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Supreme Court 26 June 2025

R v Batak (No 6)

[2025] NSWSC 658

HomicideFirearms & weapons
CRIMINAL LAW MURDER APPLICATION FOR J UDGE ALONE TRIAL RETRIAL

Citation: R v Batak (No 6) [2025] NSWSC 658
Court: Supreme Court of New South Wales
Date: 26 June 2025
Judge: Yehia J

Background

In the early hours of 2 April 2019, two armed men broke into an apartment in what the Crown alleges was a planned robbery targeting drugs and money. One of the intruders shot and killed the occupant, John Odisho. The accused, who was not present at the scene, is alleged to have supplied the shooter with a loaded Glock pistol and a high-visibility shirt earlier that night, then withdrawn from the robbery after learning a replacement had been found.

The accused was charged with murder. The proceedings have had a highly unusual history: the first trial was aborted, the second resulted in conviction, and the Court of Criminal Appeal quashed that conviction and ordered a retrial. The Crown sought special leave to appeal to the High Court, which was granted but subsequently revoked by majority. The accused now faces a third trial.

For the retrial, the Crown proceeds on a single basis of liability: constructive murder by way of joint criminal enterprise. The accused applied for the retrial to be heard by a judge alone under s 132 of the Criminal Procedure Act 1986 (NSW). The Crown opposed the application.

  • Whether it is in the interests of justice under s 132 of the Criminal Procedure Act 1986 (NSW) to order a judge alone trial
  • Whether the complexity of the legal issues in the retrial is sufficient to support such an order
  • Whether the nature of the evidence, including tendency evidence and intercept recordings, warranted removal of the matter from a jury
  • Whether the protracted procedural history and interests of finality were relevant considerations

Decision

Yehia J granted the application. The court acknowledged at the outset the fundamental importance of trial by jury, noting its deep constitutional and democratic significance as articulated in Cheng v The Queen (2000) 203 CLR 248. The court confirmed that a judge alone trial is the exception, not the rule, and that the interests of justice threshold under s 132 requires careful consideration of all relevant factors in combination rather than in isolation.

Several factors weighed in favour of the order. The Crown case rests entirely on constructive murder by joint criminal enterprise in circumstances where the accused was not physically present at the killing. Directions on that basis, combined with directions on tendency evidence relating to the accused's alleged involvement in discussions about other "drug rips," would be legally complex. There was also a risk of cumulative unfair prejudice from a jury hearing multiple strands of criminality, including less serious unrelated conduct.

The court gave considerable weight to the protracted and unusual procedural history. The accused has already been through two trials and an extended appellate journey up to the High Court. Those circumstances informed a strong interest in efficiency and finality. The court also noted that the central issues in the trial do not involve the application of community standards, which is one setting in which jury evaluation is particularly valued.

Having considered all factors together, the court was satisfied it was in the interests of justice to order a judge alone trial.

Orders Made

  • Pursuant to s 132 of the Criminal Procedure Act 1986 (NSW), the trial is to proceed by way of judge alone.

Key Takeaways

  • Under s 132 of the Criminal Procedure Act 1986 (NSW), a judge alone trial order requires satisfaction that it is in the interests of justice, with no single factor being determinative; the court assesses the combination of all relevant considerations.
  • A protracted and unusual procedural history, including multiple prior trials and an extended appellate journey, is a relevant factor in the interests of justice analysis, particularly where efficiency and finality carry significant weight.
  • Complexity in jury directions on joint criminal enterprise and constructive murder, especially where the accused was absent from the scene, can support a judge alone order when considered alongside other factors, even though such complexity alone would not ordinarily suffice.
  • The risk of cumulative prejudice arising from multiple strands of tendency and uncharged criminality evidence was treated as a material consideration, distinct from the tendency evidence issue standing alone.
  • Where the central issues at trial do not require the application of community standards, the case for retaining a jury is comparatively weaker, and that absence was part of the court's reasoning in favour of the order.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 131, 132, 132A

Cases:
- AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8
- Arthurs v State of Western Australia [2007] WASC 182
- Cheng v The Queen (2000) 203 CLR 248; [2000] HCA 53
- Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197
- R v Abdaly; R v Hosseinishoja (No 3) [2022] NSWSC 1511
- R v Abrahams (2013) 230 A Crim R 74; [2013] NSWSC 729
- R v Ahmed [2022] NSWSC 1268
- R v Batak (No 2) [2022] NSWSC 425
- R v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86
- R v Dawson [2022] NSWSC 552
- R v Hadler [2018] NSWSC 1151
- R v Niguidula [2023] NSWSC 290
- R v Obeid [2015] NSWSC 897
- R v Qaumi & Ors (No 14) (2016) 265 A Crim R 575; [2016] NSWSC 274
- R v Sean Lee King (2013) 228 A Crim R 406; [2013] NSWSC 448
- R v Simmons; R v Moore (No 4) (2015) 249 A Crim R 120; [2015] NSWSC 259
- R v Stanley [2013] NSWCCA 124
- R v White [2024] NSWSC 1369
- R v XY [2024] NSWSC 1472
- Redman v R [2015] NSWCCA 110