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File Number(s): 2019/00260254

Publication restriction: Nil

JUDGMENT

1. On 1 December 2025 the accused, Cem Batak, was arraigned on a charge that on 2 April 2019 at Five Dock he murdered John Odisho. He pleaded not guilty and a trial was held.

2. The trial proceeded by Judge alone, in accordance with an order to that effect made by Justice Yehia on 6 June 2025.

3. The case presented by the Crown against Mr Batak was an allegation of constructive murder, which is defined in s 18 of the C**rimes A**ct 1900 (NSW) as:

Murder shall be taken to have been committed where the act of the accused… causing the death charged, was … done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him … of a crime punishable by imprisonment for life or for 25 years.

The foundational offence alleged, of robbery, armed with a dangerous weapon, a firearm, is punishable by imprisonment for 25 years.

4. The Crown allegation against Mr Batak and the elements of the offence charged which the Crown must prove beyond reasonable doubt are:

5. Mr Batak agreed with Cengiz Coskun that Mr Coskun and initially himself, and then another unknown man, would rob, armed with a gun, the occupants of the deceased, Mr Odisho’s, apartment of drugs.

6. That pursuant to that agreement Mr Batak provided Cengiz Coskun with a loaded mini Glock gun, with the intention that it would be used in the armed robbery and as an act of participation in the armed robbery.

7. Mr Batak gave Mr Coskun a high visibility shirt, as an act of participation in the agreed armed robbery, and as Mr Coskun had requested for use in the commission of the armed robbery.

8. That Mr Coskun and another man attempted to commit the agreed armed robbery and that during that attempted armed robbery Cengiz Coskun shot John Odisho with the Glock gun provided by Mr Batak, causing John Odisho’s death.

9. As is his right, Mr Batak put the Crown to proof on all the elements of the offence charged which the Crown must prove beyond reasonable doubt.

10. The Crown case against Mr Batak was that he was a party to a joint criminal enterprise with Cengiz Coskun to commit the armed robbery particularised above. I direct myself as follows in respect of a joint criminal enterprise.

11. A joint criminal enterprise is an agreement between two or more people to carry out a particular crime. The agreement need not be expressed in words, and its existence may be inferred from all the facts and circumstances surrounding the commission of the offence which are proved by evidence. The agreement need not have been reached at any particular time before the offence is committed, provided that at the time the crime is committed the participants in the agreement have agreed that the crime should be committed by any one or all of them.

12. The Crown must prove both the existence of the joint criminal enterprise alleged and the participation in it by the accused.

13. In addition, I direct myself that in this trial the Crown must prove beyond reasonable doubt that Mr Batak did not withdraw from the joint criminal enterprise alleged.

14. The law is that if a person who is a party to a joint criminal enterprise withdraws from the enterprise, he ceases to be criminally responsible for the crime if the other members of the enterprise go on to commit the crime after his withdrawal. There is no onus on the accused to establish that he withdrew from the joint criminal enterprise.

15. To withdraw from a joint criminal enterprise to commit a crime, a person must take such action as he can reasonably perform to undo the effect of his previous participation in the enterprise and thereby to prevent the commission of the crime. What is reasonable depends upon all the circumstances.

16. This may involve, if it is reasonable and practicable to do so, the person communicating the fact of his withdrawal, verbally or otherwise, to the other members of the joint enterprise, in sufficient time before the crime is committed, trying to persuade the other members not to proceed, notifying the police or victim of the intended crime, and taking all reasonable and practicable steps to prevent the commission of the crime and frustrate the agreement to commit the crime.

17. The Crown can prove that the accused did not withdraw from the joint criminal enterprise by proving beyond reasonable doubt that the accused either did not intend to withdraw from the enterprise, or if he did so intend, the accused did not take such action as he reasonably could to prevent the others from proceeding to commit the crime.

18. Any action taken by the accused must be capable of being effective in preventing the crime, even if the action fails to frustrate the commission of the crime.

19. The Crown must also prove beyond reasonable doubt that the alleged act of Cengiz Coskun of shooting John Odisho, thus causing his death, was a voluntary act by Mr Coskun.

20. As is his right, the accused did not give evidence in the trial, although he tendered documents during the Crown case. I direct myself that the accused had no obligation to give evidence, because he bears no onus of proof and he is presumed to be innocent unless and until the Crown proves his guilt beyond reasonable doubt by the evidence adduced by the Crown.

21. I cannot draw any adverse inference against Mr Batak from the fact that he did not give evidence in his trial. I cannot use his not giving evidence as an admission of his guilt. I cannot draw any inference or reach any conclusion based upon him not giving evidence. I cannot use the fact that Mr Batak did not give evidence to fill any gaps that I may consider exist in the Crown case, or to strengthen the Crown case or assist the Crown to prove its case beyond reasonable doubt. I cannot use Mr Batak’s not giving evidence against him in any way in my deliberations. I must not speculate about what Mr Batak might have said if he had given evidence. Pursuant to that direction I have not done any of those things.

22. The Crown relied on a circumstantial case, although in addition the Crown relied on statements of Mr Batak which the Crown asserted were admissions by him in respect of the offence charged.

23. In terms of the Crown’s circumstantial case I direct myself as follows.

24. Individual basic facts need not be proved beyond reasonable doubt. I consider all the facts established by the evidence together, taken as a whole, not looking at facts in isolation, and decide whether from those facts I can conclude beyond reasonable doubt proof of each element and Mr Batak’s guilt of the offence charged.

25. If such a conclusion does not reasonably arise from the established facts then I must find the accused not guilty. I can only draw the conclusion of proof of the elements and Mr Batak’s guilt of the offence charged if it is a reasonable conclusion to draw from the facts and if it is the only reasonable conclusion that can be drawn from the combination of established facts. If there is any other reasonable conclusion which can be drawn from the facts, which is inconsistent with the accused’s guilt, the Crown will not have proved its case beyond reasonable doubt and I must find the accused not guilty.

26. Drawing a conclusion from a set of established facts or circumstances must be done by a logical and rational process of reasoning. It cannot involve assumptions, speculation, conjecture or supposition.

27. Counsel for Mr Batak submitted that the Crown had not excluded all reasonable alternative hypotheses available and consistent with the evidence, that is the Crown has not proved that Cengiz Coskun shot and killed John Odisho, that Mr Batak agreed with Cengiz Coskun to commit an armed robbery, and that Mr Batak did not withdraw from that agreed enterprise.

28. I direct myself that there is no obligation on the accused to adduce evidence to prove or support the hypotheses advanced by his Counsel. It is sufficient if such hypotheses can be reasonably derived from the evidence in the Crown case. There is no standard of proof on the accused in this respect. All that is necessary is that the hypotheses be such as to raise a reasonable doubt that the accused has been proved guilty. It is not incumbent on an accused to establish that some inference other than guilt should reasonably be drawn from the evidence: Wiggins v R [2020] NSWCCA 256.

