R v Batak

Supreme Court of NSW|2022-04-05|Before: Hulme J, Bell P

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

Judgment

HIS HONOUR: The Crown proposes to adduce tendency evidence in this trial. The accused objects.
An overview of the Crown case may be found in R v Batak [2022] NSWSC 424. Putting it very broadly, the Crown alleges the accused was involved in planning a "drug rip", an armed invasion of a home with the object of stealing or robbing occupants of drugs and money. The Crown alleges he supplied Cengiz Coskun with a particular item of clothing (a high-visibility shirt) and a loaded Glock-style pistol, both for the purpose of enacting the armed robbery. The initial plan was that the accused would accompany Mr Coskun in the invasion. However, he declined at the last minute, another male was recruited by Mr Coskun (to the accused's knowledge), and the invasion and armed robbery proceeded as planned. In the course of its execution, an occupant of the home was shot and killed.

The evidence

The evidence upon which the Crown relies are telephone conversations in which the accused was a party. The conversations all occurred after 2 April 2019, when the offences alleged in the indictment are said to have occurred. They include the following items (drawn from the Crown written submissions).

The accused's knowledge and involvement in "drug rips" generally

On 29 April 2019 at 12.13pm, the accused spoke with a person, Kerem Tokdogan. [3] They spoke about Tokdogan's associate who had become paranoid that someone was going to "rip him". The accused said, "They said 'Cuz Straight out of we're going to rip him, we're going to rip him then and there…". And later, "when they hear it, they go 'Cuz straightaway if I was going to rip him, I would have tried it then and there'." He later said, "Like if the boys were planning on doing a rip they usually come and they would tell me first". He assured Tokodogan that nothing was going to happen.

Conversations on 29 April 2019 with Aadil Khan about a drug rip (including admissions)

On 29 April 2019 at 12.05pm, Aadil Khan told the accused: [4] "This bloke called me last night he goes, 'Bro, do you want to go do a rip on this house?' He goes, 'There's these blokes in the house,' this, that. He goes, 'It's a easy one, bro. We should get like thirty, forty K each.' But I sacked him, bro. Full thought of that scenario and I'm like, 'Nah, bro, I don't want to end up in one of those weird scenarios'."
The accused said: "Yeah, those are very ugly scenarios to be in, bro … cause just in a, like split second … it could be the worst decision you've ever done in your life … And what's fucking forty grand for something like that."

