issue during the evidence in chief but he said he did not want to disrupt the proceedings and wanted to review the video for himself before seeking to tender it. To establish the usefulness of the evidence in that regard, the Prosecutor proposed to play part of the identification procedure on the voir dire. However, before he did so, things changed.
The Prosecutor put the application as follows:
"CROWN PROSECUTOR: The application is for leave for me to reopen evidence in chief. The reason I'm making the application in that form, is because it's likely to take the form of cross examination and, therefore, it seemed appropriate that if I'm going to do it, that I do it now so that if Mr Webb wants to further cross examine, he can.
It arises out of his cross examination, at least in a sufficient way for me to be entitled, I submit, to do it in re examination. The evidence I want to adduce further to what I've already had through the witness, is of a photographic
identification procedure that she participated in. It is on 12 July, so about two weeks after the statement.
It becomes relevant because it allows the jury to assess her demeanour at a time very close to when she says she was so affected by drugs when she was making the statement that she didn't know what she was saying and didn't know what she was doing. It is not really led specifically as identification evidence, because there is no dispute that it was Mr Luo and Mr Fan and Mr Liu who were the three people in the apartment, but it allows the jury for themselves to form an assessment of what they make of her evidence, that at the time she made the statement on 29 June, she was so affected by drugs while she was in custody, that, I think, the effect of the cross examination a few times was she didn't know what she was saying and didn't know what she was doing.
HIS HONOUR: When you say "the effect of the cross examination", I mean, I haven't been through the transcript but did she not say similar things in the course of the examination in chief?
CROWN PROSECUTOR: She did, your Honour." [6]
I called on counsel for Mr Luo to put his position and the following exchange occurred:
"WEBB: The question, insofar as it concerns identification, which is not conceded--
HIS HONOUR: I beg your pardon?
WEBB: The question concerning identification.
HIS HONOUR: Everyone just looked at you with astonishment. Both of the barristers on either side of you had exactly the reaction I did to the words 'which is not conceded'. What does that mean?
WEBB: What is not conceded is the identification as it concerns three Asian gentleman in the apartment. That is a separate question to who it is in the lift. That is what this submission concerns. Now, in the apartment that has some probative value, concerning whether or not Mr Luo is present within the apartment. It is, no doubt, a matter to which the Crown will have regard that the jury may see pictures of various persons in the lifts, and the jury may come to a view as to what extent that may be probative in terms of time and proximity to that question.
But the question as to the Asian males in the apartment is an entirely separate question and it is, ultimately, an identification question. There is a distinction, I submit, between those two issues.
Now, when the jury are perhaps shown footage of the people in the lift, or the lifts, they will form, within the terms of Mundarra Smith, such views as the tribunal thinks appropriate concerning that and give it such weight as they consider it deserves; but it would be, in my submission, quite wrong to say there is not a separate issue or discrete issue concerning the Asian males in the apartment.
HIS HONOUR: Not for the first time, probably not for the last, I don't understand what you are saying. You are going to have to clarify what you are saying. There are CCTV images or footage of a person in the lift which the prosecution submits is Mr Luo. Is that conceded?
WEBB: In the lift?
HIS HONOUR: In the lift. I will be very, very specific about what I'm asking you and I would invite you to be cautious and careful in answering. Is it conceded the person the prosecution says was Mr Luo depicted in CCTV footage in the elevator/lift was Mr Luo?
WEBB: Yes.
HIS HONOUR: And in relation to the distinction you seem to be drawing, insofar as I understood it, is the three Asian men in the apartment?
WEBB: Yes.
HIS HONOUR: Is it conceded Mr Luo was one of the three Asian men in the apartment?
WEBB: No.
HIS HONOUR: Does Ms Sellers purport to identify Mr Luo as one of the men in the apartment?
WEBB: On her evidence thus far, no.
HIS HONOUR: In the identification procedure, that the prosecutor seeks to play, does she identify Mr Luo, or a photograph of Mr Luo, as being the person in the apartment?
WEBB: Yes.
HIS HONOUR: Then I don't need to see it. That changes the nature of the Crown's application, I would have thought.
CROWN PROSECUTOR: It does, your Honour, yes.
HIS HONOUR: I will hear you further, but at the moment I'm going to let him do it.
WEBB: One of the matters which is relevant to identification within the apartment concerns whether or not, in the statement, such as that has become a part of the evidence, she speaks about the taller Asian gentleman as having no tattoos.