The death of John Odisho

25. The death of John Odisho was not a fact in dispute, although it was in dispute that the Crown had proved that Cengiz Coskun shot him and caused his death and that he shot Mr Odisho with a gun provided by Mr Batak.

26. By way of introduction, as at 2 April 2019 John Odisho and Sargon Odisho lived in an apartment, 103/50-52 East Street in Five Dock, on the first floor of the building. They occupied separate bedrooms in the small two bedroom apartment.

27. Tendered in the trial were agreed facts from Mr Batak’s previous trial about the medical treatment of John Odisho. They included that Mr Odisho had a gunshot entry wound to the left side of his head and exit wound behind his right ear. At hospital, he was found to have damage to arteries in the middle and frontal lobes of his brain. His injuries were assessed as unsurvivable. He died at 19:47 on 2 April 2019. Dr Rebecca Irvine performed the autopsy on John Odisho. She said the cause of his death was a gunshot wound to his head. She said the range of the shot was indeterminate.

The evidence in the trial

28. There was undisputed evidence that police found on the roof of the apartment building, after the shooting, a bag, inside which were various containers, with fingerprints and/or DNA of Sargon Odisho, which held just over 2 kilograms of cocaine in total, a bag containing 173 grams of 3,4-MDMA, and four envelopes, two of which had fingerprints of Sargon Odisho, containing $16,500 in cash. The Crown case was that the drugs were the motive for the robbery of Sargon Odisho in the apartment.

Larissa Mitchell‑Wiszniewski’s evidence

29. Larissa Mitchell‑Wiszniewski was on 1 and 2 April 2019 in a relationship with John Odisho and was in his room in the apartment with him on that night and early morning.

30. Sargon Odisho was in the apartment at the time of the alleged incursion and shooting, but refused to give evidence in the trial when called as a witness by the Crown. Some out of court statements he had made to police in the apartment were admitted but their use was limited, pursuant to s 136 of the E**vidence A**ct 1995 (NSW) (‘Evidence Act*’*), and they were not relied on for their truth. As Sargon Odisho’s statements in that police interview were contradicted by other acceptable evidence in the trial I do not place any reliance on those statements by him to police.

31. Ms Mitchell‑Wiszniewski’s evidence was, in summary, as follows.

32. She and John Odisho went to bed in his bedroom around or before 1 AM on 2 April 2019. She locked the door to the bedroom as it was John Odisho’s practice to do so. They engaged in sexual activity. This was not gratuitous evidence but was relevant to evidence the Crown relied on as to how Ms Mitchell‑Wiszniewski’s DNA may have been transferred by John Odisho to clothing worn by Cengiz Coskun.

33. Ms Mitchell‑Wiszniewski woke at about 3:40 AM to sounds coming from the hallway of someone in the apartment, banging around. She saw John Odisho was awake, and his facial expression looked confused. He got out of bed and went over close to the door and leaned towards it, as if he was listening. She moved forward to the end of the bed, and John Odisho motioned with his hand to indicate she should stop and stay where she was.

34. She heard voices, and what sounded like Sargon Odisho saying “I don’t have” or “I don’t know”. He had quite a distinctive voice.

35. The noise was quite close to the door, ongoing and increasing. The voices were male. The bedroom door was being pushed open and John Odisho was leaning and pushing against the door to try to keep it closed.

36. Ms Mitchell‑Wiszniewski was near the end of the bed. She could see glimpses through the bedroom door of people wrestling, as the door was being pushed open and closed. She also saw in the hallway a pistol, like a handgun, being held. It looked to be black. She saw the hand and wrist holding the gun and it appeared to have a dark coloured long sleeve on it.

37. The bedroom door burst open. John Odisho went out of the room. Ms Mitchell‑Wiszniewski went back towards the pillows and bedhead. She could no longer see through the doorway.

38. A man came into the bedroom. He came about halfway along the bed until he was about a metre or so from her. He had a silver handgun in his hand and he pointed it at her head. That gun looked larger than the first gun that she saw.

39. When she made a statement on 2 April 2019 to Detective Denise Bozikis, she was shown Detective Bozikis’ police gun, which was a Glock 22 model, and said she believed the silver gun she saw was larger than the detective’s gun.

40. Ms Mitchell‑Wiszniewski said the man who came into the bedroom was of average to regular build and average to tall height. He was wearing all dark or black clothes and he had something dark tied around his face, covering his nose and mouth so only his eyes were visible. She said his clothes were a long-sleeved top and dark pants. She was later cross-examined to the effect that she had not mentioned in her statement that the man who came into the room was wearing pants. She said she had told Detective Bozikis that his top and pants were black and Detective Bozikis had put into the statement that he was dressed all in dark or black clothes. She said he was head-to-toe in dark clothing. She said if he had not been wearing pants that would have been a very distinct memory. In my view that line of cross-examination, which was relied on by Counsel for Mr Batak to seriously challenge the credibility of Ms Mitchell‑Wiszniewski’s evidence, did not have that effect and she convincingly addressed that topic.

41. Ms Mitchell‑Wiszniewski said the man with the gun stood in the room for about a minute. He motioned up and down with the gun, which she took to mean she should not move or do anything. Then he left the room.

42. As soon as he left the room, within seconds, there were gunshots in the hallway. Ms Mitchell‑Wiszniewski saw flashes of light and heard around five to six gunshots. She could not see anything through the bedroom door other than flashes of light because she was still near the bedhead. She heard Sargon Odisho yell “Johnny, Johnny” and “call an ambulance”. He came around the bedroom doorway and said to call an ambulance. He had blood on him. He said that John had been shot.

43. Ms Mitchell‑Wiszniewski found her phone and ran to the balcony of the apartment to get reception. She saw John lying on his back halfway into Sargon Odisho’s room.

44. When asked about the lighting in the bedroom, which was an issue related to her observations, she said when she woke up she could see John’s eyes were open and his facial expression, when he got out of bed she could see what he was doing and wearing and his gesture to her to stay put. She said the door was still closed at that point. She could see things but could not say exactly what colour they were. When John Odisho left the room the bedroom door was open and there was another light source coming from the rest of the apartment, although she could not say what that light source was, but the bedroom became brighter.

45. In cross-examination she said when she saw the black handgun in the hallway she was about two metres from it, three maximum. She agreed she saw fleeting glimpses of it. She maintained it was black.

46. She was cross-examined about the level of light in the bedroom in which she made her observations, the colour of the gun she described as silver and the black handgun. She agreed that when she woke up the bedroom and bathroom lights were off and there were no lamps in the bedroom. She said her eyes were adjusted enough to see that John Odisho was awake and he got out of bed. She was asked about having said in her statement made on 2 April that when they woke up the room was “pitch dark” because the light was off. She said “pitch dark” or “pitch black” were not words she would have said.

