Citation: R v Batak (No 2) [2022] NSWSC 425
Court: Supreme Court of New South Wales
Date: 20 April 2022
Judge(s): R A Hulme J
Background
The accused stood trial on charges arising from an alleged "drug rip" at Five Dock on 2 April 2019. A drug rip, as the judgment describes it, is an armed invasion of a home to steal drugs and money from the occupants. The Crown alleged the accused helped plan the robbery and supplied a co-offender with a high-visibility shirt and a loaded pistol, but withdrew from accompanying him at the last moment. During the robbery itself, an occupant was shot and killed.
The Crown sought to adduce tendency evidence consisting of intercepted telephone conversations. All of those conversations occurred after 2 April 2019. They involved the accused and various associates discussing drug rips, including a proposed rip at a florist shop and another involving a Persian man's safe house.
The accused objected to the evidence on three grounds: the conversations did not establish the tendency alleged; the evidence lacked significant probative value; and any probative value was outweighed by the danger of unfair prejudice.
Legal Issues
- Whether post-offence conduct can establish a relevant tendency under the Evidence Act 1995 (NSW), ss 97 and 101.
- Whether the intercepted conversations were capable of establishing that the accused had a tendency to participate in drug rips for profit.
- Whether the probative value of the tendency evidence significantly outweighed the danger of unfair prejudice to the accused.
- Whether any risk of unfair prejudice could be adequately addressed by judicial directions.
Decision
Issue 1: Whether post-offence conduct can establish a relevant tendency
The court accepted the Crown's submission that there is no requirement for tendency evidence to concern conduct that pre-dates the alleged offences (at [36]). The court noted that older authorities cited by the defence on the temporal question were decided under a different legal regime and offered no relevant principle (at [38]). The fact that the conversations all post-dated 2 April 2019 did not disqualify them from establishing a tendency.
Issue 2: Whether the conversations established the alleged tendency
The court found the conversations were capable of establishing that the accused was involved in drug rips, maintained a network of associates who identified targets, and was regarded by contemporaries as an authority on such activity (at [40], [45]). His passive listening followed by active engagement in planning a drug rip, including directing who would carry it out and how, supported the Crown's contention of the alleged tendency (at [51]). The court also found that the tendency was unlikely to have arisen suddenly in the weeks before 2 April 2019, particularly given that others deferred to his judgment on such matters (at [61]). The defence argument that the conversations amounted to "inarticulate ramblings" went to the weight a jury might assign to the evidence, not its admissibility (at [39], [62]).
Issue 3: Probative value versus unfair prejudice
The court was satisfied that the evidence, if accepted by the jury, had significant probative value regarding whether the accused participated in or had knowledge of the Five Dock robbery (at [53]). The court noted that drug rips are not common occurrences and that there cannot be many people with an interest and involvement in such activities, so the tendency evidence could strongly support proof of the facts in issue (at [63]). The court acknowledged a real risk that the jury might leap from the tendency evidence to a conclusion of guilt without proper analysis, but was satisfied that the evidence was sufficiently discrete in time and subject matter for clear judicial directions to be formulated and understood (at [64]). The court rejected the submission that such directions would require the jury to perform mental gymnastics (at [65]). The Crown's agreement to edit the recordings to remove unnecessary references to drug dealing further reduced the risk of prejudice (at [57], [67]).
Orders Made
- Tendency evidence admissible (on the premise that the Crown edits the recordings to delete unnecessary references to drug dealing).
Key Takeaways
- Post-offence conduct can establish a relevant tendency under the Evidence Act 1995 (NSW): the Supreme Court confirmed there is no rule requiring tendency evidence to concern conduct that predates the alleged offences (at [36]).
- Conversations in which an accused discusses drug rips, moves from passive listener to active planner, and is treated as an authority by associates are capable of establishing a tendency to participate in such activity, even where the conversations involve speculation or hearsay (at [40], [49], [51]).
- Where a tendency is of a specific and unusual character, such as participation in drug rips targeting safe houses, it can carry significant probative value in a trial for a robbery of the same character, even in the absence of a prior conviction (at [53], [63]).
- The risk that a jury might improperly use tendency evidence to leap to guilt does not automatically render the evidence inadmissible; the court found that clear, targeted judicial directions can manage that risk where the evidence is discrete in time and subject matter (at [64]-[65]).
- The court also criticised the longstanding ODPP practice of listing documents in tendency notices without describing their substance, noting that this approach caused unnecessary confusion and misdirected the defence's efforts in the present case (at [32]-[34]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52
- R v Batak [2022] NSWSC 424
- R v Beserick (1993) 30 NSWLR 510
- R v Dann [2000] NSWCCA 185
- R v Fung [2002] NSWCCA 479
- R v SK [2011] NSWCCA 292
- RH v R [2014] NSWCCA 71
- Taylor v R [2020] NSWCCA 355
- TB v R [2019] NSWCCA 224
- The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
- TWL v R [2012] NSWCCA 57