R v Al Batat & Ors

Supreme Court of NSW|2020-07-24|Before: Hamill J, Hunt J

Judgment

Six men are about to stand trial charged with a number of offences arising out of series of shooting incidents in January and February 2017. One of the men, Ian Fan, seeks an order that his trial be separated from the co-accused Ying Cheng Luo. Meanwhile, Mr Luo seeks an order that counts 2 and 5 be severed from the indictment. The applications were heard together and I reserved my decision. Count 2 should be severed from the indictment but the application for separate trials and the application for severance of count 5 must be refused. These are my reasons for those conclusions.

Mr Fan's application for a separate trial from Mr Luo

By notice of motion dated 28 May 2020 Mr Fan seeks "an order pursuant to s 21(2)(b) of the Criminal Procedure Act 1986 (NSW) that he be tried separately from Ying Cheng Luo". The ground is that "a joint trial [with Ying Luo] would result in a 'positive injustice'." Mr Fan relies on an affidavit of his solicitor which annexes a selection of documents from the prosecution brief (MFI 2). In response, the Prosecutor tendered three volumes of material from its brief (Ex VD A). A witness (Ada Chan) gave evidence on the voir dire although its relevance to separate trial application is peripheral at best. Both parties filed written submissions (MFIs 3, 4, 5 and 19).
Mr Fan relies on "two limbs" to the application.

