Coskun v R

Background

1. The following short summary of the evidence is substantially taken from the Crown's submissions on appeal. The applicant accepted that the summary was accurate save in one respect which is noted below.

Events at Unit 103, 50-52 East Street Five Dock

1. As at 1 April 2019 John Odisho and Sargon Odisho shared a two bedroom unit at 50-52 East Street, Five Dock. The unit was on the first floor with a balcony overlooking East Street. Immediately below the balcony was a concrete structure that surrounded a fire hydrant.
2. In the early morning of 2 April 2019 John Odisho was asleep in his bedroom with his girlfriend, Larissa Mitchell-Wiszniewski. The door to that bedroom was closed and locked. Sargon Odisho was in his own bedroom.
3. Shortly after 3:33am on 2 April 2019, two persons - being the applicant, who was wearing a fluorescent yellow short sleeve shirt over a black top, and a second unknown male dressed in black clothing - were captured on CCTV near the intersection of Lyons Road West and East Street, a short distance away from 50-52 East Street. The evidence established that the two male intruders gained access to the unit from the street by climbing onto the fire hydrant structure and entering the unit via the balcony.
4. A short time later, Ms Mitchell-Wiszniewski was woken by the sounds of banging from the hallway of the unit and voices. John Odisho, who was also woken, approached the closed bedroom door and listened. He gestured to Ms Mitchell-Wiszniewski to remain in bed. The sounds of a struggle continued, and Ms Mitchell-Wiszniewski heard Sargon Odisho say "I don't know" or "I don't have" in a panicked voice. The door to the bedroom of John Odisho and Ms Mitchell-Wiszniewski was either opened or broken. John Odisho pushed against the door to keep it closed, but it swung open and Ms Mitchell-Wiszniewski saw the wrist and hand of someone holding what looked like a black handgun. A subsequent crime scene examination revealed damage to the doors of both bedrooms within the unit.
5. The pushing of the door continued until it swung open entirely and John Odisho disappeared into the hallway. A male entered the room, approached Ms Mitchell-Wiszniewski (who was still on the bed) and pointed a silver handgun towards her from about a metre away. Ms Mitchell-Wiszniewski described the male as being of medium build and tall. He was wearing "all black" with a black bandana covering half of his face. The silver handgun pointed at her was larger than the black handgun she had seen earlier in the doorway. Ms Mitchell-Wiszniewski put her hands up to show that she did not have her phone. The male gestured with the gun in a downwards motion which Ms Mitchell-Wiszniewski took to mean "stay in bed". It was not in dispute at trial that the male who confronted Ms Mitchell-Wiszniewski was not the applicant but the unknown male intruder. It was the Crown case that the applicant - who remained in the hallway - was armed with the black handgun that Ms Mitchell-Wiszniewski had seen when the door opened.
6. After what felt to Ms Mitchell-Wiszniewski like a minute, the male armed with the silver handgun left the room. Almost immediately, she heard a series of shots close together and could see flashes of light from the doorway. The next thing she heard was Sargon Odisho yelling at her to call an ambulance. Ms Mitchell-Wiszniewski made a 000 call at 3:47am.
7. Numerous witnesses who lived in and around the unit complex at 50-52 East Street gave evidence. Many described being woken by noises consistent with a physical altercation followed by a series of gunshots. Most described those gunshots occurring in very quick succession. Some of the witnesses described hearing yelling prior to and after the gunshots. This issue was the one area where the applicant cavilled with the respondent's summary, saying, correctly, that some witnesses reported there being two sets of shots with a short gap in between the sets.
8. Andrea Gainge was woken by a man who sounded very distressed and appeared to be pleading for his life, saying things like "No, no, no, please don't, please stop". She immediately called 000 and was waiting for the call to connect when she heard gunshots. After the gunshots, a voice that seemed to belong to a different male and which was not was panicked or rushed said "Hurry up, we need to go". Joshua Tinning, who lived with Ms Gainge, heard a male in obvious distress say, "Don't, don't, stop, stop, help, help" prior to the gunshots and, afterwards, a different voice say "You fucking killed him bra, you fucking killed him" and later "Run, run, gotta run, run".
9. Dominic Bassos, who lived in the unit directly above that of John and Sargon Odisho, heard banging consistent with a struggle and screaming followed by gunshots. He saw two males jump from the balcony of unit 103 onto the concrete structure that covered the fire hydrant. He described the first male as having a larger build, and wearing a fluorescent long-sleeved hoodie, dark pants and something covering his face from the nose down (this being the applicant). The second male was slimmer and was wearing darker clothing. CCTV footage from the intersection of Lyons Road West and East Street showed the same two individuals seen at 3:33am running away from East Street at 3:46am.
10. John Odisho was found on the floor of Sargon Odisho's bedroom. He had been shot in the head by a .40 calibre weapon. He was treated by paramedics at the scene and taken to hospital but he later died.
11. Sargon Odisho and the applicant were also shot during the attempted armed robbery. Sargon Odisho sustained gunshot wounds to his left upper arm and left forearm. The applicant had a gunshot wound near his left hip.
12. After leaving the scene, the applicant drove himself to Auburn Hospital in a white Toyota Corolla. At 3:57am, minutes before walking into the hospital, the applicant called Abdulsamed Sari. Mr Sari attended the hospital but was not permitted to speak to the applicant.
13. The Corolla was later found by police on a street near the hospital. The key had been left on the rear passenger side wheel. Inside the car, police located and seized various items including a fluorescent yellow shirt bearing a Quantum Transport Solutions logo, a black jumper, black gloves, two mobile phones and documents including identification in the applicant's name. Subsequent DNA and ballistics analysis of the clothing and gloves were consistent with them having been worn by the applicant during the shooting. Both the Quantum Transport Solutions shirt and the black jumper showed evidence of shotshell damage, consistent with the gunshot wound sustained by the applicant.