47. Detective Bozikis, who took the statement from Ms Mitchell‑Wiszniewski, said “pitch dark” would have been the words used by Ms Mitchell‑Wiszniewski though the words were not in the notes the detective made to assist her in preparing Ms Mitchell‑Wiszniewski’s statement.

48. Counsel for Mr Batak submitted that Ms Mitchell‑Wiszniewski’s evidence of the identification and description of the man in the bedroom, his clothing and the two guns she said she saw was unreliable, and that I should direct myself to that effect pursuant to s 165 of the E**vidence Act.

49. I direct myself that evidence of identification of people, clothing and objects may be unreliable, and that witnesses who give evidence of such may be well-intentioned, honest and confident but mistaken about their evidence.

50. That was one submission made by Counsel; that Ms Mitchell‑Wiszniewski being consistent in her account did not mean it was reliable, that repetition of an inaccurate observation does not make it more reliable.

51. Counsel submitted that the circumstances which made Ms Mitchell‑Wiszniewski’s evidence unreliable were the lighting conditions in the bedroom, her position on the bed from which she viewed what was happening in the hallway, the brief glimpses she had of what was happening in the hallway, with her view partially obstructed by John Odisho in the bedroom doorway, the chaotic, dynamic and quick circumstances of the incident and that she admitted experiencing panic and adrenaline.

52. Counsel submitted that Ms Mitchell‑Wiszniewski did not answer questions about the lighting conditions in which she made her observations, but rather made assertions about what she could see, at times in her evidence she acknowledged uncertainty about, for example not seeing fluorescent clothing [in the hallway] and whether the gun she saw was silver, because it was dark in the room [although she maintained the gun was definitely silver].

53. Counsel relied on the use of the words in her statement to Detective Bozikis that the room was pitch dark, [although as I have noted she disputed they were her words]. Counsel relied on Ms Mitchell‑Wiszniewski having been aware from having given evidence in Mr Batak’s previous trial that lighting conditions were an issue and she had reviewed the transcript of her previous evidence. Counsel relied on the appearance of Sargon Odisho’s room in darkness in Exhibit 8, being extracts from a video taken by police walking through the apartment, and on still photographs from a video of police in the street at Auburn inspecting the Corolla driven there by Cengiz Coskun (Exhibit 9). I am of the view that what police could see in the street at Auburn does not assist in my deciding what Ms Mitchell‑Wiszniewski could see in a dark room in the apartment at Five Dock.

54. Counsel relied on Ms Mitchell-Wiszniewski having heard five or six shots when there were 16 rounds fired, and that she was unable to describe how the man came into the bedroom and John Odisho left the room through the narrow entrance to the room.

55. Counsel also relied on Ms Mitchell‑Wiszniewski having made no mention before her evidence-in-chief in this trial that the man in the bedroom was wearing pants. I have already observed that she convincingly addressed that issue.

56. Ms Mitchell‑Wiszniewski impressed me as an intelligent witness. She was not prone to embellishment or exaggeration but rather, made careful qualifications about what she saw and did not see. I accept that witnesses can be confident and honest but mistaken about their evidence, particularly with respect to identification. Having observed Ms Mitchell‑Wiszniewski give evidence over two days, I assessed her as not a confident but mistaken witness, but rather a careful and intelligent witness. Her descriptions of what she could see in the room were convincing. As the tribunal of fact bringing common sense to my task I accept that she was able to distinguish objects in the dark bedroom. I accept that she was able to see the gun in the hallway where she said there was a light source. I accept she was able to see through the bedroom doorway into the hallway from the position where she was sitting on the bed, which she marked in a photograph in Exhibit B1. I accept her evidence that when the man came into her room there was a light source from outside the bedroom and she could see. Ms Mitchell‑Wiszniewski maintained her evidence in cross-examination, convincingly and credibly, about the black gun, the silver gun, their relative sizes, and the man in black clothing in her room. Her evidence had no credibility issues so there was no reason to not accept her evidence, and those many reasons I have just identified to accept and rely on her evidence.

The evidence of neighbours

57. The evidence of several neighbours of Mr Odisho from the previous trial of Mr Batak was tendered in evidence by agreement in this trial. Some of the neighbours’ evidence was the subject of agreed facts in the previous trial, which were tendered in this trial. I will recount some, but not all, of the neighbours’ evidence, as some was brief and repetitious.

58. Andrea Gainge lived in an apartment in the building next to John Odisho’s. She woke up to a man yelling. He sounded like he was pleading and scared, repeating “please”, “stop” and “don’t”. She dialled 000. She heard gunshots, more than five. She was not sure how many there were. They were fast in succession.

59. After the gunshots she heard a man yelling something like “hurry up”, “let’s go, we’ve got to go”. She thought that was a different voice from the voice she heard earlier, but could not say so definitively.

60. Joshua Tinning lived in the same apartment as Andrea Gainge. At about 3:40 AM he heard aggressive yelling between multiple men. After a couple of minutes he heard a male voice, shaken and worried, saying “don’t don’t stop stop help help” in a desperate manner. He heard three gunshots, then a slight pause then two further gunshots.

61. Then he heard a voice with a Middle Eastern accent, saying “you fucking killed him bra you fucking killed him”. As he called 000 he heard a different voice saying “run, run, gotta go”. He was not confident but thought it was one of the initial voices he had heard yelling.

62. Dominic Bassos lived in a unit in the same building as John and Sargon Odisho. His apartment, 203, was above theirs (103). On 2 April 2019 he got up at 3:30 AM to prepare to go to work.

63. He had his balcony door open to let cigarette smoke out. He was in his bedroom and heard banging downstairs like there was a struggle going on, or slamming doors or furniture being pushed over, and he heard screaming, two male voices.

64. Then he heard gunshots, about five or six, in succession, one after the other. Looking out of his window, he saw flashes of light from the bedroom below his each time the gun was fired.

65. After the shots were fired he went on to his balcony. He saw a male of large build wearing a yellow fluorescent coloured long-sleeve hoodie and dark long pants jump down from the balcony of 103 onto a retaining wall, and then a second male jump from the balcony onto a tin roof covering a fire hydrant alcove. The second man was of thinner build and had dark pants on. The man in the yellow fluorescent top looked back to the other man, and he had his face partially covered, to just above his nose. The men ran towards Lyons Road and turned left into Lyons Road West. Then Mr Bassos heard a woman (whom I infer was Ms Mitchell‑Wiszniewski) come out onto the balcony of 103 and speak on the phone.

66. He said a few days before that incident he had seen a man sitting in a Toyota Camry parked outside the apartment complex, holding a mobile phone as if filming or taking photographs, in the direction of the apartment beneath him. He described him as a man of Middle Eastern appearance, in his late 20s to 30s, of thin to medium build, with a full beard minus the hair on the top lip. (That somewhat unusual beard description matches a photograph of Cengiz Coskun taken during a vehicle stop on 30 January 2019, which was Exhibit AA1). When the man holding the phone appeared to see Mr Bassos looking at him he put the phone away straightaway.

