R v Al Batat & Ors (No 28) [2020] NSWSC 1452

R v Al Batat & Ors (No 28) [2020] NSWSC 1452

Ms Chan's voir dire evidence was fundamentally unfavourable to the prosecution case on motive, so it was appropriate to alter the order of examination under s 26 and grant leave under s 38 for the Prosecutor to cross-examine her generally. However, cross-examination about the knife threat, destruction of her phone and shooting of her Willoughby house would introduce a further shooting into the trial and create a real risk that the jury would speculate or infer that some accused were involved, causing prejudice and unfairness that outweighed any probative value on credit. Cross-examination about Ms Chan's knowledge of the murder of Qin Wu was admissible and could support the prosecution...

Jurisdiction
Australia
Judgment Date
13 October 2020
Procedural Posture
Criminal Law / Advance Ruling During Trial Under S 192 a of the Evidence Act 1995 (nsw) on Examination and Cross Examination of Witness Zi Yin (ada) Chan
Outcome
Advance ruling made partly in favour of the Prosecutor: order of cross-examination changed and s 38 leave granted, but cross-examination about the knife threat, phone destruction and Willoughby shooting disallowed; cross-examination about knowledge of Qin Wu's murder allowed.
Legal Topics
['variation of Order of Examination and Cross Examination' 'cross Examination of Own Witness' 'unfavourable Witness' 'prejudicial Evidence' 'admissibility of Evidence' 'severed Count']
['criminal Law' 'evidence'] ['variation of Order of Examination and Cross Examination' 'cross Examination of Own Witness' 'unfavourable Witness' 'prejudicial Evidence' 'admissibility of Evidence' 'severed Count']

Case Brief

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Procedural Posture

Criminal Law / Advance Ruling During Trial Under S 192 a of the Evidence Act 1995 (nsw) on Examination and Cross Examination of Witness Zi Yin (ada) Chan

Legal Issues

  1. 1 ["Whether the order of examination should be changed under s 26 of the Evidence Act 1995 (NSW) to allow the Prosecutor to cross-examine Ms Chan after Mr Webb's examination." 'Whether leave should be granted under s 38 of the Evidence Act 1995 (NSW) for the Prosecutor to cross-examine Ms Chan as an unfavourable witness, including on credibility.' 'Whether the Prosecutor should be permitted to cross-examine Ms Chan about a home invasion involving a knife threat, destruction of her phone, and the shooting of her house at Willoughby.' 'Whether the Prosecutor should be permitted to cross-examine Ms Chan about her knowledge of the murder of Qin Wu.']

Ratio Decidendi

Ms Chan's voir dire evidence was fundamentally unfavourable to the prosecution case on motive, so it was appropriate to alter the order of examination under s 26 and grant leave under s 38 for the Prosecutor to cross-examine her generally. However, cross-examination about the knife threat, destruction of her phone and shooting of her Willoughby house would introduce a further shooting into the trial and create a real risk that the jury would speculate or infer that some accused were involved, causing prejudice and unfairness that outweighed any probative value on credit. Cross-examination about Ms Chan's knowledge of the murder of Qin Wu was admissible and could support the prosecution...

Court Disposition

Advance ruling made partly in favour of the Prosecutor: order of cross-examination changed and s 38 leave granted, but cross-examination about the knife threat, phone destruction and Willoughby shooting disallowed; cross-examination about knowledge of Qin Wu's murder allowed.

Orders

  • ["To allow the Prosecutor to cross-examine Ms Chan last, that is, after Mr Webb's examination, pursuant to s 26 of the Evidence Act 1995 (NSW)." 'To grant leave under s 38 of the Evidence Act to the Prosecutor to cross-examine the witness generally.' 'Cross-examination of Ms Chan about evidence of her being...