The first limb of Mr Fan's application for a separate trial

The first limb concerns the prejudice that would flow from a joint trial with Mr Luo and, in particular, that there is evidence admissible against Mr Luo that implicates Mr Fan but is not admissible against him. This limb of the application relies on the often cited statements of principle from cases such as R v Middis (Supreme Court (NSW), Hunt J, 27 March 1991, unrep) and R v Pham [2004] NSWCCA 190. Particular reliance is placed on an admission made by Mr Luo to his then partner (Leonard Rivers, a pseudonym) that he and Mr Fan accepted a contract to kill Jun Jia. Mr Fan submits that the prejudice inherent in this evidence could not be overcome by the most careful direction and reliance is placed on cases such as R v Iskandar [2011] NSWSC 1192 and R v Roff [2015] NSWSC 1853 as well as the approach taken by the Court of Criminal Appeal in R v Pham.
Mr Fan submits that Mr Luo faces a much stronger prosecution case and that the evidence to be tendered against Mr Luo is likely to make the case against him (Mr Fan) significantly stronger, even though much of that evidence is not admissible against him. Mr Fan points to the fact that the prosecution case against him rests on inferences to be drawn as to his intention and that a jury hearing evidence that Mr Luo told his partner that they had both accepted the contract would find it impossible to obey a direction that the evidence was only admissible against Mr Luo and to disregard that evidence in considering Mr Fan's case.
In R v Roff I set out the relevant principles in the following passage: 39. Section 21(2) of the Criminal Procedure Act 1986 provides: 21(2) If of the opinion: (a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or (b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of the indictment." 40. Sub-section (6) provides that the powers available under the section (which include a power to adjourn and to amend the indictment) "is in addition to and not in derogation of any other power of the court for the same or similar purposes." The power to order separate [trials] of two co-accused is well established. The starting point is that, as a general proposition, people who are alleged to have jointly committed a crime should be tried together. 41. In the case of R v Assim (1966) 2 QB 249, Lord Sachs described the general principle at 261: "As a general rule it is, of course, no more proper to have tried by the same jury several offenders on charges of committing individual offences that have nothing to do with each other than it is to try before the same jury offences committed by the same person that have nothing to do with each other. Where, however, the matters which constitute the individual offences of the several offenders are upon the available evidence so related, whether in time or by other factors, that the interests of justice are best served by their being tried together, then they can properly be the subject of counts in one indictment and can, subject always to the discretion of the court, be tried together." 42. The Court of Criminal Appeal cited this passage with approval in R v Annakin & Ors (1988) 31 A Crim R and observed at 139: "In the ultimate, each case must be dealt with according to the evidence and by reference to the considerations relevant to whether prejudice would be caused so as to prevent the accused being given a fair trial." 43. In Regina v Patsalis & Spathis [No 1] [1999] NSWSC 649; (1997) I07 A Crim R 432 at [6] Kirby J said: "There is a rule, and a proviso to that rule. It is desirable, in the ordinary course, that all persons said to have been concerned with the one crime should be dealt with in the one trial. That rule is subject to the proviso that, if a joint trial would cause positive injustice to an accused, then a separate trial should be ordered (R v Oliver (1984) 57 ALR 543)." 44. The "rule" has particular application in cases involving "cut throat" defences. That is, cases where two (or more) accused are jointly charged but seek to blame each other. This issue caused division in the High Court in the case of Webb v The Queen (1994) 181 CLR 41 but the majority supported the approach of King CJ in the South Australia Court. Toohey J (with whom Mason CJ and McHugh J agreed on this point) said at 88-89 (citations omitted): "King CJ dealt with this ground by pointing out that there are 'strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together. That is particularly so where each seeks to cast the blame on the other'. What King CJ referred to as "strong reasons of principle and policy" were discussed by his Honour in Reg. v. Collie. I respectfully agree with that discussion which emphasises that when accused are charged with committing a crime jointly, prima facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others Reg. v. Demirok. There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused Reg. v. Harbach." 45. Deane J disagreed, saying at 80: "I would, however, wish to stress that it is important that general comments by appellate judges about the desirability of placing the whole picture before the jury should not be misconstrued as an implicit endorsement of the notion that a consideration favouring a joint trial is that it will enable evidence which is inadmissible against a particular accused to be placed before the jury charged with the determination of the guilt or innocence of that accused. Such comments should be understood as referring only to evidence, such as the sworn evidence of one accused, which is admissible against both accused and which might otherwise be unavailable to be led by the Crown. So far as evidence which is not admissible against both accused, such as a confessional or unsworn statement by one of them, is concerned, the fact that it will be placed before the jury charged with determining the guilt or innocence of the other accused should always be seen as a factor militating in favour of separate trials. Nor do I subscribe to the view that the reasons which favour the joint trial of persons who are charged with committing an offence jointly are particularly strong in cases where such persons seek to cast the blame on one another. Particularly where the accused has made a confessional statement and in jurisdictions