67. Shamin Hossain lived in unit 102, on the same floor as Mr Odisho’s apartment 103. He was woken at about 3:45 AM. He heard thumping, and voices in what sounded like a struggle or conflict, and pleading. There was quiet for a few seconds then he heard five gunshots in quick succession then a brief pause, then two more gunshots. After another brief silence he heard a female voice which sounded like crying.

68. Bill Filippopolous lived in the building next door to the Odishos’ building. He woke around 3:45 AM. He heard voices including “Johnny”, “no Johnny” or “come on Johnny” in a pleading, distressed tone. He heard five to seven gunshots, he was not sure how many, in quick succession, probably within 10 seconds.

69. Suzanne Debattista lived in the same building as John Odisho in the apartment below his. She was woken around 3:50 AM by the sound of people being pushed into walls, fighting, from above her. After the “rumbling” stopped she heard a male voice say “I didn’t do it”. She heard four to six consecutive shots, then silence, then a male voice saying “stay with me Johnny”.

70. I note that Dominic Bassos’s evidence of two men emerging from the apartment, and his description of their clothes, was supportive of Ms Mitchell‑Wiszniewski’s. I note also that the neighbours’ evidence of the number of shots fired was similar to Ms Mitchell‑Wiszniewski’s although the undisputed ballistics evidence was that 16 rounds were fired. I infer that some shots were fired simultaneously, and that was not a basis to doubt Ms Mitchell‑Wiszniewski’s evidence.

CCTV footage in Five Dock

71. CCTV footage (part of Exhibit AU1) showed a white Toyota Corolla (linked by later evidence to Cengiz Coskun) driving on Queens Road, Five Dock at 2:37 AM on 2 April 2019. The driver was wearing a fluorescent yellow shirt. The white Toyota Corolla arrived in Five Dock and appeared to wait for the arrival of a white SUV, which on the Crown case was the car used by the second man involved in the alleged robbery to attend Five Dock. At 3:33 AM two men were shown on the CCTV footage to walk on East Street, Five Dock towards Mr Odisho’s apartment. One person was wearing a fluorescent yellow shirt; the other was in black clothing.

72. CCTV showed two men running down East Street and turning left into Lyons Road at 3:46 AM. One was wearing a fluorescent shirt. He was followed by a second person in black clothing. That footage was consistent with the observations made by Dominic Bassos, of the movements of the men and the clothing worn by them.

73. At 3:49 AM CCTV captured the white Toyota Corolla driving on Queens Road Five Dock. The driver was seen to be wearing a fluorescent yellow or green shirt.

74. CCTV footage tracked the white Toyota Corolla from Five Dock to Auburn.

Some evidence about Cengiz Coskun

75. At 4 AM Cengiz Coskun presented to Auburn Hospital. On examination he was found to have a pellet wound in what doctors described as the “lower left quadrant” of his abdomen. A photograph in Tab 16 of Court Book 1 showed the wound on Mr Coskun’s left side. He arrived in hospital wearing a grey T-shirt, shorts and no shoes, with no identification, phone or car keys. A photograph of the grey T-shirt worn by Mr Coskun, in Tab 16 of Court Book 1, showed blood staining on the front and back, in positions consistent with the wound on Mr Coskun’s left side.

76. The Toyota Corolla was found parked in Hargrave Road in Auburn. Auburn Hospital is on Hargrave Road. The key of the Corolla was found on the rear passenger wheel.

77. As at 2 April 2019 the Toyota Corolla was registered to a man named Hafiz Mohammadi, at an address which was also the address of Abdulsamed Sari. Mr Sari attended Auburn Hospital in the early hours of 2 April 2019, after receiving some phone calls from Mr Coskun shortly before 4 AM. Much of Mr Sari’s evidence was disputed by the Crown and challenged as to its credibility, but Mr Sari said that as of 1 April 2019 he knew Mr Coskun had been using and driving the white Toyota Corolla. Mr Mohammadi, whose credit was also in issue, said he sold the car to Mr Coskun on 25 January 2019.

78. Regardless of Mr Coskun’s legal relationship to the Toyota Corolla, he was an occupant of that car, which was being driven by another man, when the car was stopped by police on 30 January 2019 (Exhibit AA1).

79. The car was also linked to Mr Coskun by items police found in the car on the morning of 2 April 2019. In the Corolla police found a high visibility T-shirt on the passenger seat, a black coloured jumper in the same place, some dark grey or black gloves, and a driver’s licence and receipt, both in the name of Cengiz Coskun.

80. The high visibility T-shirt had a Quantum Transport Solutions logo on the front and those words written on the back, and on the lower left side of the shirt were perforations, plastic and metal fragments attached to the perforations and blood staining. The black jumper found with the high visibility shirt also had perforations on the left side.

81. DNA from inside the Corolla, including the head rest, matched Cengiz Coskun’s.

82. Detective Sergeant Aaron Phillips obtained a statement from Matthew Roberts, the general manager of Quantum Transport Solutions. Mr Roberts checked his business records and had no record of ever employing Cengiz Coskun. Mr Roberts said he had subcontracted Mr Batak to do some work for the business from 2 until 13 November 2018, and on 1 November 2018 Mr Batak was issued with five Quantum Transport high visibility work shirts.

83. Detective Phillips said that on 21 August 2019 when Mr Batak was arrested two high visibility Quantum Transport vests were found in his truck parked outside his home.

Expert evidence

84. There was evidence from expert witnesses in respect of a number of topics, being DNA, gunshot residue, ballistics and blood spatter evidence. I did not find the blood spatter evidence of assistance in respect of the matters in issue.

85. Before I refer to the expert evidence I direct myself as follows in relation to the expert witnesses. Each of the expert witnesses gave evidence which was within their expertise (and that was not challenged). The value of an expert opinion depends on the accuracy of the factual basis of the opinion and the degree of expertise and skill brought to bear in formulating the opinion. I am not bound to accept an expert witness’s opinion because he or she is presented as an expert, particularly where that evidence does not accord with other acceptable facts or evidence. If expert evidence has not been challenged and is not inherently unbelievable then I would need a good reason to reject it.

DNA evidence

86. DNA from a blood swab from the yellow high visibility shirt had the same DNA profile as Cengiz Coskun.

87. DNA recovered from the front right upper area of that shirt and from the front right lower area came from at least four individuals. Cengiz Coskun, Sargon Odisho and two other unknown persons could not be excluded as contributors. DNA recovered from the rear lower area of that shirt was a mixture from at least three individuals. Cengiz Coskun, Sargon Odisho and one unknown person could not be excluded as contributors to that mixture.