Examination of the crime scene

1. The crime scene was examined by various experts. An examination conducted by ballistics experts revealed that two firearms had been discharged at the scene. Ten .40 calibre rounds were fired from one firearm. A second firearm was used to discharge six .38 calibre shotshell rounds.
2. The firearm that was used to discharge the six shotshell rounds was located in a blood-stained bag found concealed on the rooftop area of the unit complex at 50-52 East Street. The bag also contained just over 2kg of cocaine, a quantity of MDMA, a large amount of cash and a second, undischarged handgun. It was not in dispute at trial that Sargon Odisho had concealed the bag in that location after the shooting incident and prior to the arrival of police.
3. Ballistics expert Christopher Preece mapped the trajectory of all but one of the rounds fired during the offences based on impact damage left by the .40 calibre bullets and the shotshell rounds. The impact damage revealed that the ten .40 calibre single bullet rounds were discharged into Bedroom 2 (Sargon Odisho's bedroom) using the same firearm from the hallway just outside that bedroom, from the doorway to that room or from just inside it. John Odisho and Sargon Odisho were inside the bedroom at the time. Impact damage caused by some of the .40 calibre rounds showed that some of the rounds were fired from the hallway through the wall and door into the bedroom, consistent with the door having been closed when those shots were fired. Trajectory mapping based on other areas of impact damage showed that the door was open or partially open when other shots were fired with the same weapon.
4. Impact damage caused by the shotshell rounds was consistent with five shots having been fired from the .38 calibre revolver from just inside the door of Bedroom 2, out into the hallway. The sixth shot impacted the left hip area of the applicant. Tests conducted using the .38 calibre revolver with the same ammunition and shirts to recreate the pattern of shotshell damage to the Quantum Transport Solutions shirt worn by the applicant during the offences revealed that he was within 40 to 60cm of the muzzle of the .38 calibre revolver when he was shot. The Crown relied on the proximity of the applicant to the muzzle of the firearm held by Sargon Odisho, together with other evidence including the confined space in the doorway area of Bedroom 2, to submit that the applicant (and not the unknown male) was the person responsible for discharging the ten .40 calibre rounds into Bedroom 2 and shooting both John and Sargon Odisho.

Contact between the applicant and Cem Batak leading up to 2 April 2019

1. On 16 March 2019, about two weeks before the offences, Mr Sari - an associate of both the applicant and Cem Batak - gave the applicant the mobile number of Batak. Analysis of the call charge records for their respective services and the download of a phone seized from Coskun revealed a significant amount of contact between the applicant and Batak from 17 March 2019 to 2 April 2019.
2. Text messages recovered from a mobile phone used by the applicant revealed arrangements to meet Batak and others in a park. The first of three such meetings took place sometime after 9:15pm on 20 March 2019 with the applicant telling Batak, "Don't do nothing til I'm their" and "I'm sus on them" (as sent). Batak replied, "I'm going to the park now and going to Waite there for them I'll let you know when I'm done" and later, "Here". The messages exchanged between them are consistent with a second meeting at a park at about 12:30pm on 21 March 2019 and a third at a similar time the following day, 22 March 2019.
3. Phone contact between the applicant and Batak continued up to 2 April 2019.
4. At 12:14am on 2 April 2019 - about three and a half hours before the offences occurred - the applicant made a 16 second phone call to Batak. The pair then exchanged the following text and WhatsApp messages: Time From To Content 12:21:50 Batak Applicant Park on the street don't come in the drive way 12:27:05 Applicant Batak Gel (translation from Turkish to English: "Come") 1:00:10 Applicant Batak Bring hi viz 1:00:12 Applicant Batak Work shirts 1:00:13 Applicant Batak Two

1. As noted above, it was not in dispute that the applicant was wearing a fluorescent yellow shirt bearing the Quantum Transport Solutions logo over a black jumper while he was inside the unit in the early hours of 2 April 2019. Both items were later found in his Corolla. It was also not in dispute that, consistent with the above messages, the fluorescent yellow high vis shirt had been provided to him, in accordance with his request, by Batak (who, the evidence established, had briefly worked for Quantum Transport Solutions).
2. Call charge records and mobile internet data for mobile phone services used by the applicant are consistent with him driving to Five Dock at about 2:41am, an hour before he and the unknown male entered the unit of John Odisho and Sargon Odisho. His vehicle was captured on CCTV in the immediate vicinity of East Street at 2:39am before driving off and returning at 3:29am (prior to entering the unit at about 3:40am). At the time, the applicant was in possession of multiple mobile phones which were later recovered from his Corolla, including a Samsung J5 that had been set up as a Ciphr phone, being a mobile phone that has been modified and set up with specialist encryption software such that it cannot be downloaded or intercepted by law enforcement and can be remotely wiped by the user. In light of those features, Ciphr phones are preferred by organised crime networks. Telstra records regarding data used by that phone show that the applicant used the device for extended periods at 2:54am and 3:14am on 2 April 2019; that is, shortly before he is alleged to have committed the offences.
3. The applicant did not participate in a police interview. He did not give evidence at the trial nor call any witnesses. As is implicit in the above summary, it was not in dispute at the trial that the applicant was the man at the scene wearing a high vis shirt over a dark top.