The florist safe house conversations on 6-10 May 2019

In a call on 6 May 2019 at 1.21pm, [5] Mr Khan said that he was going to meet up with a mate and take him past the place (a "florist") that a person (who was referred to as the "import") had said was "a hundred percent there". The accused asked what was there, and Khan replied, "He reckons there's three hundred K sitting there in the florist". Later in the conversation the accused asked whether there was "no-one to physically rip anymore, it's just a building that they're, they've got to get into?" Khan said he thought so, and "you go while they're in there at the shop or you go in there while its night-time … but it's in there". The conversation was interrupted by the accused having an incoming call.
The conversation continued on 6 May 2019 at 1.45pm. [6] The accused asked whether the "import" and those people they have been speaking about are all just "spinners and they just like to talk and just nothing happens". Khan said that he had someone who can do the job, but he did not want to send him there if he "comes back with a bunch of roses … imagine that there's nothing". After quite a bit of conversation about whether there might be nothing and it would be a waste of time, with Khan expressing concern about whether he should send his "bloke", the accused said, "you need to know more".
Later, on 6 May 2019 at 6.01pm, [7] there was a further conversation between the accused and Aadil Khan. It included the accused asking: "Bro, the florist is a hundred per cent?" Khan replied, "yeah, he reckons a one hundred per cent guaranteed". The accused said that if he knew it was a hundred percent in the shop he would go with Khan.
A further conversation about the florist occurred at 6.39pm. [8] The accused said that they should "sack it", indicating that originally it started off as "just a bit of cash in the shop", "Now it's a fucking safe house". He queried why these people did not tell Khan from the start, "Hey bro, it's a, it's safe house, one two three". He said, "it sounds like they know a fair bit and they're just fucking chipping off bit by bit for you guys … like just so youse can do it". Khan said, "if we run into something unexpected, you know", and the accused replied, "That's what I mean, cuz. That's the only reason I am thinking, that I don't want the same thing that happened to the other guy happening to you as well … Just over a fucking rip… Different story if it was just a house that had the money in there, yeah, all right, there is no-one there for you to encounter. If it's a safe house cuz, fuck, it's going to be the same scenario as the other place".
Later in the conversation, the accused said, "Cuz this sounds a bit 'how's it going?' whereas the other one before when I got told it, the one that happened … with old mate, yeah?... That one didn't even sound 'how's it going?' That one sounds like 'wow is it that easy?' You know what I mean? … and look how bad that one fucked up". Khan said it could be a whole family living in there and suggested the accused say something in relation to this if he were to "see the bloke there at the gym". The accused responded, "Yeah, I'll suss it out. Let me give him a call. I'm driving there anyway let me call him as well say, 'Come to the gym'."
At 7.36pm on 6 May 2019 [9] there was a further conversation with Aadil Khan in which the accused said he was waiting for Hakan, the "import", to come to the gym. Khan told him that "the place is as big as a mansion, bro … it's huge … it's three places in one, connected it's huge". The accused replied, "let me suss it … Let me see what he says, all right?" (In submissions the Crown contended that this was a reference to the place previously referred to as the florist shop.)
At 8.45pm the same day [10] there was another conversation with Aadil Khan about the same potential premises as a target. The accused told him that he "went and spoke to him … I don't know, bro, sounds just as sketchy as you were making it to be. … If it was that good, they would've got their own boys to go do it".
Twenty-five minutes into a conversation with Aadil Khan on 7 May 2019 at 3.44pm, [11] Khan said he had received text messages from "the import". After telling the accused what they were, the accused interpreted them as meaning "We'll get the thing watched", referring to "the flower shop". He said, "They want someone to watch the flower shop for a couple of days … 'Cause now he's not sure. Dumb cunt hey… everything was just a red flag about that job". Khan said, "normally people tell you to go, like all right, you go in here, it's in this cupboard or it's in this room or, whatever". The accused appeared to concur, describing the information that had been provided in this case as, "This is the address bro … it's a safe house, go and figure it out".
On 8 May 2019 at 5.29pm [12] there was a phone call with Hakan Kutgi in which, on the Crown case, there is further talk about the florist shop. Mr Kutgi referred to being able to "buy the shop for 10 thousand, or you can buy it for 300 hundred thousand, he says". This conversation continued as to whether this was guaranteed. Kutgi later said, "You understand…Monday, thing, we have missed the thing. The men have called, saying there are so good things inside, come and look at the [sounds like] flowers. There are very big flowers, he said".
On 10 May 2019 at 3.05pm [13] there was a further call between Hakan Kutgi and the accused. Kutgi said, "On Tuesday, I said Pops, go and follow it through. Look, I am talking frankly, tell [sounds like] Kay, let her go and look at, I said. If, I said, a ... if she feels right about it, it's okay. But, if they don't have it, [sounds like] they can wait. I said, if, he/she should keep an eye on it, no one, if there is no one coming and going, okay. I said, Let's go and do it, I said. I too will be coming. I said, Huh, I have included myself too in the thing. I have included you too … I, Cem, you, him … four of us go, I said." The accused acknowledged this: "Well, okay".
Hakan Kutgi further said, "Whatever we get, we will share … we can divide it up, I said; divide it into three, four, I said. We can share it amongst ourselves. We won't give much money to the other side, I said."

