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Supreme Court 27 February 2026

R v Batak

[2026] NSWSC 3

Homicide

Citation: [2026] NSWSC 3
Court: Supreme Court of New South Wales — Common Law Division
Date: 27 February 2026
Judge(s): Sweeney J

Background

The accused, Cem Batak, was charged with the murder of John Odisho on 2 April 2019 at Five Dock, Sydney. The Crown's case was one of constructive murder under s 18 of the Crimes Act 1900 (NSW). It was alleged that Mr Batak participated in a joint criminal enterprise with Cengiz Coskun to commit an armed robbery of drugs from the deceased's apartment, and that during that attempted robbery Mr Coskun shot and killed John Odisho.

The trial proceeded as a judge-alone hearing pursuant to an earlier order by Yehia J. The Crown alleged that Mr Batak's participation in the joint enterprise involved agreeing with Mr Coskun to carry out the armed robbery, providing Mr Coskun with a loaded mini Glock firearm intended for use in the robbery, and supplying a high-visibility shirt that Mr Coskun had requested for the commission of the offence. The foundational offence — robbery armed with a dangerous weapon (a firearm) — carries a maximum penalty of 25 years' imprisonment, satisfying the statutory threshold for constructive murder.

Mr Batak pleaded not guilty and exercised his right not to give evidence, putting the Crown to proof on all elements. A central issue at trial was whether the Crown could establish that Mr Batak had not withdrawn from the joint criminal enterprise before the fatal shooting occurred. The deceased, John Odisho, had been sharing a two-bedroom apartment at Five Dock with Sargon Odisho. Police subsequently found over two kilograms of cocaine, a quantity of MDMA, and $16,500 in cash in a bag on the building's roof, which the Crown contended were the target of the planned robbery.

  • Whether the Crown proved beyond reasonable doubt that Cengiz Coskun shot John Odisho with a firearm provided by Mr Batak, causing his death. The defence disputed both that the Crown had proved Mr Coskun was the shooter and that the gun used was supplied by the accused.

  • Whether the Crown proved the existence of a joint criminal enterprise — an agreement between Mr Batak and Mr Coskun to commit an armed robbery of drugs from the deceased's apartment.

  • Whether the Crown proved beyond reasonable doubt that Mr Batak did not withdraw from the joint criminal enterprise before the offence was committed. There was no onus on the accused to prove withdrawal; the Crown bore the burden of excluding it.

  • The correct approach to circumstantial evidence and the accused's silence. The trial was predominantly a circumstantial case (supplemented by alleged admissions), requiring the court to determine whether guilt was the only reasonable conclusion available on the established facts.

Decision

Sweeney J found the accused guilty of murder.

On the question of the joint criminal enterprise, his Honour directed himself that such an agreement need not be expressed in words and could be inferred from all the surrounding facts and circumstances. The agreement need only have crystallised by the time the crime was committed. The Crown relied on a combination of circumstantial evidence — including the provision of the firearm and the high-visibility shirt — along with statements by the accused that the Crown characterised as admissions.

A significant portion of the judgment addressed the legal framework for withdrawal from a joint criminal enterprise. Sweeney J directed himself that withdrawal requires a person to take such action as can reasonably be performed to undo the effect of prior participation and thereby prevent the commission of the crime. This may include communicating withdrawal to co-offenders in sufficient time, attempting to persuade them not to proceed, notifying police or potential victims, and taking all reasonable steps to frustrate the criminal agreement. Even where a person intends to withdraw, the withdrawal is ineffective if they fail to take reasonable steps to prevent the crime from being carried out. His Honour was satisfied beyond reasonable doubt that Mr Batak did not withdraw from the enterprise.

On the evidentiary aspects, the court noted that Sargon Odisho refused to give evidence when called by the Crown, and his out-of-court police statements were admitted only with limited use under s 136 of the Evidence Act 1995 (NSW). His Honour placed no reliance on those statements, finding them contradicted by other acceptable evidence. The court also gave itself the standard directions regarding the accused's right to silence — that no adverse inference could be drawn from Mr Batak's decision not to testify, and that his silence could not be used to fill gaps in the Crown case.

Importantly, the defence argued that the Crown had not excluded all reasonable alternative hypotheses consistent with innocence, citing Wiggins v R [2020] NSWCCA 256 for the principle that an accused bears no burden to establish an inference other than guilt from the evidence. Sweeney J ultimately concluded that guilt was the only rational inference available from the totality of the established facts.

Orders Made

  • The accused, Cem Batak, was found guilty of murder contrary to s 18 of the Crimes Act 1900 (NSW).

Note: The available text of the judgment does not include sentencing orders; it is likely that sentencing will be dealt with at a later date.

Key Takeaways

  • Constructive murder under s 18 of the Crimes Act 1900 (NSW) served as a significant prosecutorial tool, relieving the Crown of any need to prove an intention to kill or inflict grievous bodily harm. The Supreme Court confirmed that the Crown needed to establish only participation in a foundational offence punishable by life imprisonment or 25 years, together with a causal link between the offending conduct and the death.

  • Where an accused claims withdrawal from a joint criminal enterprise, the assessment is objective, focusing on what steps were reasonably available to undo prior participation and prevent the crime. Sweeney J held that a mere intention to withdraw was insufficient, particularly where the accused had provided critical instrumentalities (such as a loaded firearm) to co-offenders.

  • The Crown bore the evidential burden on the issue of withdrawal, and the accused carried no onus to prove he had withdrawn. In this case, the Crown discharged that burden by establishing that the accused failed to take reasonable preventive steps to counteract his prior contributions to the enterprise.

  • In a judge-alone trial, Sweeney J's self-directions on the standard of proof, the drawing of inferences, and the treatment of the accused's silence illustrated how issues ordinarily left to a jury were addressed. The circumstantial case, supplemented by alleged admissions, required careful analysis of both law and fact before a finding of guilt could be reached.

  • Uncooperative witnesses presented practical challenges but did not defeat the Crown case. Despite one key witness's refusal to give evidence and the limited use of his police interview, sufficient proof was found through other sources, including eyewitness testimony from Larissa Mitchell-Wiszniewski and the broader circumstantial evidence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18 (constructive murder)
- Evidence Act 1995 (NSW), ss 128, 136, 165

Cases:
- Wiggins v R [2020] NSWCCA 256