R v Batak

Supreme Court of NSW|2022-03-31|Before: Hulme J

Solicitors: Solicitor for Public Prosecutions Fahmy Lawyers File Number(s): 2019/260254

Crown case

The Crown case is that in the early hours of 2 April 2019 at the accused's home, the accused discussed with Cengiz Coskun a plan for a robbery whilst armed with a dangerous weapon to be committed at the home of a drug dealer in Five Dock. The Crown Prosecutor described this plan as "a drug rip". The accused also provided a loaded gun and an item of clothing to Mr Coskun for use in the proposed robbery. At the last minute the accused declined to participate physically in the plan himself. Mr Coskun told him that another person would take his place. He also said, "I'll get something out of it and I'll bring it to ya".
At about 3.45am on 2 April 2019, Mr Coskun and another male entered apartment 103 at 50-52 East Street, Five Dock. It was a small two-bedroom apartment on the first floor of a modern four-storey building. The intruders climbed up to the balcony and entered the living room through unlocked sliding doors. The occupants of the apartment were John Odisho and Sargon Odisho. They were each in their respective bedrooms and John Odisho's girlfriend, Ms Larissa Mitchell‑Wiszniewski, was with him.
Sargon Odisho was a drug dealer, and he was in possession of a substantial quantity of cocaine ($500,000 worth), which he was both selling and storing for other individuals. He was also in possession of a quantity of MDMA and a hydraulic press for "re-bricking" powdered cocaine into a solid brick form. He also had firearms: a revolver, a pistol, and a shotgun. John Odisho was involved in drug supply activity on a smaller scale.
The Crown case is that there was resistance to the attempt to carry out the robbery. (This could not have been surprising.) In response to this resistance, one of the intruders discharged a handgun 10 times into the bedroom of Sargon Odisho while he and John Odisho were inside it, and Sargon Odisho fired his revolver out towards the intruders. John Odisho was struck in the head by a bullet fired by one of the intruders, and later died as a result. Sargon Odisho also received two gunshot wounds to his arm, and one of the intruders, Cengiz Coskun, received a wound to his left lower flank from shotshell discharged by Sargon Odisho.
The trial of Cengiz Coskun has recently concluded. An issue in that trial was whether one or both intruders were armed with a handgun. Larissa Mitchell‑Wiszniewski said from within John Odisho's bedroom she saw two guns - one silver and one black - with each intruder armed. That evidence was capable of acceptance, but there was no crime scene evidence to confirm its correctness given only one gun was fired by the intruders.
The Crown case in Mr Coskun's trial was that one of the intruders fired the fatal shot and it did not matter which given that they were involved in a joint criminal enterprise. That was appropriate, both legally and on the evidence admissible in that trial. In the accused's trial the Crown has additional evidence that was not admissible against Mr Coskun (covertly recorded statements made by the accused subsequent to the alleged offending) which supports the proposition that it was Mr Coskun who was the shooter. [3]
Someone in the apartment called out (with obvious reference to John Odisho), "you fucking killed him bra, you fucking killed him", and the two intruders fled via the balcony. [4] Mr Coskun retreated to his car parked in a nearby street and from there drove directly to Auburn Hospital to seek treatment for his shotshell injury.

Section 18(1)(a) of the Crimes Act 1900 (NSW)

Section 18(1)(a) defines murder as follows: "Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years."

The liability of the accused for murder

The Crown filed and served a document [5] outlining various ways the accused is contended to be liable for the murder of John Odisho. The document (with respect) lacked clarity but submissions clarified the contention that the accused is liable on three bases.

Constructive murder by participation in a joint criminal enterprise
For constructive murder, the Crown contended the accused was a participant in a joint criminal enterprise to commit a crime punishable by imprisonment for life or for 25 years; namely, robbery whilst armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act. During the attempt to commit that offence, an act of one of the participants in the joint criminal enterprise caused the death of John Odisho. [6]
It was not contended that the accused fired the fatal shot, or even that he was present at the scene; however, the act could be attributed to him because it was carried out by a co-participant in the joint criminal enterprise.
The Crown contended the accused's acts of participation in the enterprise entirely preceded the attempt by Mr Coskun and the unknown male to commit the foundational crime.