A safe house with a large quantity of drugs and money associated with "a Persian guy"

There are two conversations, seven weeks apart, which (according to the Crown) appear to cover the same subject matter in terms of the asserted tendency. On 15 May 2019 at 2.49pm [14] there was a telephone conversation between the accused and Aadil Khan. In the context of talking about their mutual need for money to meet their expenses, Aadil Khan said, "I got a full proper rip to do as well, bro". He told the accused he had a female contact whose father is an ice dealer. She had told Khan about a safe house owned by "a Persian guy" that nobody lived in. It would have no more than $100,000 in it but it would have "a shitload of fucking drugs".
Aadil Khan and the accused returned to this subject in a call on 4 July 2019. [15] Khan told the accused how he had told the female contact how he "wanted to go rip this bloke". The woman had suggested that she would call him and when he met with her, Khan should "follow him to where he goes". She said, "you'll find minimum at least three kilos".
The accused had been largely passive, listening to Khan and acknowledging what he was saying, but at this point he intervened and proposed how the drugs and money would be stolen from this person. When Khan asked, "what do you think", after first asking "is she legit" and receiving a positive answer, the accused said, "all right, get her, line it up for next week … I'm not going to go, cuz. You're not going to go. I'm going to send Rami." He also asked Khan, "does she want a cut out of this".
Other active engagement by the accused with the plan included him telling Khan "Line this one up and let's get it done" and "Well go meet up with her tonight … Tell her to call him, and buy off him … Tell her to call and get it off him … And when he comes tonight just follow him home". Khan continued talking about the proposal, including that he would speak to Rami and tell him he would be told a place and time and Rami would have to go there immediately. Khan then raised the possibility of the attempted robbery failing; "The girl will get fucked over and she'll turn on me. … I don't know, man. What, what do you reckon?" The accused replied, "I don't know bro. It's your call."

Asserted relevance

The Crown asserts that the evidence is relevant to: [16] a) Establishing the accused was in the business of committing drug rips for financial gain. b) Establishing the accused had information about who was holding large amounts of drugs and was prepared to act on this to profiteer. c) Rebutting any suggestion that the admissions made by the accused in surveillance device recordings as to his agreement and participation in the armed robbery with Cengiz Coskun were fabricated or exaggerated.
The Crown contends this is all ultimately relevant to establish the accused was culpable for the attempted armed robbery - or "drug rip" - at 103/50-52 East Street, Five Dock, on 2 April 2019.
It is possible the evidence could be admissible on the third asserted basis without it being used as evidence of any tendency, however this was not submitted and was not the way the Crown put its. Accordingly, I will ignore this possible basis of admissibility.

The evidence referred to in the tendency notice

The accused submitted that the evidence referred to in the tendency notice does not relate to conduct preceding the date of the alleged offences. Those of the conversations which pertain to the alleged offences cannot establish a relevant tendency and should be put aside.
The Crown clarified that the evidence pertaining to the alleged offences were listed in the tendency notice in order to disclose the accused's participation in a "drug rip" the subject of the charges. [17] Other evidence then establishes that he had a tendency in that respect.
It is unusual that evidence relevant to establishing the charged conduct was listed in the tendency notice. [18] The evidence that is supposed to be disclosed in a tendency notice is "the substance of the evidence to which the notice relates": Evidence Regulation 2020 (NSW), r 5(2)(a). This can only be construed as a reference to the evidence relied upon to establish the tendency and not the offences charged.
A more fundamental difficulty with the tendency notice is that, regrettably, in purporting to comply with the requirement of the regulation it has been the longstanding practice of the Office of the Director of Public Prosecutions for (ODPP) to unhelpfully list a series of documents. In other words, there is disclosure of where the evidence may be found but no effort is made to describe the substance of it; that is left to the reader to figure out.
A prime example is the listing in the tendency notice of the six intercepted telephone conversations that took place on 6 May 2019 all as "Document 18". The reader is provided with the date, the relevant reference number for each conversation, and a description of what is supposed to be the "substance of the evidence" as simply, "Drug rip florist & surveillance discussion".
The unfortunate result of the further difficulty arising in the present case of the ODPP unnecessarily listing a large number of documents in the tendency notice is that it appears to have distracted the defence from focussing upon the evidence the Crown says is relevant to establishing the asserted tendency. The defence submissions show considerable effort has been expended upon analysing and making submissions about evidence that it need not have. It is not until page 452 of the 672-page Court Book that the first document is found that is relevant to the tendency.