88. DNA from the black jumper found with the high visibility shirt in the front passenger seat of the Corolla showed the major contributor to the mixture had the same DNA profile as Cengiz Coskun. DNA recovered from the right sleeve, left sleeve and the upper left and right back areas of the jumper was a mixture from which Cengiz Coskun and Sargon Odisho could not be excluded as contributors.

89. DNA recovered from the rear lower left area of the jumper was a mixture from at least three individuals, from which Cengiz Coskun and Larissa Mitchell‑Wiszniewski could not be excluded as contributors.

90. The evidence of Clayton Walton, DNA scientist, from Mr Batak’s first trial was tendered by agreement in this trial. His expertise and findings were not challenged in the first trial. He gave evidence about direct transfer of DNA, when a person touches an object and transfers his or her DNA to the item, and of secondary transfer, when a person’s DNA is transferred to an item not touched by that person, by an intermediary person who has touched the first person and then touched the object. He said the mixed profiles on the jumper which included Cengiz Coskun and Sargon Odisho could be explained by direct contact between them, or between Sargon Odisho and the jumper, or from indirect transfer.

91. He said the mixed DNA profile on the lower left rear of the jumper, which was from three individuals from which Cengiz Coskun and Larissa Mitchell‑Wiszniewski could not be excluded as contributors could be explained by direct contact, or that John Odisho had direct contact with the jumper and, he having had sexual contact with Larissa Mitchell‑Wiszniewski, he transferred her DNA on him onto the jumper.

92. The gloves found on the passenger seat of the Corolla had DNA on the palm and fingers of the right glove from at least two people, and the major contributor had the same profile as Sargon Odisho.

93. DNA from the palm and fingers of the left glove was a mixture from at least four people, and Sargon Odisho and Larissa Mitchell‑Wiszniewski could not be excluded as contributors to that mixture.

94. DNA from inside the left glove was a mixture from at least four people, from which Cengiz Coskun and Sargon Odisho could not be excluded as contributors. Mr Walton said Mr Coskun wearing the gloves was one possible explanation for his DNA inside the glove.

95. The Crown case was that the DNA of Sargon Odisho on the high visibility shirt, the black jumper and the gloves gave rise to an inference of a struggle or physical altercation between Mr Coskun and Sargon Odisho. The Crown case was that the DNA of Ms Mitchell‑Wiszniewski on the black jumper and glove was consistent with John Odisho having transferred Ms Mitchell‑Wiszniewski’s DNA to those clothing items in the course of a physical altercation between John Odisho and Cengiz Coskun in the hallway of the apartment when the other man was in the bedroom with Ms Mitchell‑Wiszniewski.

96. Counsel for Mr Batak submitted that in the absence of any evidence of John Odisho’s DNA on the clothing worn by Mr Coskun, including as part of the mixed profiles which included Ms Mitchell‑Wiszniewski’s DNA, the Crown theory of John Odisho transferring Ms Mitchell‑Wiszniewski’s DNA onto the jumper and glove could not have any credence at all, and the better explanation for the DNA evidence was that it was Mr Coskun in the room with Ms Mitchell‑Wiszniewski.

97. I note that there was no evidence that the man in the bedroom touched Ms Mitchell‑Wiszniewski or any object which might have had her DNA on it.

98. I note that Mr Walton gave evidence about the mixture of DNA from at least three individuals from which Mr Coskun and Ms Mitchell‑Wiszniewski could not be excluded as contributors, that the third individual in the mixture was not suitable for comparison. In respect of the similar profile from the glove he said also that the DNA from the additional contributors was not suitable for comparison due to the low level in complexity. I note also that Mr Walton’s opinion about Ms Mitchell‑Wiszniewski’s DNA being transferred onto the clothing by John Odisho was not challenged in Mr Batak’s first trial and nor was that opinion challenged by Mr Walton being called and cross-examined in this trial.

99. That evidence from Mr Walton is consistent with other acceptable evidence, being Ms Mitchell‑Wiszniewski’s unchallenged evidence of sexual activity between her and John Odisho, her acceptable evidence that the man who came into the bedroom was wearing all black clothing, her acceptable evidence that she did not leave the bedroom until after shots were fired and she was summoned by Sargon Odisho, the evidence from the CCTV footage of two people, one in a high visibility shirt and one in black, going towards the apartment in East Street, Five Dock and running away from the apartment in that street after the time of the incident in the apartment and the evidence of Mr Bassos of seeing two men emerge from the balcony of apartment 103, one in a high visibility shirt and one in black clothing. Therefore, on the basis of those combined pieces of evidence, I am satisfied that the DNA of Sargon Odisho and Ms Mitchell‑Wiszniewski on items of clothing which I am satisfied were worn by Cengiz Coskun in the apartment indicate physical contact between Cengiz Coskun and each of Sargon Odisho and John Odisho.

Gunshot residue

100. There was gunshot residue on both sleeves of the high visibility shirt and on the lower left side around the perforations, on the left and right cuffs of the black jumper and around the perforations in the jumper, and on the outer top of both gloves.

101. The evidence of Nadine Krayem, gunshot residue scientist, from Mr Batak’s first trial was admitted by agreement in this trial. Her expertise was not challenged.

102. She said when a firearm is discharged, particles, which consist of components of the firearm and ammunition, leave the firearm. They can remain on surfaces and clothing and can transfer. She said any object or person within the vicinity of a firearm being discharged can have gunshot residue deposited onto them, in the range of 1 - 3 metres, which varies depending on the type of firearm, ammunition and environmental conditions. Any person who touches a surface or object which has gunshot residue on it can have gunshot residue deposited on them. A person with a wound caused by a firearm will have gunshot residue on them.

103. She agreed that gunshot residue can be deposited on a person by their proximity to the firing of a weapon whether they are the shooter or just proximate, and by transference. She agreed a gunshot residue cloud will form whenever a firearm is discharged; how it is distributed depends on environmental conditions. If a person walked through a cloud of gunshot residue, residue could be deposited on their clothing.

104. Ballistics expert Christopher Preece said he would expect a person firing a gun would have gunshot residue on their hand or the outside of their glove. The Crown case is that although there is a possibility of transference of gunshot residue to someone close enough to the shooting, the presence of abundant gunshot residue on the outside of the gloves and sleeves of the shirt worn by Cengiz Coskun supports Cengiz Coskun being the person who shot the firearm.

105. Counsel for Mr Batak relied on Ms Krayem’s evidence about gunshot residue being deposited on clothes in the vicinity of a gun being fired as explaining the gunshot residue on Mr Coskun’s clothes.

Ballistics evidence

106. Christopher Preece, firearms examiner, gave the following relevant evidence. His qualifications, study and experience were in Exhibit D1, and were not challenged.

107. He said a self-loading pistol uses, as an ammunition source, a magazine which can be filled full of cartridges, but it requires the operator to pull the trigger back each time the firearm is discharged.