The Crown case and the trial judge's directions

1. The applicant was indicted on two counts at trial, in the following terms: "1. [The applicant], on 2 April 2019, at Five Dock in the State of New South Wales, did murder John Odisho; and 2. [The applicant], on 2 April 2019, at Five Dock in the State of New South Wales, did attempt to rob Sargon Odisho of certain property, namely prohibited drugs and an unknown sum of Australian currency, the property of Sargon Odisho, whilst armed with a dangerous weapon, namely a firearm."
2. The Crown relied on three distinct pathways to establish the murder conviction: 1. constructive murder, with the attempted armed robbery (ie count 2) as the foundational offence, where the Crown alleged the applicant and the unknown intruder were engaged in a joint criminal enterprise (JCE) to commit that offence; 2. extended joint criminal enterprise (EJCE) murder, with the underlying JCE being an agreement with the unknown intruder "to enter the home … with intent to steal property", and where the applicant foresaw the possible use of the gun to inflict death or really serious bodily harm; 3. JCE murder, where the JCE was with the unknown intruder to shoot and kill or cause grievous bodily harm to an occupant of the apartment being robbed.
3. The applicant noted that the third pathway depended upon some evidence given by Sargon Odisho, who it was said was "not a witness who was truthful or reliable and, for the most part, he refused to give evidence". In this context the applicant said that it was "reasonably likely that the jury, like the judge on sentence (sentence judgment at [34]), put his evidence to one side". Thus the two relevant pathways were the first (constructive murder) and the second (EJCE). It is the first pathway which the applicant challenges here.
4. The doctrine of constructive murder is provided for by s 18(1)(a) of the Crimes Act 1900 (NSW), which is (relevantly) in these terms: 18 Murder and manslaughter defined (1) (a) Murder shall be taken to have been committed where the act of the applicant, or thing by him or her omitted to be done, causing the death charged, was … done in an attempt to commit, or during or immediately after the commission, by the applicant, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.
5. Here, as noted, the "crime punishable for imprisonment for life or 25 years" was that charged by count 2, being an offence of attempted robbery whilst armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act. That offence carries a maximum penalty of 25 years imprisonment upon conviction, thus being an offence the nature of which is contemplated by s 18(1)(a). The act of the applicant causing death done whilst committing that offence was the act of discharging a firearm, leading to the death of John Odisho. The Crown's primary case was that the applicant fired the fatal shot (along with that which wounded Sargon Odisho) but that, even if the unidentified second intruder had been the shooter, the applicant was liable for the shooter's acts as they were carried out in the course of a JCE between the two men to carry out the foundational offence.

The applicant's argument

1. Ground 1 of the applicant's notice of appeal attacks the directions given on the first pathway, as follows: "The trial judge erred, in directing the jury on the elements of constructive murder, namely by directing that the Crown needed to prove only that the Appellant was aware that a gun might be fired, rather than that the act causing death was within the scope of the joint criminal enterprise to commit the foundational offence."
2. The key steps in the applicant's argument were these: 1. The Crown must prove that the accused committed the act causing death or that the act was in furtherance of, and within the scope of, a JCE (the applicant did not refer to an omission causing death, as that is not raised in this case). The applicant relied in particular on two first instance decisions in support of this proposition: R v Nehme, Price, Rahim, Taufahema and Rizk [2023] NSWSC 202; R v DJD and Murdoch [2023] NSWSC 222; (2023) 111 NSWLR 193. The act causing death can only be in furtherance of a JCE if it is agreed that that might happen in furtherance of the joint criminal enterprise. 2. The second of the judge's enumerated elements of constructive murder was erroneous. That direction was that while the applicant participated in the JCE to commit the foundational offence, "he was aware that the gun might be fired either by himself or the second intruder". The word "might" involved a mere possibility. To allow a subjective awareness of a mere possibility of another offence being committed was, in substance, to introduce EJCE reasoning. An EJCE pathway to constructive murder is not available in light of the High Court's decision in Mitchell v The King [2023] HCA 5; (2023) 276 CLR 299 (being a decision handed down subsequent to the trial of the applicant).