The accused's submissions

The accused submitted that the evidence referred to in the tendency notice does not demonstrate any of the three matters extracted from the tendency notice above (at [26]). [19] It was submitted the evidence does not relate to conduct preceding the date of the alleged offences. What it does comprise is "inarticulate ramblings between the accused and his associates" which post-date the charged offences. [20]
As a general proposition, I accept the Crown submission [21] that there is no requirement that evidence disclosing a relevant tendency must concern past conduct: TB v R [2019] NSWCCA 224 at [87]-[105], particularly the discussion of RH v R [2014] NSWCCA 71 and R v SK [2011] NSWCCA 292.
Perhaps the point sought to be made by the defence submissions was that the evidence comprised conversations in which the accused was involved after the events of 2 April 2019, with an absence of any evidence of actual participation by the accused in the activity discussed. In these circumstances, the conversations were only open to being characterised as "inflated chatter amongst friends, absent anything more". [22]
The defence reply submissions referred to some older authority (R v Beserick (1993) 30 NSWLR 510, R v Dann [2000] NSWCCA 185, R v Fung [2002] NSWCCA 479) in the context of the temporal and post-dating issue. Those cases must be understood in the light of the law as it then prevailed. They are unhelpful for that reason; at best they illustrate how probative value of propensity or background evidence used to be considered absent the benefit of many subsequent authorities on these issues. The more recent case of TWL v R [2012] NSWCCA 57 was also referred to, but it simply provides an illustration of how a court considered an asserted tendency issue that arose upon a particular factual basis. [23] Nothing in terms of principle relevant to the present issue arises from any of these cases.
The criticism of the evidence upon which the Crown relies to establish the asserted tendency, namely that it is based upon assertions by the accused and not by conduct, [24] in reality represents arguments available to be put to the jury as to whether the inference for which the Crown contends should be drawn. The criticism does not have any bearing upon the question of admissibility which must be considered in the manner described in IMM v The Queen at [44], [50].
A further criticism was that the Crown submissions, by including an extract of one of the conversations had misrepresented the state of the evidence. [25] I have read the entirety of the conversation from which the extract was taken, and I am not persuaded there is a misrepresentation. The conversation is capable of conveying that the accused was in the business of drug rips. It can also convey that he was an authority on the subject and that persons who are also engaged in such activity deferred to him.
It was a defence submission that it is difficult to discern what within the evidence supported the asserted tendency as distinct from "general chatter within the criminal milieu". Evidence that referred to circumstances of the offence could have no significant probative value. [26] Again, this arises from the Crown having unnecessarily listed evidence in the tendency notice that did not bear upon the tendency.
It was also submitted that covertly recorded discussions concerning planning to steal drugs, conducting surveillance on safe houses, and discussing the profit that could be made from a drug rip, went to matters that were not relevant to the accused's alleged involvement on 2 April 2019. Specifically, none of these matters bore upon the accused's knowledge of the facts and circumstances of the foundational offence of attempt armed robbery with a dangerous weapon, or upon whether the accused contemplated the discharge of a gun by Mr Coskun. [27]

Crown submissions

The Crown submitted that reliance upon the accused's planning, or discussions of performing, or participating in two further drug rips on safe houses, as well as statements by the accused as to his knowledge of such matters, goes to the probability of whether he participated in the offences on 2 April 2019. Specifically, whether he knew all the likely risks of a drug rip; whether he withdrew from the enterprise by not going with Mr Coskun; and whether based on his involvement in the other matters it was necessary for him to be present as a participant in terms of planning and profiteering. [28]
The Crown made submissions specifically directed to the probative value of the evidence in the categories in which they were grouped and summarised in the written submissions (as replicated, although not verbatim) above.