Extended joint criminal enterprise
The Crown contended the accused was a participant in a joint criminal enterprise to commit an offence involving entering premises and stealing property therein. Further, he contemplated the possible commission of an act involving the intentional infliction of grievous bodily harm or death occurring. [7]
It was not clear why the Crown characterised the joint criminal enterprise for this formulation as being to commit an offence of specially aggravated enter with intent to steal, contrary to s 111(3) of the Crimes Act. The evidence upon which the Crown relied described an offence of robbery whilst armed with a dangerous weapon. Raising the possibility of a different offence for the purpose of this form of alleged liability would have added complexity to directions given by the trial judge and potentially confuse a jury.
Again, the Crown contended the accused participated in the joint criminal enterprise without being present at the scene of the shooting.

Accessory before the fact to constructive murder
Under this formulation, the Crown contended the accused intentionally encouraged and assisted the commission of an offence of robbery whilst armed with a dangerous weapon by providing a gun to Cengiz Coskun, knowing that it was to be used for such an offence. It was further contended that he contemplated the possibility that the gun could be discharged in the commission of the robbery, resulting in grievous bodily harm or death.
The Crown's Statement of Criminal Responsibility put this third suggested form of liability as "further in the alternative".

Complexity

An issue raised in the written submissions for the accused, but not pressed as a point of contention on the application to quash or stay, was that "the three-fold bases of liability for murder, all of which are based on complex principles of complicity, will result in a very complicated series of directions and will be extremely difficult for a jury of laypersons, unused to the subject matter of the criminal justice system, to follow". It was further contended that confusion would be inevitable and would "jeopardise the safety of any verdict".
A further point raised was that the difference between the three bases involve distinctions of such nuance and subtlety that it would be unfair to expect jurors to comprehend and apply them. [8]
Reference was made in the written submissions to R v Stokes; R v Difford (1990) 51 A Crim R 25 at 35-37; R v Clough (1992) 28 NSWLR 396 at 400; and R v Tangye (1997) 92 A Crim R 545 at 556, where comments were made in the Court of Criminal Appeal about the Crown creating confusion by unnecessarily relying upon multiple forms of liability. [9]
In the present case, it was not clear why the Crown would want to propose a complex array of forms of liability. Prosecutions for homicide in this Court are complex for various reasons. They should not be made more complex by the Crown relying upon multiple forms of liability where it is not essential to do so.
The multiple forms of liability proposed by the Crown create a considerable degree of complexity and potential for confusion. It can be seen from the summary above that a common essential component was the allegation the accused was involved in the formulation of a plan with Cengiz Coskun to rob a drug dealer at gunpoint. A further common essential component was the accused's alleged contemplation of the risk of gunfire in the course of executing that plan.
To establish liability on the extended joint criminal enterprise basis, the Crown would have the additional burden of proving beyond reasonable doubt the accused contemplated the possible intentional infliction of grievous bodily harm or death. It was difficult to understand what benefit this alternative formulation was to the Crown when it involved proving something in addition to the essential elements of the joint criminal enterprise avenue to liability. Further, this formulation could require manslaughter being left to the jury because of the element concerning foresight of intent. [10] (The principles relating to the latter are usefully summarised in Martinez v R; Tortell v R [2019] NSWCCA 153 at [78] (Macfarlan JA).)
The constructive murder by participation in a joint criminal enterprise basis involved an issue potentially productive of confusion for a jury in that the alleged acts of participation by the accused in a joint criminal enterprise were entirely antecedent to the attempt to execute the plan. This is not to say that it was not an available pathway but rather to question whether it is an appropriate and necessary one of for the Crown to maintain.
It is, of course, a matter for the Crown to formulate the basis upon which it contends an accused is criminally liable for an alleged crime and judges remain distanced from this exercise of prosecutorial discretion. In aid of the administration of justice, however, Judges are responsible for simplifying the directions given to a jury to a degree that may be readily understood by its lay members: see, for example, Hargraves v The Queen; Stoten v The Queen [2011] HCA 44; 245 CLR 257 at [42].
When announcing my ruling as to the outcome of these motions on 5 April 2022 I provided a short preview of my observations on this issue.
When the indictment was presented the following day upon the empanelment of a jury, it was announced the Crown case on Count 1 would be confined to an assertion the accused is liable as an accessory before the fact to constructive murder.
This rendered some of the issues raised on the motions redundant. Those issues had been determined adversely to the accused, but the following will be confined to the sole basis upon which the Crown case is to be put.