Consideration

1. In the joint judgment in Batak we set out the evolution of principles of criminal complicity at [50]-[87]; summarise the different doctrines of criminal complicity at [88]-[96]; and trace the history of constructive murder - previously called felony murder - at [97]-[109]. We will not repeat that analysis here. As we explain there at [101]-[102], constructive murder under s 18 of the Crimes Act has been recognised to manifest the common law doctrine, save with respect to what is recognised as the foundational offence and in moving away from the notion of "malice aforethought".
2. The policy behind the constructive murder rule can be traced back through the common law. It was succinctly stated by Wrottesley J for the court in R v Jarmain [1946] 1 KB 74 at 80: "We think that the object and scope of this branch of the law is at least this, that he who uses violent measures in the commission of a felony involving personal violence, does so at his own risk and is guilty of murder if those violent measures result even inadvertently in the death of the victim."
3. The applicant's first key argument here - that for the purposes of constructive murder under s 18 the act causing death must be done by the accused, or be within the scope of a JCE - cannot be accepted. There are many cases in which what is now labelled the doctrine of JCE has been applied in the context of constructive murder, where the relevant JCE is to commit the foundational offence, regardless of whether or not that offence involves (or may involve) the act causing death. We discuss such cases in Batak at [103]-[110] and [115]-[125]. Without repeating the analysis here, we note that for example in R v Jackson (1857) 7 Cox's CC 357, at 360, Bramwell B said the following: "The rule of law is this - if two persons are engaged in the pursuit of an unlawful object, the two having the same object in view, and, in the pursuit of that common object, one of them does an act which is the cause of death, under such circumstances that it amounts to murder in him, it is murder in the other also."
4. A leading authority on point in this country is this Court's decision, delivered by Jordan CJ, in R v Surridge (1942) 42 SR (NSW) 278. The Chief Justice there said (at 282-283; citations omitted): "There remains the further question whether this warranted a verdict of murder in William Surridge's case, or whether in his case it was necessary to direct the jury that if they found that he was an accomplice of those who committed the actual acts of violence they must or might return a verdict of manslaughter only. This involves a consideration of the effect of s. 18 of the Crimes Act, 1900, upon the position of accomplices in cases of murder. A person who procures or knowingly aids in the doing of a criminal act is equally liable with the person who does the act. If two combine to effect a common criminal purpose, each is liable for any act done by the other in order to effect the purpose which was common to both of them, but not for anything done by the other which was not incidental to the carrying out of their common purpose. A person is an accomplice in the crime charged if he took part in its commission, and was 'privy to the criminal intent of the thing done': R. v. Cramp, i.e., if he aided not only in the commission of what he knew to be a criminal act, but in the commission of what he knew to be, or to be likely to involve, the particular criminal act charged, so that what was done was in the course of carrying out a common purpose. The following considerations are material in considering whether an accomplice has incurred liability to conviction upon a charge of murder. At common law, killing constituted murder in two classes of case which, stated broadly, were (1) where the killing was intentional, and (2) where it was done unintentionally in the course of committing certain crimes which did not necessarily involve killing. This distinction is maintained in the definition of murder contained in s. 18, which provides that murder shall be taken to have been committed only in two classes of cases, (1) where what caused the death was done or omitted (a) with reckless indifference to human life, or (b) with intent to kill or inflict grievous bodily harm, or (2) where it is done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him, (a) of an act obviously dangerous to life or (b) of a crime punishable by death or penal servitude for life. Every other punishable homicide shall be taken to be manslaughter. The special mention of an accomplice in the second group does not exclude accomplices from liability for murder for killings included in the first group: s. 345: R v. Grand. Thus, if two persons agree that one of them shall kill or inflict grievous bodily harm on another party whilst the other stands by and keeps watch or otherwise assists, the latter is guilty of murder as an accomplice if the third party is killed, since he is a principal in the second degree. Again, if they agree that the active party shall commit a crime, and agree also, expressly or tacitly, that if resistance is offered any necessary violence may be used to overcome it, including killing or inflicting grievous bodily harm, then if the active party intentionally kills or inflicts grievous bodily harm which causes death, in order to overcome resistance, the other party is guilty of murder, because the killing was within the common purpose. If the killing amounted only to manslaughter by the active party, the other party is also guilty only of manslaughter. If, however, their agreement does not involve the doing of something in the first group, it is necessary, in order that the person who is an accomplice only may be guilty of murder, that it should have been within the common purpose of both that an act obviously dangerous to life, or a crime punishable by death or penal servitude for life, should be committed, and the cause of the death must have been something done by the other in an attempt to commit or during or immediately after the commission of that act or crime."

Ground 2: the directions on self-defence

1. We have set out the content of the written directions given with respect to self-defence in the context of the whole at [37] above. His Honour gave consistent directions orally to the jury when setting out the requirements for proof of constructive murder. He orally directed the jury as to the elements for the s 18(1)(a) offence, being those required to prove the foundational offence, together with the following: "The first is the firing of the gunshot that killed John Odisho occurred in attempting to commit that offence; and The second is, when agreeing to participate in the joint criminal enterprise, the accused was aware of a possibility that the gun might be fired. And of course - it is uncontroversial - John Odisho died as a result of the gunshot wound".
2. The trial judge then said: "For the first of those two matters I have just mentioned, the attempt to commit the armed robbery, the Crown case is that the shooting of the 40 calibre gun, including the shot which killed John Odisho, was part and parcel of the attempt to commit the robbery. It was something done in the attempt to commit that offence. It may not have been essential to the robbery, but it was, in effect, a contingency for which the intruders were prepared. The very reason for the intruders being armed was in order to carry out the robbery by force, if need be, and that included overcoming any resistance. Even if the fatal shot was fired in response to the 38 Smith & Wesson being fired, engaging in an exchange of gunfire was still part of the attempt to commit the robbery. The defence case in relation to this first matter is that you would not be satisfied of it beyond reasonable doubt. You would have a reasonable doubt because there is a possibility that the shooting, including the shot which killed John Odisho, may have had nothing to do with any planned robbery, but was something that occurred because of a belief that it was necessary only as a matter of self-defence. The two men entered the apartment, they were shot at, and so there was a belief it was necessary to shoot back in defence. If you consider that this is a reasonable possibility, the Crown will have failed to prove beyond reasonable doubt that the firing of the gunshot that killed John Odisho occurred in attempting to commit the robbery".
3. The applicant complains that by his written and oral directions the trial judge rendered "self-defence unavailable unless the only purpose of firing the gun was self-defence". He argues that the relevant provisions of the Crimes Act, ss 418-421, govern the availability of a defence of self-defence and apply in the ordinary course to a case relying upon constructive murder.