Conversation with Kerem Tokdogan 29 April 2019

The Crown submitted that the conversation between the accused and Kerem Tokdogan (see above at [8]) was capable of being regarded by the jury as establishing the accused was involved in drug rips; he appeared to have a network of people or associates who came by knowledge of targets for such drug rips; and there were others who would approach him about such matters and he appeared to have some sway over whether action would be taken in this vein or not. [29]

Conversation on 29 April 2019 with Aadil Khan

In relation to the conversation with Aadil Khan on 29 April 2019 about a proposed drug rip (see above at [9]), the Crown submitted there was nothing hypothetical about it. It was capable of demonstrating the accused and Mr Khan were in the market to do drug rips but that the accused was being more cautious if there was an increased chance of there being "blokes" present. The Crown noted that if this call was not admitted for tendency purposes, it would press to adduce it nonetheless as an admission to the extent it includes reference to the accused's knowledge and participation in the events at Five Dock. [30]

Conversations of 6-10 May 2019

The conversations that include reference to a possible drug rip at a florist shop were acknowledged by the Crown to include elements of speculation, hearsay, and some apparent reluctance by the accused to be involved without further information. Nevertheless, it was submitted that these features did not detract from the capacity of the evidence to disclose the asserted tendency. [31]
The last of the conversations, on 6 May 2019, includes what the Crown claims is an admission by the accused which the Crown would tender regardless of admissibility for a tendency purpose.
The defence submission that a jury could not construe these conversations in the manner the Crown will suggest are not persuasive. Concessions made by the Crown as to the conversations including speculation, hearsay and apparent reluctance to be involved without further information do not detract from admissibility. The fact that there is an alternative interpretation is beside the point for present purposes: IMM v The Queen.

The conversations of 15 May and 4 July 2019

As to the final group of conversations, the Crown submitted there was a "high degree of specificity common to the allegation on the indictment". It was not a generalised tendency to commit robberies. It included discussion of various features including the considerable quantity of drugs and or money to be obtained; that the drugs were being kept in a "safe house"; that there were people coming and going and that there was a need to locate an address, conduct surveillance and weigh the risks. [32]
The defence submissions characterised these conversations as involving Aadil Khan telling the accused "stories" about his own participation in drug-related activities. The accused responded only occasioning, but not relevantly. Again, this represents an alternative basis in which the jury could be invited to construe the conversation. The accused played a passive role as a listener during much of the time Mr Khan was telling him about a proposed target of a drug rip but ultimately became active in proposing how it might be carried out and by who. The jury might consider that the accused's preparedness to listen to so much of what Mr Khan was saying, and to then become proactive with various suggestions, may be taken as supporting the proposition that he was in the business and had an interest in "drug rips".

Overall

The Crown submitted the evidence had the capacity to establish a tendency to engage in the business of committing drug rips for profit which went to the probability of facts in issue: [33] a) The accused's knowledge of there being 2kg of cocaine in the Odisho apartment, making the venture worthwhile. b) The accused's participation in the joint criminal enterprise to rob, even though he did not go himself. c) The degree of surveillance likely to have been conducted before the drug rip had been agreed to. d) The accused did not appear new to this type of activity; thus it may be inferred he would have knowledge the occupants may be armed to protect the quantity of drugs and might contemplate that the gun given to Mr Coskun may be discharged in the attempted robbery.
The Crown submitted the fact the accused was in the business of conducting drug rips was highly probative and significant as to whether he participated in, or had knowledge of, the attempted Odisho armed robbery, despite not being present. [34] I am persuaded that the evidence, assuming it is accepted, does have significant probative value in that way.