Motion to quash or permanently stay

Mr Woods of counsel argued the motion on behalf of the accused. While the written submissions previously filed were quite wide-ranging, he confined the argument to three bases. [11] There was some overlap in the argument supporting each.

The accused was not present and so the act causing death was not done by the accused or by some accomplice "with him". [12]
It is not clear whether this argument was advanced only in relation to the "constructive murder by participation in a joint criminal enterprise" pathway, or also extended to the "accessory before the fact to constructive murder" pathway. However, it had no merit in either case.
The argument is based upon a strictly literal construction of the words in s 18(1)(a) of "by the accused, or some accomplice with him or her". That construction cannot be sustained because it pays no heed to principles of complicity.
Counsel for the accused was able to locate only one case in which this issue has been raised: R v Lew [2003] NSWSC 1073. Having drawn it to the court's attention, counsel then sought to argue it was wrong on the construction of the term "accomplice with him or her" in s 18(1)(a). Regrettably, the construction issue does not arise in this case and nor should it have arisen in that case. Both cases are concerned with complicity principles in respect of an alleged offender who is not present at the scene of the crime.
The joint criminal enterprise doctrine attributes an act of a co-offender to a co-participant in the enterprise: Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 at [72] (McHugh J); IL v The Queen (2017) 262 CLR 268; [2017] HCA 27 at [2] (Kiefel CJ, Keane and Edelman JJ), [61] (Bell and Nettle JJ), [105] (Gageler J), [145] (Gordon J). It matters not whether the co-participant is present. On the authority of Dickson v R [2017] NSWCCA 78 at [41]-[54] (Bathurst CJ, Johnson and Fullerton JJ agreeing), presence is not required for participation in a joint criminal enterprise.
There was a component of the argument in support of this issue that involved ignoring the binding authority of R v Sharah (1992) 30 NSWLR 292. There has been controversy as to the correctness of the third element of constructive murder as referred to in the judgment of Carruthers J at 297F: R v Batcheldor v R; Walsh v R [2014] NSWCCA 252 at [128]-[132]; IL v R [2016] NSWCCA 51 at [34]-[37] (Simpson JA); IL v The Queen at [89] (Bell and Nettle JJ); [102] Gageler J; [156] Gordon J. However, as Simpson JA observed in IL v R at [37], R v Sharah remains binding on trial judges until overruled. In those circumstances the submissions were purely hypothetical and need not be ruled upon.