where an accused is permitted to make an unsworn statement, the dangers of unfair prejudice to one accused from material which is inadmissible against him or her being placed before the jury seem to me to be exacerbated in such cases. Far from the desirability of avoiding "inconsistent verdicts" assuming particular importance, there is a particular danger in such cases that popular notions of the need for consistent verdicts may tend to subvert the requirement of proof beyond reasonable doubt. If, for example, each of two defendants seeks to exculpate himself or herself from guilt of a crime, which both or one of them undoubtedly committed, by casting the entire blame on the other, it is difficult to see any particular relevance of the need for consistent verdicts apart from the superficial and mistaken notion that there would be something "inconsistent" about an acquittal of both. Indeed, where there is a joint trial in such a case, it is desirable that the trial judge stress to the jury that, while the jury may think it apparent that the crime was committed by at least one of the accused, there would be nothing inconsistent in their finding that the guilt of neither had been proved beyond reasonable doubt." 46. The majority and prevailing view has been applied consistently since the decision in Webb v The Queen: see, for example, R v Fernando and Anor [1999] NSWCCA 66. … 47. In R v Middis (Supreme Court (NSW), 27 March 1991, unrep) Hunt J said: "Briefly, the relevant principles are that: 1. where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him, and 2. where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and 3. where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial." 48. In R v Pham [2004] NSWCCA 190 Adams J discussed the term "immeasurably" stating: "Two phrases in this summary need some explanation. In ordinary speech, "immeasurably" usually connotes something of such an enormous degree that it is beyond measurement. It is obvious that it was here not used in this sense. I think that his Honour meant "significant, though incommensurable". The starting point is that the inadmissible, prejudicial material is completely irrelevant. If, when placed on the scales, it would be likely to turn a potential acquittal to a conviction then this would, I think, amount to "positive injustice". Of course, the likelihood cannot be measured: if it is real, as distinct from inconsequential, having regard both to its inherent character and the context of the Crown case, then the trial must necessarily embarrass the affected accused. The question then arises whether the risk that the material might be placed by the jury on the scales is such that the trial miscarried. It should also be noted that Hunt J necessarily assumed that clear and emphatic directions would be given to the jury that the inadmissible material must be ignored and the point made by the summary is that, in the posited circumstances, such directions may well be insufficient to avoid a miscarriage and separate trials should be ordered to prevent such an occurrence. I interpolate that, with unfeigned respect, I am doubtful that the weakness of the applicant's case as compared with that of the co-accused against whom it is proposed to tender the prejudicial evidence can be a relevant consideration. Assume that the case against the co-accused was much weaker than the applicant, even with the prejudicial evidence. If there was a significant risk that the prejudicial evidence could be used by the jury adversely to the applicant and that evidence was itself significantly prejudicial, I am unable to see why the mere fact that it was adduced in a weaker co-offender's case is material. Indeed, the opposite would seem to be the case since, if the co-accused's case was weak, or weaker than the applicant's, the prejudicial evidence might well assume even more importance than otherwise. As it seems to me, with respect, the crucial issue is the potential effect of the inadmissible evidence on the jury's consideration of the applicant's case." 49. Spigelman CJ agreed subject to some additional remarks made by Hulme J. All three Judges were satisfied that the trial had miscarried.
I went on to consider the limitations on the general acceptance that juries are assumed to obey directions: R v Roff at [52]-[62].
The most toxic evidence from Mr Fan's point of view is evidence from Mr Rivers recorded in one of his statements in the following terms: "65. During the afternoon on 11th or 12th January 2017, I was sitting with Johnny [Mr Luo] on a couch in the living room area of his apartment in Burwood when he told me about a contract that he and Michael [Mr Fan] received to murder someone who had stolen three kilograms of ice. When John told me this he did not tell me the name of the specific person the contract was for and over time he didn't mention this person's name and usually just referred to this person as 'the guy' or 'the dog'. I remember it was either the 11th or 12th of January 2017 that this conversation took place because it happened on the same day I hired the car or the day after. During this conversation: Johnny said words to the effect of" "One of the boys stole three kilos of ice from this guy James. James is offering us $50,000 to kill him". I said words to the effect of: "Are you going to do it?" Johnny said words to the effect of: "Yep" I said words to the effect of: "Do you know where he is?" Johnny said words to the effect of: "No we don't know where he is we can't find him"."