Ground 3: self-defence and EJCE

1. Ground 3 is as follows: "The trial judge erred in directing the jury about self-defence in relation to extended joint criminal enterprise, namely by failing to direct the jury that the Crown was required to prove, beyond reasonable doubt, that: (a) the Appellant contemplated the intentional infliction of death or grievous bodily harm other than in self-defence; and (b) that the shooter (whoever he was) did not believe that firing the gunshot that killed the deceased was necessary for self-defence."
2. Senior counsel for the applicant conceded that if the Court did not uphold ground 2, this ground fell away. Having concluded that ground 2 cannot be made good it is not therefore strictly necessary to determine the arguments in support of this ground. For completeness, however, we indicate that we would not have upheld this ground.
3. As can be seen from the written directions given to the jury extracted at [37] above, the trial judge did direct the jury with respect to extended joint criminal enterprise and self-defence. The directions were given in the context of the trial as it was conducted by the parties before the jury, and his Honour was not asked to give any further or other direction than that which he gave. That was no doubt so because the directions were adequate to the case as it was presented by the parties. Although the contention in closing address to the jury was that its members might consider it possible that Sargon Odisho was the first to shoot, the applicant's counsel did not advance any argument about self-defence in the context of an extended joint criminal enterprise murder.
4. The directions given were more than adequate in those circumstances.

Grounds 4-5: the tendency evidence

1. Grounds 4 and 5 were as follows: "(4) The trial judge erred in admitting, as tendency evidence, evidence that the Appellant had previously committed three armed robberies while wearing a high visibility T-shirt over a long-sleeved jumper. (5) The trial judge erred in his directions to the jury about the tendency evidence."
2. We will address these grounds in turn.

The admission of the tendency evidence

1. The application to adduce tendency evidence was argued and decided shortly before the trial began: R v Coskun [2022] NSWSC 149 (TJ). The tendency that the Crown asserted in its tendency notice was as follows: "The tendency sought to be proved is his tendency [to] have a particular state of mind and to act in a particular way, namely: to deliberately wear high visibility shirts with the intention of committing a robbery and when committing a robbery for the purpose of assisting him carry out that offence."
2. The tendency evidence that the Crown wished to adduce was summarised by the Crown in the application to the trial judge as follows (quoted at TJ [10]): "Between 3 May 2013 and 19 September 2013, the accused committed six armed robberies on Subway restaurants in Western Sydney. On each occasion the accused was armed with a knife, not a firearm. He pleaded guilty to four armed robbery offences and signed an agreed statement of facts with two further offences taken into account on a Form 1. In relation to three of these robberies on three separate days, on 3 May 2013, 16 September 2013, and 19 September 2013 the accused was wearing a high visibility t-shirt over a hooded jumper and a cap. Although he did not wear high visibility clothing for the other three robberies, it is submitted that he had no reason (for example by way of employment …) to be wearing high visibility clothing. Rather, this appeared to be part of his modus operandi and clothing he had deliberately chosen to wear for this purpose. The accused acknowledged that the clothing did not belong to him but to his brother … and as such was not wearing clothing that belonged to him."
3. The Crown wished to adduce evidence of some still photographs from CCTV footage of the prior armed robberies, along with part of a statement of agreed facts tendered in the sentencing proceedings in the District Court for the armed robberies, being the part which referred to the three armed robberies in which the applicant was wearing a "high vis" shirt. The applicant opposed the tendency evidence being provided to the jury. The trial judge decided to permit such evidence to be adduced and, in due course, that occurred. In his pre-trial ruling his Honour concluded that: the evidence had significant probative value within the meaning of s 97(1)(b) of the Evidence Act 1995 (NSW); such probative value outweighed the danger of unfair prejudice to the applicant for the purposes of s 101 of the Evidence Act; and for the same reason it should not be excluded under s 137 of the Evidence Act.