The Crown case does not prove an agreement of the accused to commit the foundational offence. [13]
The submissions in support of these two bases of the challenge to the Crown case overlapped and so it is convenient to deal with them together.
The first challenge contrasts the relationship between the accused and Mr Coskun and between the accused and the unknown man. The Crown case purports there was an agreement between the accused and Mr Coskun as a result of which the acts of Mr Coskun could be attributed to the accused. No such agreement existed between the accused and the unknown man. If it was the unknown man who fired the fatal shot, it could not be attributed to the accused. [14]
The second part, like the first, relies upon an asserted deficiency of evidence available to the Crown.
It was submitted that paragraph [103] of the Crown Case Statement represented the high point of the Crown case for the contention that the accused was intending to participate with Mr Coskun in a robbery. That paragraph refers to a passage in a covertly recorded conversation on 28 June 2019 in which the accused recounted to another person what occurred on 2 April 2019. It included reference to a plan that would yield money but from which at the last-minute the accused withdrew. The accused recounted how Mr Coskun rang someone else and then said, "Don't worry, I've got someone else" and "I'll get something out of it and I'll bring it to ya". Counsel for the accused submitted this did not evince an agreement, only an awareness of what was proposed.
Paragraphs of the Crown Case Statement surrounding that which counsel emphasized [15] include statements made by the accused to the effect that Mr Coskun had told him of the proposed location of the robbery and how the premises would be entered (via the balcony). Mr Coskun told him it would be "in and out nice and quick". The accused said Mr Coskun was aware that he was "dead broke" and needed money. The accused recounted how he supplied Mr Coskun with a fluoro work shirt which Mr Coskun wore during the robbery. He also recounted supplying a loaded gun, a "mini-Glock", to Mr Coskun which was the same kind of gun used to shoot the deceased. To the persons he was speaking, the accused said: "I promise to God, I go, I was gonna go, yeah. I was this close, literally this close. I was getting ready, we were gonna go, we loaded it up, I got my clothes, everything, we were gonna go."
This is sufficient for the Crown to make out a case that the accused had agreed with Mr Coskun to carry out an offence of robbery whilst armed with a dangerous weapon. The fact that he changed his mind and declined to go does not alter that fact. It would be open to the Crown to submit to the jury (as was submitted on the application [16] ) that there was implicit acquiescence by the accused in the joint criminal enterprise being carried out by utilising another person in his place. The Crown contrasted this to a case in which there had been a different and thereby new enterprise pursued by those responsible for the physical acts: Qaumi, Farhad v R; Qaumi, Mumtaz v R; Qaumi, Jamil v R [2020] NSWCCA 163 at [258]-[262]. In this case, as the Crown submitted, the plan formulated between the accused and Mr Coskun was the plan that was executed; "it's just that the muscle had changed". [17]
There was some discussion during the submissions about whether the accused may have "withdrawn". The short point is that there is no evidence on the Crown case that raises this as a reasonable possibility. The principles are discussed in R v Tietie (1988) 34 A Crim R 438 at 445-447 and Tierney v R [2016] NSWCCA 144 at [19].
The argument otherwise advanced in relation to these overlapping issues was that the Crown could not prove which of Mr Coskun and the other intruder fired the fatal shot. The Crown did not even contend that the gun supplied by the accused to Mr Coskun fired the fatal shot. It was submitted by counsel that the Crown needed to prove (1) that Mr Coskun was the shooter and (2) that he used the gun received from the accused. [18]
As to the first point, I do not understand the relevant principles of complicity to exclude inculpation of the accused in circumstances where the person with whom he was complicit, to the accused's knowledge, engaged another person to further assist in carrying out the venture from which the accused had not effectively withdrawn, but had previously agreed to, counselled or procured.
As to the second point, if Mr Coskun fired the fatal shot it would not matter what gun he fired. If (unlikely as it may seem) he availed himself of another gun by choice or necessity, the discharge of that other gun would remain an act within the realms of the agreement or the contemplated possible acts incidental to the joint criminal enterprise.

Ruling

For the foregoing reasons I ruled that the motion to quash the count of murder, alternatively to permanently stay the proceedings on the count of murder, be dismissed.

Endnotes

5.4.22, T52.35
31.3.22, T27.20
Support for the proposition may also be drawn from the likelihood Mr Coskun was standing in the doorway at the time he received a gunshot injury; that position being consistent with where the intruder who was firing a gun was standing. This is based upon the likely location in his bedroom where Sargon Odisho was when he was firing a gun towards the intruders and the fact the expert evidence was that Cengiz Coskun was 40-60cm away from Mr Odisho's gun when he was struck by shotshell to the left flank.
Evidence of a neighbour, 28.2.22 at T289
"Statement of Criminal Responsibility for the Offences"
"Statement of Criminal Responsibility for the Offences" at [6]-[10]
Crown's Statement of Criminal Responsibility at [11]
Defence first written submissions at [32]-[33]
The examples discussed were of joint criminal enterprise where the Crown could prove the act of the accused constituted the offence charged or extended joint criminal enterprise where the crime was not incidental to the crime agreed. However, the point has broader application.
31.3.22, T13
31.3.22, T26.42
31.3.22, T15.17
31.3.22, T14.38
31.3.22, T23.29
Crown Case Statement [100]-[107]
31.3.22, T33-34
31.3.22, T34.45; 35.42
31.3.22, T26 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: 30 May 2022

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