At some stage around the time of this conversation, Mr Fan attended the apartment and spoke to Mr Luo in Mandarin. The statement continues, alleging that Mr Luo had previously talked about taking on such jobs to kill people. It then records (at paragraphs 67 - 68): "67 […] I later found out that the 'James' [the man who issued the contract to kill Jia] Johnny was referring to was an associate of Michael's who had the ability to import ice from Hong Kong through a contact of his wife's and that he lived in Regents Park. I know this because Johnny told me during various conversations. 68. About a day or two later, I was sitting on the couch with Johnny in his apartment in Burwood. Michael was also in the apartment at this point in time however he was in his bedroom. When I was sitting on the couch with Johnny I had another conversation about the contract. During this conversation: Johnny said words to the effect of: "We found the guy, he's staying at the girlfriends of one of the boys in gaol, it's in Wolli Creek". I said words to the effect of: "Are you going to do it?" Johnny said words to the effect of: "Yep" I said words to the effect of: "How you going to do it?" Johnny said words to the effect of: "I'm just going to have to wait at his apartment, we're going to ask her to tell us when he leaves" Johnny said words to the effect of: "We can use your car" I said words to the effect of: "No" Johnny said words to the effect of: "We can find number plates off the same sort of car and put them on yours" I said words to the effect of: "No I don't want to do that, it's to risky" Johnny said words to the effect of: "Oh Okay""
The conversations between Mr Luo and Mr Rivers, as recorded in the statements, use plural pronouns ("we" and "us"). There is little doubt that the reference is a reference to Mr Luo and Mr Fan.
Counsel for Mr Luo indicated in argument that the alleged admissions to Mr Rivers are denied. Accordingly, the jury will have to determine whether Mr Rivers is credible and reliable and whether his version of this conversation is to be accepted. In those circumstances, with the jury required to consider closely the version to be provided by Mr Rivers, there would be significant difficulty in the jury obeying a direction that it should disregard the conversation when assessing the case against Mr Fan.
The Prosecutor does not gainsay the difficulties that may arise in a joint trial nor does he concede that it would be impossible to overcome any potential prejudice by a carefully crafted direction. However, the Prosecutor proposes a practical solution and says that the potential prejudice can be sidestepped by leading the evidence from Mr Rivers in such a way that the admission made by Mr Luo does not implicate Mr Fan. In other words, the Prosecutor would lead the evidence to emphasise that Mr Luo admitted that he accepted a contract without conveying that he accepted the contract along with Mr Fan. Where plural pronouns are used in the statements, singular pronouns (he, I and me) could be substituted in the evidence adduced before the jury. He said Mr Rivers can be instructed carefully that he must not make reference to Mr Fan (or Michael, as he knows him) or use plural pronouns. The Prosecutor submits that if this approach is taken, there will be no prejudice to Mr Fan because the jury will not know that the witness alleged in his statement that the admissible admission made by Mr Luo also implicated Mr Fan in the acceptance of the contract to kill Jun Jia.
Counsel for Mr Luo indicated that he does not propose to cross-examine Mr Rivers in such a way as to elicit evidence that Mr Fan was also implicated. His case on this issue is that there was no such conversation and he would not propose to cross-examine on the alternative version contained in the statement; that is, that the admission made by Mr Luo related to both Mr Luo and Mr Fan.
Counsel for Mr Fan submits that the risk that the prejudicial evidence will slip out or be elicited by mistake is very high. He says the solution is "theoretically attractive but is not practical". He notes that the admission is denied, meaning that there will be cross-examination which may take many different forms. In particular, counsel for Mr Luo (Dr Webb) may elicit (unwittingly) evidence in a plural form, capable of causing prejudice to any of the accused, or evidence implicating Mr Fan directly or indirectly. It is submitted that the Court should approach the application in a "realistic and practical way" and that once it is acknowledged that there is a "real possibility" that Mr Rivers will mention "the controversial words" before the jury, the separate trial application should be granted. Counsel relies on the words of s 21 of the Criminal Procedure Act and says the Court would be satisfied that his client "may be prejudiced or embarrassed" by the trials being conducted jointly.
Senior Counsel for Mr Al Batat raised a concern about the use of plural pronouns. If the witness gives evidence of the conversation in that grammatical form, there is a risk that the jury may speculate that the reference to "us" or "we" or "them" includes a reference to Mr Al Batat (or Mr Liu).
The difficulty in determining the present application, and in applying s 21 and the relevant case law to the circumstances of this case, is that it involves a degree of soothsaying. If the Prosecutor intended to lead the evidence or admissions made by Mr Luo in the form contained in the brief, the extent of potential prejudice would be clear and the issue would be whether the prejudice to Mr Fan could be overcome by direction. Similarly, if it could be predicted with certainty that the evidence would be adduced, in chief and cross-examination, so as not to make mention of Mr Fan and his alleged involvement, there would be no issue and the trials would certainly be conducted jointly. That is because Mr Fan and Mr Luo were allegedly involved in a joint criminal enterprise and are jointly charged with counts 5, 6 and 7. There is also a great deal of common evidence and common witnesses.
Based on the assurance of the Prosecutor that the admission evidence against Mr Luo will be led so as to exclude Mr Fan from its content and narrative, and on Mr Webb's advice that Mr Luo's case (denial that the admission was made at all) will not require him to cross-examine so as to elicit the evidence, I am satisfied that the risk of prejudice can be managed and mitigated. I accept there is some risk but that is so in almost every case where co-accused are tried before the same jury. I accept there is some risk that Mr Rivers will say something that creates difficulty but that risk can be addressed if it manifests itself. I also accept that if it became necessary to discharge the jury in respect of Mr Fan, he will suffer a forensic disadvantage because, by that point, he may have already opened his case to the jury. However, I am unable to accept that this possibility is such that it outweighs the desirability that participants in an alleged joint criminal enterprise to murder be tried together.