108. He said in the apartment there was evidence of two different shots, a shot pattern from shell shot and single round holes from 40 calibre bullets. The latter were on the entrance wall to bedroom 2 (the designation given to Sargon Odisho’s bedroom), to the door of that room and inside that bedroom. Mr Preece said self-loading pistols use single bullets. Shotshell is not usually used in self-loading pistols. Shotshell spreads when it meets the air.

109. Mr Preece examined by microscope ten 40 calibre Smith & Wesson fired cartridge cases which had been recovered from the apartment. From his examination of the fired cartridge cases and bullets and bullet fragments recovered from the apartment he formed the opinion that they had been fired from a Glock self-loading pistol, from the presence of a number of Glock characteristic markings on them, being a rectangular firing pin, polygonal rifling, vertical parallel lines from the breech face, and markings from the ejector, ejection port and extractor. He said it was most likely a Generation 3 Glock.

110. Mr Preece attended the autopsy conducted on John Odisho, where forensic pathologist Dr Irvine measured the bullet entry wound on his head. From the measurements of that wound Mr Preece formed the opinion that the wound was caused by 40 calibre ammunition, consistent with the 40 calibre ammunition from the crime scene. From the lack of particular markings on Mr Odisho’s skin Mr Preece formed the opinion that the shot was at a distance, not at close or intermediate range in ballistic terms. In his opinion the wound to Mr Odisho could not be caused by shell shot.

111. I interpolate that Sargon Odisho presented to hospital with a gunshot wound in his left upper arm and two gunshot wounds to his inner left forearm (Tabs 36 and 37 Court Book 1).

112. Mr Preece examined the likely trajectories of shots from both firearms. He concluded that 10 rounds of 40 calibre ammunition were shot into bedroom 2 from outside the doorway, in the hallway, within the doorway, and just inside the doorway. There were two shots through the wall and two from outside the doorway through the open door. The trajectories suggested some body movement by the shooter of the 40 calibre gun, but not much leg movement.

113. Mr Preece said the shell shot was fired from the doorway of or within bedroom 2 into the hallway, some through the wall. He formed the opinion that the shell shot was fired from a 38 Smith & Wesson silver revolver recovered from the crime scene. That revolver had DNA matching Sargon Odisho’s on the trigger, trigger guard, barrel and hammer.

114. Mr Preece excluded two firearms found in the apartment from having been used in the incident. He said a Hammerli firearm found in the apartment cannot shoot 40 calibre ammunition, or shell shot ammunition, and a 12 gauge shotgun found in the apartment was not capable of being used in the state in which it was found, as it was missing a necessary part.

115. Mr Preece said the term “mini Glock”, in his experience of being around firearms since 2000, is a slang term for smaller Glock pistols with sub-compact and compact frames, being models 23 and 27. He said they are both capable of firing 40 calibre ammunition. He agreed that there were other models of Glock pistol which could possibly have fired the cartridge cases he examined, being a G22 standard, a G24 and a G35.

116. He said the standard colour of Glock pistols is black but different coloured parts can be bought from Glock.

117. He said “extended clip” is a slang term for a larger capacity magazine, for faster loading of a firearm. The clip is a device used to hold cartridges and load the magazine by feeding the cartridges into the magazine. He said a 23 compact model Glock comes with a standard 13 cartridge capacity magazine, and larger magazines are available. He said the G27 sub-compact model has a standard nine cartridge capacity magazine but larger capacity magazines for that firearm are available, being 10, 13, 14, 15, 16 and 22 capacity magazines.

118. Mr Preece examined a high visibility Quantum Transport Solutions work shirt, which had on it blue plastic from the cartridge which held the shot or pellets, a circular pattern of shotshell damage and propellant residue within the damaged area. By conducting tests with the 38 revolver recovered from the apartment, the same type of ammunition and similar shirts on a mannequin, he determined that the shotshell pattern on the high visibility shirt was caused by shooting at a distance of approximately 40 - 60 cm between the muzzle of the revolver and the shirt.

119. Lucas Van Der Walt, a forensic firearms examiner, whose expertise was not challenged, reviewed and agreed with Mr Preece’s opinions about the fired cartridge cases having been discharged from a Glock self-loading pistol, and with his trajectory diagrams.

Phone evidence

120. In the Toyota Corolla driven by Cengiz Coskun to Auburn Hospital police found two Samsung phones, a model J8 and a model J5, the latter a Ciphr phone. There was no dispute by Mr Batak that they were Cengiz Coskun’s phones.

121. In the J8 three phone numbers had been used, each registered in a name other than Cengiz Coskun. A number ending in 397 was activated on 15 March 2019. A number ending in 656 was used in the handset from 25 March to 29 March. A number ending in 742 was used in the handset on 29 and 30 March.

122. The J5 Ciphr phone used special software which enabled encrypted communications including instant chat. Voice calls are not enabled on Ciphr phones. Communications by Ciphr phones are typically transmitted through the platform’s encrypted servers. The contents of Ciphr phones cannot be downloaded by New South Wales police.

123. Mr Batak used a phone number ending in 144, which was subscribed in his name.

124. Mr Coskun’s 397 number was recorded connecting to phone cell towers in the Five Dock area in the morning of 2 April 2019 at times consistent with the times at which observations were made of the Corolla and the two men in Five Dock.

125. On 16 March 2019 Abdulsamed Sari sent Mr Batak’s number ending in 144 by WhatsApp message to Cengiz Coskun’s phone number ending in 397. Thereafter, until 1 April 2019, there were text messages and phone calls between Mr Coskun and Mr Batak. The content of the calls was not available. The content of messages were. It was the Crown case that this contact between Mr Coskun and Mr Batak in that period of time involved planning for the robbery on 1 - 2 April, and possibly other criminal activity. The Crown case was that the latter did not prevent the former from occurring, and did not provide a complete explanation for the phone contact between the two men.

126. Counsel for Mr Batak submitted that there was no evidence of advance planning by Mr Batak with Mr Coskun.

127. Mr Batak tendered Exhibit 17 which were messages with his wife to be and friends. Counsel submitted that the messages showed Mr Batak was in the relevant period going about his normal life, but accepted that that did not exclude the possibility that he could have been engaging in planning.

128. Some of the messages between Mr Batak and Mr Coskun suggest they met. One of several messages on 20 March 2019 from Mr Batak said he was going to “the park now” and going to “wait there for them I’ll let you no when I’m done”. A message on 21 March 2019 from Mr Batak to Mr Coskun said “They just msged saying can we do nowish”. There were messages on that same date about an hour after that message, between Mr Coskun and Mr Batak, Mr Coskun asking how long until “they” get to the park, Mr Batak replying that they were on their way now, Mr Batak asking Mr Coskun how long until he was there and both of them indicating time estimates. Those messages were interspersed with messages between Mr Batak and a man named Prasad, which seemed at least in part to be related. The messages between Mr Batak and Mr Prasad could be construed as referring to the stealing of a car. It is not clear whether the messages between Mr Coskun and Mr Batak were related to that enterprise or to some other criminal activity, suggested by arranging to meet in parks.