Capacity to prove the asserted tendency

1. The nub of the applicant's argument here was that "the evidence of the tendency was very weak because not only was the conduct only apparent in half of the robberies [being three of the six Subway store robberies], but the suggested purposes were speculative". The Crown had suggested two possible reasons to the trial judge as to why the applicant might have worn the high vis shirt in the 2013 robberies: to avoid attracting attention by being able to pass himself off as a construction or council worker or the like, and/or to allow a quick change of appearance after the commission of the offence (see TJ [18]).
2. The applicant's focus on the nature of the possible reasons why he may have worn the high vis shirt in the three relevant armed robberies in 2013 misunderstood the nature and significance of the tendency evidence. The tendency which the Crown asserted went to the fact of deliberately wearing such a shirt when he had the intention of committing a robbery, and when committing a robbery, for the purpose of assisting him carry out that offence. Both aspects of that tendency involve an assumption that the applicant considered that wearing a high vis shirt may have assisted him in committing a robbery, hence the final phrase in the claimed tendency of "for the purpose of assisting him carry out that offence". But the asserted tendency does not identify any particular reason why he did so. It is true that the Crown's suggestion of two possible reasons was somewhat speculative. Those reasons might or might not have been why he wore the shirt. As the applicant suggested, it could have been that he considered wearing such a top to be lucky. The reasons he had may have been inspired or foolish.
3. Whatever his reasons, and however good those reasons were, what stands out is the distinctiveness of wearing such attire in a robbery. Doing so appears counter-intuitive, as the Crown submitted below (see TJ [15]), as it might be thought to draw more attention to the wearer. As the trial judge indicated, wearing a short sleeved high vis shirt over the top of a long-sleeved hooded jumper, whilst committing a robbery, is "capable of being regarded by a jury as quite an unusual thing to do" (TJ [32]). That conclusion draws, legitimately, upon ordinary human experience: note Bauer at [51].
4. Whatever the applicant's reasons for wearing the high vis top, it is the unusual nature of the conduct in that context which serves to link the events together: note Bauer at [58]; McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045 at [31]. The unusual nature of the conduct suggests that in the applicant's mind there was some reason for wearing a high vis shirt whilst committing robberies, whatever that may have been.

Capacity to prove any fact in issue

1. In this Court the applicant submitted that the fact in issue in the proceedings, to which the tendency evidence could have been relevant, was "whether the purpose was robbery rather than some other illegal purpose such as theft or burglary". That was so in a context where there was no dispute (it was said) that the applicant had entered the apartment via the balcony at about 3:45am with another intruder, that he had been wearing the high vis shirt which he had deliberately obtained shortly beforehand, and that he had no legitimate reason for being in the unit. The applicant argued that the fact that he was wearing an outfit similar to that which he had worn during three of the six robberies on Subway stores had little or no capacity to prove that his purpose in doing those things was robbery rather than theft or burglary. It was said that the high vis shirt did not of itself say anything about robbery being likely. It was not, for example, something like a mask that could be used to frighten the intended victim of the robbery or disguise the robber's identity when interacting with the victim.
2. The Crown had identified three facts in issue to which it said the tendency was relevant in the Court below: TJ [19]. These boiled down to whether the applicant had an intention to commit a robbery at the unit shortly prior to and at the time of the events inside the unit. That issue was relevant to the attempted armed robbery charge on count 2, which in turn was the foundational crime for the constructive murder pathway on count 1.
3. In submissions below on the tendency issue counsel for the applicant conceded that the applicant had been present in the unit at some point. However, when the trial judge asked "So he says 'I was there for some purpose other than robbery'?", counsel responded: "All I can say is that robbery is in issue, but the central issue is possession of or knowledge of the possession of a firearm. That is the essential issue when it comes to the elements of the offence". Counsel did not concede that the applicant was in the unit for an illegal purpose. The fact in issue was thus not so narrow as current counsel for the applicant now contends, namely robbery versus some other illegal purpose. In closing submissions to the jury counsel for the applicant did say this: "there is the reasonable possibility that Mr Coskun went into that apartment at 3:40 in the morning to steal, or to rob using some sort for force. After all, let's be realistic, it's 3:40 in the morning; it is not callers' hours". This was not quite a concession that the applicant had been there for at least some illegal purpose. But even if it was, making such a concession in closing address - after admission of the evidence - does not retrospectively alter the issues that had been presented to the trial judge, nor is it capable of rendering that earlier decision wrong in law.

Whether the probative value outweighed the danger of unfair prejudice

1. The applicant's argument on this point overlapped to some extent with those made on capacity to establish a fact in issue. The probative value of the tendency evidence was said to be limited. Those arguments have been rejected. Pursuant to s 101(2), the probative value had to be weighed against the danger of unfair prejudice to the accused. Here, that unfair prejudice was said to arise in four ways.
2. First, it was said that taking the tendency evidence at its highest, the jury would accept that the applicant was "an admitted serial armed robber", which fact would tend to overwhelm the jury's consideration of whether the intent of the applicant in entering the unit was to commit an armed robbery.
3. Secondly, the applicant argued that admission of the tendency evidence placed him in the invidious position of having to choose whether to allow evidence of just the three previous armed robberies involving him wearing a high vis top going to the jury, or allowing evidence of the other three 2013 robberies also to be placed before the jury, painting him as even more of an inveterate armed robber. Similarly, he had to choose whether or not to allow evidence to be given that he had indicated to the police, when interviewed about the previous armed robberies, that he had been erratic and addicted to the drug ice, thus leading the jury to form "an even more negative and prejudicial view of his character".
4. The trial judge addressed these arguments below in the following terms: "[44] The Crown submissions are correct in characterising the evidence as limited in time and subject matter such as to present a discrete topic about which it will be possible to direct the jury with clarity as to permissible and impermissible uses. [45] That consideration also applies in the event the accused wishes to have adduced the evidence of the other three armed robberies he committed in 2013. [46] The difficulty for the accused in electing whether to adduce that evidence and whether to adduce any of the content of the police interview of 9 October 2013 is acknowledged. These are not, however, matters that would potentially involve the accused having to make any additional disclosure of criminality that will be incapable of appropriate and fair assessment by the jury."
5. Section 101(2) is concerned with the danger of unfair prejudice, which involves "some harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way": Bauer at [73]. Whether the prejudice caused is unfair, and how that is to be weighed against the probative value, obviously involves consideration of the facts of the particular case.