The second limb of Mr Fan's application for separate trial

The second limb of Mr Fan's application for a separate trial from Mr Luo arises as a result of the inclusion of count 2 on the indictment. Count 2 involves Mr Luo allegedly shooting at the dwelling house of the witness Ada Chan. Mr Fan submits that the inclusion of count 2 on the indictment creates further prejudice because the Prosecution's case is that Mr Fan had custody of the firearm used by Luo at the time of count 2 (30 January 2017), even though the Prosecution does not assert that Mr Fan was involved in that offence. Mr Fan submits that this invites impermissible speculation in relation to his involvement or knowledge of the facts behind count 2 and that this may affect the jury's impartiality in its determination of counts 6 and 7.
The Prosecution submits that evidence relating to count 2 is admissible against Mr Fan as "circumstantial evidence upon which the jury can rely in determining whether he participated in the agreement to murder Jun Jia on 1 February that resulted in the death of Qin Wu"." This is a questionable proposition. Assuming the evidence is relevant and could rationally affect a fact in issue, there is a strong argument that the evidence should be excluded pursuant to s 137 of the Evidence Act 1995 (NSW). This is not a question that I need to resolve finally for the purpose of this application. However, if count 2 were to remain on the indictment it would add force to Mr Fan's application to separate the trials.
Mr Fan concedes that "if count 2 is severed then [the second] limb of the separate trial application falls away". Because of the conclusion I have reached in relation to count 2, it is unnecessary to consider this basis for the separate trial application further.

Conclusion as to separate trials

For those reasons, Mr Fan's application for a separate trial from Mr Luo is refused.