HIS HONOUR: You cross examined on that, I think.
WEBB: I did, your Honour. Then, without really changing the terms of her evidence, the truth of what was in the statement was rejected, but it was accepted that the statement had been given in those terms. The question for Mr Luo, then, is to refashion cross examination partly, on the run, which I don't say is the end of the world.
HIS HONOUR: You can have the weekend, if you need it." [7]
Mr Webb made further submissions, as did the Prosecutor. This included the following:
"HIS HONOUR: In any event, your situation is you did not understand there to be any dispute that Mr Luo was inside the apartment?
CROWN PROSECUTOR: Yes.
HIS HONOUR: If that was your mistake, you are falling on your sword.
CROWN PROSECUTOR: Yes.
HIS HONOUR: Does this witness purport to identify Mr Luo inside the apartment--
CROWN PROSECUTOR: Yes.
HIS HONOUR: --or one of the people hanging around in the lifts?
CROWN PROSECUTOR: No, she says she saw him at the unit block at Burwood, 'What did this person do?' 'He came in and dropped off drugs'.
HIS HONOUR: I will hear from you further, Mr Webb, if you have anything further to say.
WEBB: Just briefly, your Honour. What the argument is perhaps about is that, firstly, this would unfairly, it is submitted, bolster the witness' credibility in respect of her being compos mentis, relatively speaking, within two weeks of the statement. The second matter which is raised is simply to articulate that the drug transaction is not in dispute and won't be in this trial. It is a separate question about whether or not Mr Luo is concerned to deal with what, on the Crown case, are firearms which are exchanged in the apartment." [8]
I was never persuaded that the evidence was admissible, at the stage the Prosecutor sought to tender it, to bolster the credibility of what the witness said in her statement. That is not to say that, now that the evidence is in, the Prosecutor cannot make a submission on that issue and allow the jurors to make of it what they will. However, that issue became a subsidiary one once it was understood that there was a dispute as to identification. In that regard, the probative value of the evidence was very high.
The general power of the Court to control the questioning of witnesses is contained within s 26 of the Evidence Act 1995 (NSW). Section 26(c) provides that the Court may make such orders as it considers just in relation to "the order in which parties may question a witness". It was obviously desirable that, if the Prosecutor was to be permitted to lead this evidence at all, it should be done as soon as possible rather than in re-examination.
The application was for leave to re-open and so the provisions in s 192 of the Evidence Act had to be considered. Those matters militated strongly in favour of granting leave. The evidence was important: s 192(2)(c). While it would take a little time, in the overall scheme of things, allowing the Prosecutor to re-open the evidence in chief would not add unduly to the length of the trial: s 192(2)(a). There is potential unfairness to the parties, particularly Mr Luo. However, that unfairness arises as a result of a misunderstanding on the part of the Prosecutor and was readily cured by allowing Mr Webb the further opportunity to cross-examine: 192(2)(b). There was no unfairness to the witness: s 192(2)(b). The proceedings, obviously, involve serious allegations of criminal misconduct: s 192(2)(d). As to s 192, the Court had the power to, and did, permit further cross-examination. I offered counsel for the accused an adjournment over the weekend if he felt disadvantaged but Mr Webb was able to cross-examine when called upon the same day. [9] There will also be directions about the dangers of identification evidence when I sum up to the jury.
It is for those reasons that I granted leave to the Prosecutor to re-open Ms Sellers' evidence in chief and to tender the video of the identification procedure involving Mr Luo. He did so and, at the request of counsel, also adduced evidence that in a separate procedure Ms Sellers did not identify Mr Fan. [10]
[2]
Endnotes
Mr Fan concedes he was present at the Burwood apartment on 1 February 2017 and pleaded guilty to a charge of drug supply on the original indictment: Pre-trial Transcript, 26/08/20, p 601.
R v Al Batat & Ors (No 20) [2020] NSWSC 1319.
Transcript (T), 24/09/2020, pp 1021 - 1029.
T, 25/09/2020, p 1033.
T, 25/09/2020, p 1034.
T, 25/09/2020, p 1033.
T, 25/09/2020, pp 1036 - 1037.
T, 25/09/2020, p 1039.
T, 25/09/2020, p 1049.
T, 25/09/2020, pp 1046-1048.
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Decision last updated: 25 November 2020