Unfair prejudice

The accused submitted he was a person with no prior convictions and in that sense a person of good character. (Counsel indicated during oral submissions that it was not intended to raise good character as an issue. [35] ) However, the jury may conclude he was a person of bad character because of the nature of the conversations with his associations about drugs and crime. This might, in turn, impermissibly bolster the Crown case in respect of the offences charged. [36]
It was submitted that the prejudice is incapable of cure by judicial directions. Directions would only draw attention to the evidence and its relevance to the accused. It was further submitted that any direction that the jury put the evidence out of its mind when considering an already complex case against the accused would require the jury to engage in "mental gymnastics". [37]
For those reasons, it was submitted that any probative value the evidence had did not outweigh the danger of unfair prejudice to the accused (s 101). [38]
The Crown has indicated it will edit the recordings of conversations to delete unnecessary references to drug dealing. [39]
The Crown submitted that some of the recordings will be before the jury regardless of whether they are admissible as tendency evidence because they are relevant as admissions to facts in issue. [40]
It also submitted that the evidence spans a discrete period, and concerned a specific purpose, rendering it capable of being isolated for the jury as to the application of specific directions about impermissible misuse. [41]

Ruling

The evidence, if accepted by the jury, is capable of having significant probative value. The fact that the accused was involved in a number of conversations in which he engaged in talk in various ways about carrying out "drug rips" significantly supports the contention that he had the tendency alleged by the Crown.
The fact that this is demonstrated by conversations that took place after the alleged offences of 2 April 2019 is not significant. It is not the sort of tendency that is likely to have suddenly arisen within the accused in the intervening few short weeks. This is especially so given the evidence suggests he was considered an authority on drug rips by his contemporaries; it is unlikely others would defer to his judgment if it was a tendency he had only very recently adopted.
The fact that the defence will contend the conversations merely amounted to inarticulate ramblings by the accused and his associates does not mean that the inference for which the Crown contends is not open to the jury to draw.
A jury would be entitled to consider that the perpetration of "drug rips" in the community is not a common occurrence. It would also be entitled to consider there cannot be very many people who have an interest and involvement in such activities. If the jury accept the accused had the tendency alleged, that tendency is capable of strongly supporting proof of facts in issue in the trial.
The possible prejudice to the accused is apparent. The main risk is that the jury may leap from a conclusion drawn from the tendency evidence to a conclusion of guilt without appropriate consideration of the other evidence specifically bearing upon the latter. However, I am confident that the tendency evidence is sufficiently discrete in both time and subject matter that directions as to permissible and impermissible use may be clearly formulated and comprehended.
There is no real cause for concern about the jury being required to perform "mental gymnastics" as there will be no occasion to ask the jury to ignore the evidence. It is also not apparent how appropriate judicial directions will result in the jury paying greater attention to the material and its relevance to the accused.
I am satisfied that the evidence has significant probative value and that it outweighs the danger of unfair prejudice to the accused.
On the premise that the evidence will be edited as proposed by the Crown, the evidence is admissible.

Endnotes

Tendency Notice, 24 December 2021
Defence written submissions (DWS) [38]
Court Book (CB) 468
CB 468
CB 470
CB 479
CB 500
CB 504
CB 512
CB 515
CB 518
CB 550
CB 560
CB 586
CB 616
Crown written submissions (CWS) 14
CWS [18]
It is not "conventional" - see CWS [18]
DWS [38]
DWS [49]
CWS [19]
Defence written submissions in reply (DWS in reply) [6]
DWS in reply [9]-[15]
DWS in reply [16]
DWS in reply [17]
DWS [56]
DWS [57]-[58]
CWS [20]
CWS [23]
CWS [25]
CWS [26]
CWS [40]-[42]
CWS [43]
CWS [47]
5.4.22, T65.50
DWS [61]
DWS [62]
DWS [63]
DWS 47
DWS 47
DWS 47(v) 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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