Mr Luo's application for severance of counts 2 and 5 and, in the alternative, for a separate trial

The Deputy Director of Public Prosecutions (DDPP) applied for, and was granted, an exemption pursuant to s 128(2) of the Criminal Procedure Act. The application permitted the inclusion on the indictment of a number of counts that would ordinarily be dealt with in the District Court. In making the application, the DDPP undertook to withdraw the indictment (or relevant counts) and present a new indictment in the District Court in the event that the trial Judge ordered severance of any of the counts.
Mr Luo seeks an order for severance of counts 2 and 5 on the grounds that the inclusion of those counts will create incurable prejudice to his trial on the remaining counts and that those counts have "very limited relevance, if any, to the joint criminal enterprises pertaining to murder and intent to murder." The written submissions filed in support of the application [1] (self-described as "little submissions" [2] ) are brief and somewhat lacking in analysis. Even so, the complaint at the heart of the application is clear. An affidavit of Mr Luo's solicitor was read and this included a number of annexures. The Prosecution opposes the application in comprehensive written submissions and relied on parts of its three volume of pre-trial material (Ex VD A).
Different considerations apply to counts 2 and 5.

Count 5

Because it is almost completely devoid of merit, the application to sever count 5 can be disposed of quickly and first.
Count 5 is an allegation that Mr Luo supplied a prohibited drug (methylamphetamine) to the accused Jacob Bayliss on 1 February 2017. At the time of this drug transaction, Mr Bayliss allegedly supplied Mr Fan, Mr Luo and Mr Liu with two firearms. Counts 3 and 4 allege the supply of those firearms. On the prosecution case, these transactions occurred between 5:00pm and 5:30pm on 1 February 2017. The prosecution case is that those firearms were used in the attempt on Mr Jia's life later that day. The shooting occurred at around 11:00pm on 1 February 2017. It is not alleged that either of those firearms was the murder weapon but the Prosecution will assert that the guns supplied by Mr Bayliss were carried by two of the participants in the course of the incident in which Qin Wu was shot and killed.
Almost all of the evidence to be tendered in support of counts 3 and 4 would be tendered in a separate trial of count 5. While it does not appear to be alleged that this was an exchange of guns for drugs, because Mr Bayliss allegedly paid $8,000 for two ounces of methylamphetamine, the transactions occurred at the same time, in the same place and involved the same participants. It is likely that the evidence of the entire transaction would be led in any separate trial of count 5, at least to place the transaction in its true context. The supply of the guns is plainly admissible in the prosecution case in relation to the murder (count 6) and attempted murder (count 7). There would be an unacceptable degree of artifice in attempting to adduce evidence of counts 3 and 4 without leading the small amount of additional evidence capable of supporting count 5.
The application is said to be based on s 21(2)(b) of the Criminal Procedure Act although s 21(2)(a) may also have relevance. The sub-section provides as follows: (2) If of the opinion-- (a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or (b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of the indictment.
In the context of the evidence to be adduced in this case, I am unable to discern any great prejudice in the evidence that Mr Luo (and others) supplied Mr Bayliss with drugs. The Prosecution will lead evidence that the entire sequence of offences had, at its heart, a drug deal gone wrong and there will be evidence of Mr Luo's connection with a number of people allegedly involved in a fairly large scale drug supply. A jury is unlikely to reason that a person is more likely to become involved in a contract killing because they are involved in the drug trade. Such a process of impermissible reasoning can readily be cured by direction. Any residual prejudice can also be subject to firm warnings that the jury ought not to reason that Mr Luo is more likely to be guilty of counts 1, 2, 6 or 7 because he supplied (or allegedly supplied) two ounces of "Ice" to Mr Bayliss.
I can see no other reason why it is desirable that Mr Luo be tried separately with respect to count 5.
The severance of count 5 would create an artificial separation of two transactions that were essentially part of the same deal. It would involve repetition of a large body of evidence in separate trial proceedings.
The application for severance of count 5 will be refused.