129. These communications suggest that Mr Batak and Mr Coskun were at that time involved in some other activity than the offence charged. That does not exclude the possibility of their engaging in planning for the alleged robbery but it is not necessary that the Crown prove preplanning of the alleged robbery in that period, and there is not evidence which could reliably be the basis of such a conclusion, except that on 23 March Mr Coskun’s phone registered at Five Dock. As it seems that the communications relate to other illicit activity I direct myself that I must not, and in accordance with that direction I do not, treat that evidence as establishing any tendency of Mr Batak to commit any offence at all, or of the kind alleged on the night of 1 - 2 April, and I do not use that evidence in any adverse way to Mr Batak in respect of the offence charged. I will put that evidence out of my consideration.

Communications between Mr Batak and Mr Coskun on 1 and 2 April 2019

130. On 1 April 2019 at 11:37 AM Mr Batak attempted to call Cengiz Coskun on the number ending in 656 but the call did not connect. At 11:38 AM on that same day Mr Batak made a call to Cengiz Coskun’s number ending in 397 which lasted for 18 seconds.

131. At 5:26 PM on 1 April Mr Batak sent a message to Ms Al Kahi, his future wife, which said “Baby I can’t tonight I got a few boys I got to see soon”.

132. At 14 minutes past midnight on 2 April Mr Coskun’s number ending in 397 called Mr Batak on the 144 number. The call lasted for 16 seconds.

133. At 12:21 AM on 2 April Mr Batak sent a message to Mr Coskun’s 397 number which said “Park on the street don’t come in the driveway”. At 12:27 AM on 2 April Mr Coskun’s phone sent a text message to Mr Batak’s phone saying “Gel” which was translated as “Come” and that meaning was not disputed on behalf of Mr Batak.

134. At 1 AM, over three seconds, Mr Coskun sent three WhatsApp messages to Mr Batak’s phone which said “bring hi viz”, “work shirts”, and “two”. The messages were recorded as “delivered” at the time they were sent at 1 AM and as “read” at 1:19 AM. Detective Phillips gave evidence that he understood that a message may appear on the recipient’s screen and can be seen and read but the message will not be registered as “read” until the recipient taps on the message to enter the chat.

135. At that time Mr Batak was living in Park Street, Auburn in an apartment with his parents, with a garage on the ground floor of the building. Mr Coskun’s phone was (as shown in Court Book 2 Tab 2) connecting to cell towers at Auburn West and Auburn Centre, both near Mr Batak’s Park Street address, from 12:22 AM until 1:14 AM, connected to the Auburn West tower, and from 12:24 AM to 1:14 AM, the Auburn Centre tower. That is supportive of Mr Coskun being at the accused’s home in that time period, consistent with the messages. What happened thereafter to Mr Coskun’s phone is a matter in dispute between the parties and I will come back to that later.

136. Mr Coskun made some phone calls to Mr Sari commencing at 3:52 AM on 2 April and Mr Sari called Mr Coskun minutes later, before Mr Coskun and then Mr Sari attended Auburn Hospital.

137. On the afternoon of 2 April 2019 at 2:06 PM – 2:07 PM a man named Gumustas, known to Mr Sari, sent messages to Mr Batak which said “Cousin. Can you meet sari at ish (a mutual acquaintance of Mr Batak and Mr Sari named Ismail Gencoglu) place around 15 - 20 mins. Something happened apparently. He asked me to ask u” (Exhibit AO1).

138. At 3:58 PM Mr Batak sent a message to Mr Sari’s phone saying “brother come to mine plz”. Mr Sari replied to Mr Batak by message at 4:05 PM saying “OK”. At 4:06 PM Mr Sari sent a message to Mr Batak’s phone saying “come down” (Exhibit AO1).

139. Between the messages from Mr Gumustas to Mr Batak and the messages between Mr Batak and Mr Sari, Mr Batak sent a message to Ms Al Kahi at 3:05 PM which said “I got to let my phone go for a few hours don’t worry bout me i’m ok i’ll msg you after I love you”.

Alleged admissions by Mr Batak

140. The Crown relied on intercepted telephone conversations between Mr Batak and other persons, and conversations recorded by a surveillance device in Mr Batak’s home. The Crown asserted that statements made by Mr Batak in those conversations were admissions of his involvement in the offence charged. It was part of the Crown case that Mr Batak, newly married to Ms Al Kahi, moved with her to their own place at Guildford in June 2019 and surveillance devices which recorded conversations in that house were installed on 23 June 2019. It was the Crown assertion that the statements made by Mr Batak recorded at that time were unguarded and frank admissions. It was the Crown case that when Detective Phillips spoke to Ms Al Kahi in July 2019 about her car being suspected of having been connected to the alleged offence that Mr Batak’s awareness of police interest in him was reflected in his conversations at about that time.

141. The accused’s case in respect of the purported admissions was that they were not true or genuine but that Mr Batak lied, provable by other evidence, was making false boasts in an attempt to impress those to whom he was talking, that is “big noting” himself or “talking himself up”. There were also disputes about what was said in some of the recorded statements. It was not disputed that Mr Batak was speaking in the conversations relied on.

142. Counsel for Mr Batak asked that I direct myself in accordance with s 165 of the E**vidence A**ct that the asserted admissions may be unreliable. He highlighted the issues in relation to the purported admissions as were they made and if they were made were they true. I so direct myself and being conscious of those issues in respect of the asserted admissions, bear them in mind when I am considering the asserted admissions.

143. The first few recorded conversations, the transcripts of which were contained in Court Book 3, the Crown relied on as demonstrating Mr Batak’s ability to supply guns or possession of guns, to rebut the evidence of Mr Sari that Mr Batak had taken and stored at his place guns belonging to Mr Coskun and had returned them to Mr Coskun, or Mr Coskun had re-taken possession of them, on the night of 1 - 2 April 2019, contrary to the Crown case that Mr Batak gave Mr Coskun a Glock belonging to Mr Batak for use in the planned alleged armed robbery. I direct myself that the Crown does not rely on that evidence as establishing a tendency on the part of Mr Batak and I do not treat that evidence as demonstrating a tendency on the part of Mr Batak, as that was not how the Crown relied on it. I will rely on the evidence only for the purpose for which the Crown tendered it, being to rebut the specified evidence of Mr Sari, which I will refer to later.

144. It was the Crown assertion that the first recorded conversation, the transcript of which appeared at Tab 1 in Court Book 3, and the first part of the second conversation, the transcript of which was at Tab 2 of Court Book 3, being recorded conversations between Mr Batak and Mr Prasad, were conversations indicating that Mr Prasad was safekeeping firearms for Mr Batak. The first conversation was a phone conversation recorded on 22 May 2019.