The directions about the tendency evidence

1. Ground 5 was the subject of short written submissions by the applicant and only brief mention in oral submissions. Senior counsel put that the applicant's "primary position" was that the tendency evidence should not have been admitted in the first place. The tendency evidence that was adduced was a reduced form of the agreed facts from the sentencing for the 2013 offences, referring just to the three offences in which a knife had been used, along with CCTV photos from two of the three robberies.
2. The applicant submitted that the trial judge misstated the asserted tendency in the written summing up notes provided to the jury. In that document his Honour said that the Crown contended that "the accused had a tendency to wear high-visibility t-shirts over long-sleeved tops when committing robbery offences". The applicant's complaint is that his Honour omitted the final phrase of "for the purpose of assisting him to carry out that offence". As the Crown pointed out in response, when his Honour commenced his oral directions on the tendency evidence in summing up he stated the fuller version of the asserted tendency. In any case, it is difficult to see how omission of the final phrase in the written document caused the applicant any prejudice.
3. Next, the applicant argued that the jury were not given "any guidance about how they were to determine whether or not the three events which occurred some years before established a tendency to behave in a certain way or to have a certain state of mind". Nor, it was said, did his Honour explain how the asserted tendency could make it more likely the applicant was engaged in a joint criminal enterprise to commit robbery rather than some other crime such as burglary. Yet these were not matters of any great complexity. This complaint has an air of artificiality about it. It is telling that the applicant has not indicated what would have been an adequate direction: cf Greenhalgh v R [2017] NSWCCA 94 at [21].
4. Then the applicant asserted that the directions of the trial judge on impermissible uses of the evidence were "confusing and opaque". Yet in his Honour's summing up he addressed the tendency evidence carefully, including what was and was not a permissible use of the tendency evidence. The applicant said that his Honour "did not make clear that the jury could not reason that, because the accused had previously committed armed robberies, he was more likely to have intended to commit robbery, rather than some other offence, on that occasion". Yet the judge said in oral directions that "[t]he question is whether [the tendency] makes it more likely the accused was engaged in a joint criminal enterprise of armed robbery in the way the Crown alleges". He then went on to "say some things about the ways it must not be used", including that "the accused has a tendency to commit robberies, armed robberies or murder", or that it "establishes something adverse about the accused's character and so that makes it more likely he did what it is alleged he did on 2 April 2019". These directions were clear. If the applicant wanted something more than this said, it could have been sought. That was not done.

Ground 7: the sentence appeal

1. As already noted, the applicant was sentenced to an aggregate term of 34 years imprisonment with a non-parole period of 25 years and 6 months, commencing from the date on which he was taken into custody (2 April 2019): R v Coskun (No 5) [2022] NSWSC 1216 (SJ). The trial judge indicated that if an aggregate sentence had not been imposed then the sentence for the murder would have been 32 years with a non-parole period of 24 years and the sentence for the attempted robbery whilst armed with a dangerous weapon would have been one of 5 years: SJ [101].
2. Only one ground was pressed on the sentence appeal, which was that the sentence imposed by the trial judge was manifestly excessive. In order to establish the kind of error alleged by the applicant it was necessary to show that the sentence imposed "is unreasonable or plainly unjust" such that this Court "may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance": House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505. Appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases; it is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons; by its very nature, that is a conclusion that does not admit of lengthy exposition: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [59], and authorities there cited.
3. The maximum penalty for murder is imprisonment for life. There was a standard non-parole period which, in the circumstances of this case, was 20 years. The maximum penalty for attempted robbery whilst armed with a dangerous weapon is imprisonment for 25 years, with no standard non-parole period.

