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Court of Criminal Appeal 10 May 2024

Batak v R

[2024] NSWCCA 66

Also reported as (2024) 114 NSWLR 313
HomicideTheft & propertyFirearms & weapons

Citation: Batak v R [2024] NSWCCA 66
Court: Court of Criminal Appeal, NSW
Date: 10 May 2024
Judges: Kirk JA, Wilson and Ierace JJ

Background

The appellant supplied a loaded pistol and a high-visibility shirt to a man named Coskun for use in a planned home invasion intended to steal drugs and money. Coskun and an unknown accomplice carried out the invasion shortly afterwards. During the invasion, gunshots were fired, killing one resident and wounding another.

The appellant was charged with murder under s 18(1)(a) of the Crimes Act 1900 (NSW) and attempted robbery whilst armed with a dangerous weapon under s 97(2). The Crown pursued a single pathway to the murder conviction: that the appellant was an accessory before the fact to constructive murder, where the foundational offence was the armed attempted robbery.

At trial, the judge directed the jury that guilt on the murder count required the jury to find, as a fifth element, that the discharge of a firearm during the attempted robbery was a possibility the appellant had foreseen when he supplied the gun and shirt. The judge considered himself bound by the Court of Criminal Appeal's earlier decision in R v Sharah (1992) 30 NSWLR 292. The appellant was convicted on both counts and sentenced to 14 years imprisonment (non-parole period 10 years and six months) for murder, with a concurrent two-year term for the attempted robbery.

  • Whether accessorial liability (as opposed to joint criminal enterprise) can coherently apply to a charge of constructive murder under s 18(1)(a) of the Crimes Act
  • Whether constructive murder under s 18(1)(a) requires any mental element in the killer regarding the act or omission causing death
  • Whether, for participants in a joint criminal enterprise (JCE) to commit the foundational offence, foresight of the act causing death is a necessary element of constructive murder
  • Whether the trial judge's direction requiring foresight of the gun being discharged was erroneous, and if so, whether it caused a miscarriage of justice
  • Whether the trial judge erred in failing to direct the jury on the significance of the appellant's lack of prior convictions
  • Whether the murder verdict was unreasonable
  • Whether a retrial should be ordered

Decision

On constructive murder and the foresight direction (Grounds 1 and 2)

The Court confirmed that constructive murder under s 18(1)(a) involves no mental element in the killer regarding the act or omission causing death. The Court also held that, where liability rests on JCE, there is no general requirement that a participant in the enterprise to commit the foundational offence foresee the act or omission causing death. The suggestion to that effect in R v Sharah was found to be obiter and, to the extent it suggested otherwise, should no longer be followed. The trial judge therefore erred in directing the jury that foresight of the gun's discharge was a required element. However, that error did not establish a miscarriage of justice: requiring the Crown to prove an additional, unnecessary element made conviction harder, not easier, and operated to the prosecution's disadvantage, not the appellant's.

On whether accessorial liability can apply to constructive murder (Ground 1)

The Court upheld the appeal on Ground 1, but on a separate and more fundamental basis. Under the doctrine of accessorial liability, an accessory before the fact must have intentionally assisted with knowledge of the acts constituting the offence, including knowledge of the act or omission causing death. That knowledge requirement, as articulated in Giorgianni v The Queen (1985) 156 CLR 473, is inherently inconsistent with the nature of constructive murder, which requires no such mental element. Accessorial liability therefore cannot coherently operate alongside a charge of constructive murder and is implicitly excluded by s 18(1)(a). The Court noted that this was an area of genuine legal uncertainty, with no directly on-point authority cited by either party, and concluded the issue should not simply be left to Parliament.

On the remaining grounds

The Court declined to grant leave on Ground 3 (the no-prior-convictions direction), finding the directions given adequately reflected an arrangement understood between the judge and the parties. Ground 4, the unreasonableness of the verdict, was also dismissed: the unavailability of one chosen pathway to conviction does not itself render a verdict unreasonable, and the evidence supporting guilt remained sufficient on the available pathways. The conviction on count 2 (attempted robbery) was upheld.

On retrial

The Court ordered a retrial on count 1, applying a factorial analysis. The seriousness of a murder charge, the strength of the Crown's potential case on a JCE pathway, and the fact that the case presented at a retrial would not differ substantially from the trial weighed in favour of a retrial. The legal complexity of the issues raised also favoured a fresh trial rather than finality at this stage. Bail was refused pending any fresh application.

Orders Made

  • Leave to appeal granted, other than with respect to Ground 3
  • Appeal on count 2 (attempted robbery) dismissed
  • Appeal on count 1 (murder) upheld
  • Conviction on count 1 quashed
  • Retrial on count 1 ordered; matter listed in the arraignment list of the Supreme Court on 7 June 2024 to fix a fresh trial date
  • Bail refused pending any application for release

Key Takeaways

  • Constructive murder under s 18(1)(a) of the Crimes Act 1900 (NSW) requires no mental element in the killer as to the act or omission causing death, and that position is not altered where liability is based on joint criminal enterprise to commit the foundational offence.
  • The Court of Criminal Appeal held that the statement in R v Sharah suggesting foresight of the death-causing act is necessary for constructive murder in a JCE context was obiter and should no longer be followed.
  • Accessorial liability (as distinct from JCE liability) cannot coherently apply to a charge of constructive murder: the knowledge of the death-causing act required of an accessory before the fact under Giorgianni is inconsistent with the very nature of constructive murder, and s 18(1)(a) implicitly excludes that basis of liability.
  • A misdirection that imposes an additional, unnecessary element on the Crown does not establish a miscarriage of justice where the error operated solely to the prosecution's disadvantage.
  • In ordering a retrial, the Court applied a multifactorial approach, weighing the seriousness of the murder charge, the strength of an available JCE pathway, the similarity of the potential retrial case to the original trial, and the genuine legal difficulty of the issues raised.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1)(a), 97(2), 580E
- Criminal Appeal Act 1912 (NSW), ss 5(1)(a), 6(1), 8(1)
- Bail Act 2013 (NSW), s 12(2)
- Evidence Act 1995 (NSW), s 38

Key Cases
- R v Sharah (1992) 30 NSWLR 292
- Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473
- IL v The Queen [2017] HCA 27; (2017) 262 CLR 268
- Mitchell v The King [2023] HCA 5; (2023) 276 CLR 299
- Ryan v The Queen [1967] HCA 2; (1967) 121 CLR 205
- Johns v The Queen [1980] HCA 3; (1980) 143 CLR 108
- Clayton v The Queen [2006] HCA 58; (2006) 81 ALJR 439
- McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108
- Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
- Miller v The Queen [2016] HCA 30; (2016) 259 CLR 380
- Johnson v Youden [1950] 1 KB 544
- Director of Public Prosecutions for Northern Ireland v Maxwell [1978] 3 All ER 1