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Supreme Court 20 April 2022

R v Batak

[2022] NSWSC 424

HomicideTheft & propertyFirearms & weapons

Citation: R v Batak [2022] NSWSC 424
Court: Supreme Court of New South Wales
Date: 20 April 2022
Judge(s): R A Hulme J

Background

The accused was charged with the murder of John Odisho and the attempted armed robbery of Sargon Odisho, both arising from events in the early hours of 2 April 2019 at a Five Dock apartment. The Crown alleged that the accused planned an armed robbery of a drug dealer's home with a co-offender, Cengiz Coskun, and supplied Coskun with a loaded firearm and clothing for the job. At the last minute, the accused withdrew from physical participation, but the plan proceeded without him.

Coskun and an unknown male entered the apartment by climbing onto a balcony. The occupants resisted and a gun battle followed. John Odisho was fatally shot in the head by one of the intruders. Sargon Odisho was wounded, and Coskun himself was struck by shotgun pellets fired by Sargon Odisho. A separate trial of Coskun had recently concluded.

The accused brought two pre-trial notices of motion seeking either a permanent stay of proceedings or an order quashing the murder count, on the basis that the Crown could not establish a viable case of guilt on any of the theories of liability it advanced.

  • Whether the Crown could establish constructive murder through the accused's participation in a joint criminal enterprise to commit armed robbery, where the accused was not present at the scene and all his acts of participation preceded the robbery attempt
  • Whether extended joint criminal enterprise liability for murder was available in circumstances where the accused contemplated the possible infliction of grievous bodily harm or death
  • Whether accessory before the fact liability for constructive murder was available where the accused supplied the weapon but did not attend the scene
  • Whether it mattered that the Crown could not prove which intruder fired the fatal shot, or whether Coskun specifically used the gun supplied by the accused

Decision

Hulme J dismissed both motions, finding that the Crown's case was legally viable on all three theories of liability.

On constructive murder through joint criminal enterprise, the court held that the accused's absence from the scene did not preclude liability. The acts of participation (planning the robbery, supplying the firearm and clothing) were sufficient to establish him as a party to the joint criminal enterprise, even though they entirely preceded the robbery attempt itself. The death occurred during the commission of a crime punishable by 25 years or more, namely robbery whilst armed with a dangerous weapon under s 97(2) of the Crimes Act 1900 (NSW).

On the extended joint criminal enterprise basis, the court accepted that the Crown could argue the accused contemplated the possible commission of acts involving the intentional infliction of grievous bodily harm or death. Hulme J noted, however, that characterising the foundational offence as specially aggravated entering with intent to steal under s 111(3) rather than armed robbery added unnecessary complexity, given the evidence was better described as an armed robbery.

On accessory before the fact, the court was satisfied the Crown could advance a case that the accused intentionally assisted and encouraged the armed robbery by providing the gun, and that he contemplated the possibility of it being discharged to cause death or grievous bodily harm. The court also rejected the contention that the Crown needed to prove Coskun was the shooter and that he specifically used the accused's gun. If Coskun fired any gun causing the death, the act fell within the scope of the joint criminal enterprise, regardless of which particular firearm was used.

Orders Made

  • Motion to quash the murder count: dismissed
  • Motion for a permanent stay of proceedings on the murder count: dismissed

Key Takeaways

  • A person can be liable for constructive murder as a participant in a joint criminal enterprise even where all their acts of participation preceded the foundational offence and they were not present at the scene of the killing.
  • Accessory before the fact liability for murder does not require proof that the accessory's specific supplied weapon was the one used to cause death, provided the killing fell within the scope of the agreed enterprise or its contemplated possible acts.
  • Where an accused does not effectively withdraw from a joint criminal enterprise before a co-offender enlists another person to carry out the venture, the acts of that additional person remain attributable to the accused under the relevant principles of complicity.
  • Constructive murder under s 18(1)(a) of the Crimes Act 1900 (NSW) is available when death occurs during or immediately after the commission of a crime punishable by imprisonment for life or 25 years, with armed robbery under s 97(2) satisfying that threshold.
  • Procedurally, Hulme J treated the pre-trial challenge as both a motion to quash the indictment and a motion for a permanent stay, noting that demurrer was not the appropriate vehicle even though it had been raised in oral submissions.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1)(a), 97(2), 111(3)

Cases
- Dickson v R [2017] NSWCCA 78
- Hargraves v The Queen; Stoten v The Queen [2011] HCA 44; 245 CLR 257
- IL v R [2016] NSWCCA 51
- IL v The Queen (2017) 262 CLR 268; [2017] HCA 27
- Martinez v R; Tortell v R [2019] NSWCCA 153
- Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
- Qaumi, Farhad v R; Qaumi, Mumtaz v R; Qaumi, Jamil v R [2020] NSWCCA 163
- R v Batcheldor; Walsh v R [2014] NSWCCA 252
- R v Clough (1992) 28 NSWLR 396
- R v Lew [2003] NSWSC 1073
- R v Sharah (1992) 30 NSWLR 292
- R v Stokes; R v Difford (1990) 51 A Crim R 25
- R v Tangye (1997) 92 A Crim R 545
- R v Tietie (1988) 34 A Crim R 438
- Tierney v R [2016] NSWCCA 144