Count 2

Count 2 raises different considerations. Count 2 is an allegation against Mr Luo of shooting at a house in Willoughby occupied by Zi Yin Chan (Ada) and her partner, Jason Goh. The prosecution alleges that the motive for this shooting was the fact that Ada Chan brokered or, at least, was involved in the transaction that led to the supply of drugs to Jun Jia and that she may have owed money in a separate (but connected) drug deal. It was Mr Jia's failure to pay for these drugs that led to the contract being taken out on his life and the attempts to kill him on 23 January and 1 February 2017. In this respect, the shooting at the Willoughby house is connected to the factual matrix in which the two attempted murders of Mr Jia and the murder of Mr Wu were allegedly committed.
Assuming the correctness of the decision in Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62, [3] there is little doubt that count 2 can be determined in the same proceedings as the other counts: see s 29 Criminal Procedure Act. Further, there is a good deal of evidence that would have to be adduced more than once if count 2 is severed from the current indictment and subject of a separate trial. In particular, a number of witnesses would need to be called in separate proceedings. This would include (amongst others) Wai Li, Ada Chan, Jason Goh and Leonard Rivers. It is particularly undesirable that Wai Li and Leonard Rivers, who are co-operating witnesses, be required to give evidence on multiple occasions. That is an important factor to take into account under s 21(2) of the Criminal Procedure Act but it is not determinative.
In its initial written submissions at paragraph 57, the Prosecution said: "Whether the Crown can establish the asserted connection between count 2 and the other counts on the indictment will depend on the evidence of [Ada] Chan."
Ms Chan gave evidence on the voir dire. As a result of this evidence, which was almost completely unhelpful to the Prosecution, the Prosecutor retreated from the substance of paragraph 57. I accept that Ms Chan's failure to give evidence supportive of the prosecution case theory is not fatal to the Prosecutor's position in relation to joinder or severance of count 2. However, there is other evidence that supports the prosecution case linking count 2 to the remaining counts on the indictment. For example, there is evidence in Wai Li's statement as to what Ms Chan told her of the shooting and incidents leading up to that shooting. Ms Chan's evidence was inconsistent with the evidence contained in Wai Li's statement and also other evidence in the case. Ms Chan asserted complete bewilderment as to the motive for somebody to shoot at her house. In spite of her evidence, I will proceed on the basis that there is evidence available to the Prosecution that is capable of establishing some connection between the events comprising count 2 and the remaining counts on the indictment.
Even so, the connection between count 2 and the remaining counts is not critical to the narrative concerning the drug deal that led to the attempts on Mr Jia's life and the alleged murder of Mr Wu. In some respects the links are coincidental rather than substantive. There is a commonality of some of the participants in the drug deals involved, but the transactions are separate and distinct. It is also the case that Mr Luo was involved (on the prosecution case) in all of the shootings. However, there is no allegation that he was acting in concert with his co-accused in shooting at Ms Chan's house. This shooting was not the subject of the alleged "contract" which, according to Leonard Rivers, Mr Luo admitted to accepting. The joint criminal enterprise or series of enterprises, alleged in counts 1, 3, 4, 5, 6, 7, 8 and 9 did not encompass an agreement to shoot at the house in Willoughby or to instil fear in Ms Chan. Mr Luo is not charged jointly with any of the co-accused in relation to the shooting of Ms Chan's house.
Otherwise, the connection is a temporal one. That is, the allegation in count 2 occurred at a time between the first attempt to shoot Mr Jia and the second attempt. However, exclusion of the circumstances of the shooting at the house at Willoughby does no violence to the narrative of events involving Mr Jia, his failure to pay the drug debt, the contract to kill him and the attempts on his life. The shooting at Willoughby is not critical evidence to understand the narrative, to place the events in their true context, or to understand the relationship between relevant players.
Further, there is a real risk of prejudice to both Mr Luo and Mr Fan if count 2 remains on the indictment and its facts are determined by the same jury that is called upon to decide the remaining counts.
In Mr Luo's case, there is a real risk that a jury that hears evidence that Mr Luo was involved in the shooting of a dwelling house may reason impermissibly that he is therefore the kind of person more likely to have been involved in the plot to murder Mr Jia and the inadvertent killing of Mr Wu. That is, the jury may adopt a kind of tendency or propensity reasoning in circumstances where the prosecution does not seek to lead the evidence pursuant to s 97 of the Evidence Act. While directions could be fashioned to attempt to alleviate this kind of prejudice, I am greatly concerned that such a direction would be difficult for a lay jury to obey. I accept, as I must, that jurors generally obey the directions of a trial Judge: Gilbert v R (2000) 201 CLR 414; [2000] HCA 15 at [13] (Gleeson CJ and Gummow J), [31] (McHugh J). However, the circumstances of this case are such that there is an unacceptable risk that the jury will be overwhelmed by the number of shooting incidents in which Mr Luo was allegedly involved and will not bring an impartial and unprejudiced mind to bear on the resolution of the factual disputes arising under the counts alleging attempted murder and murder.
The potential prejudice to Mr Fan is more subtle and, as a result, more insidious. The Prosecution does not assert that Mr Fan was involved in the shooting of the house in Willoughby that constitutes count 2. However, there is evidence admissible against Mr Luo in respect of count 2 that has the capacity to cause a jury to believe he was involved in that incident. There is a substantial amount of evidence proving the close association between Mr Luo and Mr Fan including their involvement in serious criminal activity.
The prosecution case statement asserts that Mr Luo received a "WeChat" message from a person called "Maggie" earlier in the night before the shooting. Upon receiving that message, Mr Luo went into Mr Fan's bedroom and emerged with an "enviro-style shopping bag." There is evidence that Mr Fan was in possession of a firearm at that stage and, not long after he emerged from Mr Fan's bedroom with the enviro-style shopping bag, Mr Luo was seen in possession of a .22 calibre gun. After he left the premises, Mr Luo followed Ms Chan and Mr Goh to the premises at Willoughby where the shooting occurred.
There is also a listening device recording between Mr Luo and a David Boikov on 25 February 2017. [4] In that conversation, which post-dates the allegation in count 2, Mr Luo speaks about a "drive by" and about Ms Chan's involvement in the drug transactions. Mr Luo told Boikov that "Ada" (Ms Chan) "owed Michael (Mr Fan) six grand" and that Ada alleged that Mr Luo owed her the same amount. He said "Michael called me and said, ah, the guy's here trying to collect the debt, so is Ada". This evidence could easily be misused by the jury in the case against Mr Fan. It is capable of giving rise to an inference that Mr Fan had a motive to cause Ms Chan harm, or to attempt to intimidate her, or to act in retaliation for the earlier drug debt or the visit to his home to collect the debt alleged owed by Mr Luo.
Attempting to direct a jury not to misuse this evidence, or to disregard it entirely in Mr Fan's case, is more likely to increase the potential for prejudice than diminish it. Any direction will highlight the evidence capable of establishing a connection between Mr Fan and Mr Luo's alleged involvement in the shooting of the house in Willoughby.