The trial judge's findings on sentence

1. There was no challenge to the findings of fact made by the trial judge. As regards the events in question, his Honour found that both intruders were armed with a handgun, and that it was the applicant who discharged the 10 rounds from the .40 calibre gun: SJ [32]. It was thus the applicant who shot and killed John Odisho and injured Sargon Odisho. The trial judge "very much doubt[ed]" that Sargon Odisho fired first, but even if he had done so he would have been acting in self-defence, and so that would not lessen the objective gravity of the offending: SJ [38] and [43].
2. Aggravating factors of the attempted robbery were that it was committed by two offenders in company, both of whom were armed, and with three victims confronted, two of whom were physically confronted then shot at and the other of whom (Ms Mitchell-Wiszniewski) was confronted in bed with no doubt serious effects upon her: SJ [45]. This offence was also aggravated by the fact that in pursuit of the robbery the applicant twice wounded Sargon Odisho with gunshots: SJ [52].
3. As regards the murder charge, the applicant must have contemplated that gunfire might occur, which was a significant aggravating factor as it is not an inherent element of constructive murder: SJ [51]. His Honour said that conviction for constructive murder ensues when the risk of causing the loss of a life by participating in a robbery with a lethal weapon materialises; it is not a matter of mitigation that there was no intention to kill or inflict really serious harm: SJ [54]. In any event, he was satisfied that at the time of firing his gun the applicant at least intended to cause really serious bodily harm, and there must also have been a high degree of recklessness as to the possibility of death being caused: SJ [51].
4. The trial judge characterised both offences as above the mid-range of objective seriousness for offences of their type: SJ [56].
5. As regards matters relating to the applicant more generally, his Honour made the following findings: 1. His Honour was not satisfied that the applicant was remorseful, and he appeared to have little or no insight into his legal or moral culpability for the death of the deceased: SJ [79] and [82]. The most that could be said about the applicant's prospects of rehabilitation and avoidance of reoffending is "that there is some hope": SJ [83]. 2. The applicant had a lengthy criminal record, which commenced when he was aged 17: SJ [67]. Notably, at the end of 2014 he was sentenced to five years imprisonment with a non-parole period of three years in respect of the six robberies of Subway stores armed with a knife: SJ [69]. His parole period for those offences expired in early January 2019, just three months before the offences at issue here: SJ [69]. His counsel had accepted that this criminal record disentitled him to leniency: SJ [70]. 3. The applicant was 28 years old at the time of the offences. His upbringing was significantly marred by domestic violence: SJ [59]. His formative years were marred by sexual abuse when he was aged 8-14: SJ [60]. He had starting using alcohol from 11-12, cannabis from 13, and ice, cocaine and heroin when aged 15-18: SJ [62]. He suffered further sexual abuse when at Cobham Juvenile Justice Centre: SJ [64]. 4. The applicant had been assessed as meeting the diagnostic criteria, currently and at the time of offending, for Post-traumatic Stress Disorder, Major Depressive Disorder with Anxious Distress, and Substance Abuse Disorder: SJ [75]. His Honour noted that it had not been submitted that the applicant's mental conditions were causative of the offending or reduced his moral culpability, but his Honour accepted that they were more broadly relevant and played a part in explaining what led the applicant to where he was: SJ [81]. 5. His Honour took into account that the applicant's two and a half years on remand had been attended by the isolation and deprivations consequent upon the COVID-19 pandemic: SJ [84].

The applicant's arguments

1. The applicant's written submissions on ground 7 were short and the issue was not addressed orally. The following arguments were made by the applicant in aid of the assertion of manifest excess: 1. The subjective case of the applicant called for some mitigation. 2. The aggregate and indicative sentences are inexplicably high given the finding of the trial judge that the objective gravity of each offence was "merely" (to use the applicant's word) said to be "above the mid-range" (SJ [56]), and the murder was neither intentional nor premeditated. 3. Having regard to the sorts of sentences which are imposed for robbery-related murders, the sentence appears unreasonably stern.
2. On any view the sentence imposed was a severe one. Yet the applicant accepted in submissions to this Court that "the offending called for a condign sentence". There is nothing to suggest that it was unreasonably stern.
3. The submission that the subjective case of the applicant called for some mitigation ignores the fact that it was taken into account. His Honour said, for example, that "a significant element of Mr Coskun's subjective case is his experience of early life disadvantage as well as physical and sexual abuse": SJ [80]. His Honour implicitly accepted the mental health conditions of the applicant, along with his entanglement with alcohol and drugs. However, the trial judge's unchallenged findings of the applicant's lack of remorse and insight, with limited prospects of rehabilitation, and a significant criminal record involving not dissimilar offences, also appropriately weighed significantly in the balance. He was entitled to no discounts for guilty pleas or the like.
4. Whilst the killing of John Odisho was not intentional or pre-meditated, the trial judge found that the applicant at least intended to cause serious bodily harm and that there must also have been a high degree of recklessness as to the possibility of death being caused: SJ [51]. Moreover, the submission of the applicant on this point has a flavour of downplaying the seriousness of constructive murder as opposed to other categories of murder. That suggestion is unsound, as Gleeson CJ explained in this Court in R v Mills (unreported, 3 April 1995), in a passage referred to approvingly by the trial judge (SJ [55]): "The major premise underlying the argument of counsel for the appellant was that cases of felony murder involved a lower level of culpability than cases of murder involving intention to kill and therefore should receive a lower level of sentence than applies to intentional killing. I would reject that premise. Indeed, it would be difficult to select a better case than the present for the purpose of demonstrating its falsity. This was a case where a young man with an appalling history of criminal offending used a loaded gun in an armed robbery. He came to close quarters with the surprised victim. As is highly likely to occur in such circumstances, the weapon discharged. For the sake of the appellant's determination to get his hands on a few hundred dollars, an innocent person lost his life. This is a case of murder involving a very high degree of seriousness."

Orders

1. The orders of the Court will be as follows: 1. To the extent necessary grant leave to appeal in relation to the applicant's convictions, other than with respect to ground 5. 2. Dismiss the appeal with respect to the convictions. 3. Grant leave to appeal in relation to the applicant's sentence. 4. Dismiss the appeal with respect to sentence.

Amendments 10 May 2024 - Altered headnote formatting. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 May 2024