Conclusion as to the severance application

I have concluded that both Mr Luo and Mr Fan will be prejudiced or embarrassed in their defence of the remaining counts as a result of the inclusion of count 2 on the indictment. I am also satisfied that it is desirable that Mr Luo be tried separately in respect of count 2.
Accordingly, I will make an order that count 2 be severed from the current indictment. I note the Director's undertaking to withdraw the indictment (in its current form) and to present a fresh indictment (relevantly in relation to count 2) in the District Court.

Alternative application by Mr Luo for a separate trial

The notice of motion filed by Mr Luo included an alternative prayer for a separate trial. However, no additional submissions were made in relation to this application and, given the severance of count 2, the only real basis for a separate trial (from the co-accused) falls away.
However, one matter that might have been relevant to a separate trial application by Mr Luo should be noted. At the conclusion of the argument on severance of counts 2 and 5, Senior Counsel for Mr Al Batat reiterated that part of her case would be that Mr Al Batat was in fear of Mr Luo and that this fear motivated some of his actions. [5] In particular, Mr Al Batat will conduct a self-defence case in respect of the allegation that he hindered the police investigation in relation to the murder charge against Mr Luo (count 8).
This was foreshadowed in Mr Al Batat's notice of defence case which included: "It will be argued to be implausible that serious, violent, organised criminals such as a number of the co-accused are, would depend on an inexperienced, young drug runner to undertake a contract killing. His nonviolence as a person may be raised. The violence of at least the accused Luo and others of Luo's associates will also be relied upon in connection with the accused's incomplete truthfulness with police on 2 February 2017." [6]
Mr Al Batat's notice also foreshadowed the possibility of adducing tendency evidence against the other accused and leading evidence of their (and in particular Mr Luo's) previous acts of violence. It was stated: "The violence of these men, particularly Mr Luo, is of importance to the defence of the accused Al Batat in at least two ways …"
In the course of the pre-trial hearing, Mr Al Batat's lawyers have also gained access to court papers relating to Mr Luo.
Mr Al Batat's defence case statement was included as an annexure to the affidavit of Mr Luo's solicitor. However, no submissions - written or oral - were directed to the issue and no application was made for a separate trial based on the possible prejudice arising from the conduct of Mr Al Batat's case. After Ms Rigg SC raised the matter there was a discussion with counsel for Mr Luo which, in an opaque and discombobulating way, confirmed this: "HIS HONOUR: Just so I understand, because I don't want to reserve on a complete misunderstanding of the submissions you're making. Are you saying that the alternative prayer in page 2 of the notice of motion, a separate trial for Mr Luo -- WEBB: Yes. HIS HONOUR: -- is based on the proposed conduct of the case on behalf of Mr Al Batat as raised by Senior Counsel for Mr Al Batat. WEBB: No. So severance is sought in respect of 2 and 5. What I was endeavouring to convey in the little submissions, was that the question of whether or not learned Senior Counsel seeks to pick up the cudgels in such a way as to attach certain inferences to Mr Luo, that that's not a separate trial matter, in my submission, maybe I got that wrong, I usually do, that is an evidentiary matter within the trial proper or whenever your Honour is disposed to hear it, as to whether or not, on the evidence which is available, it is able to be raised. Because who knows what will happen in the trial. But presently, something to which I have some regard, but I'm very cautious, there isn't enough in the record of interview, being the second ERISP of Mr Al Batat to raise, I would submit at this stage, it is too early really. Edwards maybe, but there certainly would be arguments about 135 and whether or not it would be unfairly prejudicial to another party, in this case being Mr Luo. That has the obvious overlay of complexity between the very wide purview of forensic judgment in the conduct of the case." [7]
I attempted to gain some understanding of these submissions and clarity as to the position taken by Mr Luo. The exchange continued: "HIS HONOUR: I'm again going to ask you to interpret into language so that I understand what you mean. I'm just looking at the realtime transcript and this is where I became puzzled: "Whether or not learned Senior Counsel seeks to pick up the cudgels in such a way as to attach certain inferences to Mr Luo". WEBB: Yes. So once the trial is under way or if it gets to that point. HIS HONOUR: I just don't understand that. WEBB: Whether or not Ms Rigg wishes to attack Mr Luo HIS HONOUR: She is, she said she will. WEBB: Correct, but that is not necessarily a separate trial issue. That is what I am respectfully submitting. That is just water down the pit. That is all that is." [8]
Mr Webb went on to confirm that there would be objection taken to some of the evidence, although he was unclear exactly what evidence would be led by Mr Al Batat. The submission concluded: "HIS HONOUR: I think I understand. Notwithstanding that I think I understand, I'm going to ask again, I do not have to resolve a separate trial application and you do not apply for a separate trial based on the anticipated conduct of Mr Al Batat's defence, including the suggestion that he was fearful of your client and evidence that might be adduced to substantiate the holding of that fear. WEBB: As your Honour would surmise, I'm not in a position, nor perhaps should I be, to determine that question, nor would your Honour be disposed to guess at it. Mr Al Batat's defence is Mr Al Batat's defence. So, where things are presently, I don't know what that attack, if it is made, might comprise. That's where that is. I don't wish to make things up or imagine things that some other counsel might do. It depends and, very fairly, Senior Counsel has indicated that this is something which requires a little more thought as more material comes to hand. That is what I understood Ms Rigg to be telling your Honour about, placing you on notice about it. But I'm on notice only to the extent that I'm apprised of what presently is available. I can't pre-empt another counsel's forensic decisions, except as a term of art and that is not a separate trial matter at this stage."
As things stand, there is no independent application by Mr Luo for a separate trial. The prayer for a separate trial was included in Mr Luo's notice of motion as an alternative remedy to the prejudice said to be occasioned by the inclusion of counts 2 and 5 on the indictment. The primary and appropriate remedy sought was severance of the counts. Given the severance of count 2, and my conclusions in relation to count 5, there is no basis to order that Mr Luo be tried separately from the co-accused.

Orders

For the foregoing reasons, I make the following orders: 1. The application by Ian Fan for a separate trial from Ying Cheng Luo is refused. 2. The application by Ying Cheng Luo for severance of count 5 is refused. 3. Count 2 is to be severed from the indictment. 4. The alternative application by Ying Cheng Luo for a separate trial is refused.

Endnotes

MFI 8 and 9.
Tcpt 23 July 2020, p 203(50)
Special leave was refused by the High Court on 9 December 2011: El Zayet v The Queen; Aouad v The Queen; Darwiche v The Queen; Osman v The Queen [2011] HCATrans 342.
See Annexure K to the affidavit of Mr Fan's solicitor (MFI 2); Annexure D to the affidavit of Mr Luo's soclitor (MFI 7).
Tcpt 23 July 2020, pp 201-202.
Annexure E to the affidavit of Mr Luo's solicitor (MFI 7).
Tcpt 23 July 2020, pp 204-205.
Tcpt 23 July 2020, p 205.

Amendments 14 October 2020 - Typographical error in [40]. 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

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