145. Mr Batak asked Mr Prasad if he was doing anything “tomorrow night?”. Mr Batak said to Mr Prasad “I just got, like, two boys that’s going to come to me”, “They got, grab those things from the garage, they’re gonna grab something off ya?”. Mr Prasad agreed to bring “it” to the old place from the new one. He asked “The big one or little one?” and Mr Batak replied “The little one and everything in that”.

146. The next conversation occurred on 23 May 2019, between Mr Batak and Mr Prasad, in Mr Batak’s car. Mr Batak asked “Do you want me to take this thing with me?”. Mr Prasad replied “It is up to you bro. Like I don’t mind keeping it here”. Mr Batak asked “Can it stay here?” and Mr Prasad agreed. Mr Prasad said “You can keep it at Greystanes [Mr Prasad’s intended new address] if you want and then like from there, whenever they wanna get it, we’ll just meet them somewhere. I’ll bring it back out. You know what I mean?” Mr Batak agreed that they will do that as it is easier.

147. Mr Batak said later in that conversation “They pull a Cengo…”. That appears to me to be a reference to the shooting at Five Dock on 2 April. Individual facts do not need to be proved beyond reasonable doubt, but without that reference to “pulling a Cengo” those conversations could have been about guns or could have been about other illicit objects. However, the reference to “Cengo” gives colour to the conversation as referring to guns and indicating that Mr Batak had access to a gun or guns and the ability to provide such to other persons, to rebut Mr Sari’s contrary evidence that Mr Batak was only keeping Mr Coskun’s guns on Mr Coskun’s behalf.

148. In the same conversation on 23 May 2019, when Mr Prasad asked “what’s gonna happen with Cengo” Mr Batak said “Cause you can’t prove that he was the actual shooter when the other guy hasn’t been caught yet”.

149. Mr Prasad asks “Did they find the gat?” It appeared to be not disputed that this was a slang term for a gun. Mr Batak replied “I don’t know …That part I don’t know. But the other guy he was with hasn’t been caught yet, so it can be the other guy that done it all and it can be him…That’s what it comes down to, so we are gonna see what happens”.

150. In a recorded telephone conversation on 21 June 2019 between Mr Batak and a man named Ethem Taslak, the transcript of which appears at Tab 3 of Court Book 3, Mr Batak asked Mr Taslak about a safe and Mr Taslak responded in terms that it was a gun safe. The conversation continued:

| TASLAK: | I’m going to sell my rifle and get a new one. | | BATAK: | I’ll give you one | | BATAK: | Yeah, take the one that I have. | | TASLAK: | I’ll take the other one you got | | BATAK: | Not a chance | | | … | | BATAK: | No, that’s mine, bro. | | | … | | BATAK: | That’s out of bounds. Nobody touches that one. |

151. That call shows that Mr Batak possessed or had access to firearms, which rebuts Mr Sari’s evidence that Mr Batak simply returned Mr Coskun’s guns to him on 2 April for Mr Coskun’s purpose.

152. The same conclusion arises from part of a conversation on 26 June 2019 between Mr Batak and a man named Yalim, the transcript of which appears at Tab 4 of Court Book 3, in which Mr Yalim said “My guns are insured” and Mr Batak replied “Yeah, see mine aren’t, cuz yeah”.

153. The same conclusion is available from the first part of a conversation on 28 June 2019 recorded at Mr Batak’s home in Guildford, between him and persons named Yalim and Karaman in which Mr Batak said “The ones that are legal, they go in the garage for display, the ones that are not legal … I’m thinking dig a hole in the backyard”.

154. The next series of calls in Court Book 3 were relied on by the Crown as containing admissions by Mr Batak to his involvement in the offence charged in the way alleged by the Crown.

155. The first such conversation was recorded in Mr Batak’s home on 28 June 2019 with Yalim and Karaman (Tab 5 of Court Book 3):

| YALIM/ KARAMAN: | Did you hear what happened to Cengiz? With Cengiz? | | BATAK: | Did you know I was gonna go with him? | | | … | | BATAK: | Yeah, bro I grew up with him. Cengiz came. Alright, this I’ll tell you exactly what happened. Cengiz came to my house. | | BATAK: | Cuz he came, he called me up. At the time I swear to God, I was dead broke. I need money, and he knew it, so he came, and I had… | | | … | | BATAK: | I had two at home. Yeah, he asked please can I take one. | | YALIM/ KARAMAN: | You know the, got shot? | | BATAK: | I know that cuz. I gave it to him yeah. | | | … | | BATAK: | You know the one I gave him, extended clip | | | … | | BATAK: | He comes cuz, we’re at my garage, it’s like one in the morning. He’s telling me exactly the scenario, like the scene. He went there, his mate was there… | | | … | | YALIM/ KARAMAN: | How’d he know that guy was there? Know that guy was there? | | BATAK: | Cause his mate was there, his mate was there. Yeah, at the house and he goes everyone was smacking out. Like, they’re just crashing. So, there’s two of them explained everything cuz. I go, ‘Alright.’ He goes, ‘Let’s go together’ and he goes, ‘It’s easy.’ Please explain. He goes, ‘We just go up the balcony, on the ground floor’, and he goes, ‘The doors open we’ll go straight in’, yeah, ‘In and out nice and quick.’ I promise to God I was there for about 10 minutes, in my garage, cause he asked me for fluro’s as well. I gave him my work shirt. He’s wearing my work shirt, huh. | | YALIM/ KARAMAN: | What do you mean fluro’s? | | BATAK: | He’s wearing my work shirt in the fucken camera footage. | | YALIM/ KARAMAN: | Names? On the shirt? | | BATAK: | Quantum Transport. | | | … | | BATAK: | Cuz, I’ll tell you exactly what happened. I stood there with him about 10 minutes, just thinking about everything just explained to me, and I’m like brother, if this pulls off, that money, I need that now, yeah. I promise to God I kept thinking and thinking and I was actually persuading to go with him. Last minute, you know what happened, cuz my stomach turned, yeah, I had to chuck a shit. Like, I, bro I could not hold it too, huh. Cause we’re in the garage, we’re getting everything ready and I had to chuck a shit. I go, ‘my poo came’. He goes ‘I have to go now’. I go, ‘Cuz, I gotta poo, yeah,’ I go, ‘ok you go then’, I full got turned off from it, I go, I’m gonna go upstairs, I’m gonna shit’, yeah. Then and there he was calling someone else and he goes, ‘Don’t worry, I’ve got someone else.’ He goes, I’ll get something out of it and I’ll bring it to ya.’ He left. Next morning cuz, ask me what I hear on the radio. Five Dock shooting. Everything. And he called me in the morning too, cause he got shot. | | | … | | BATAK: | I gave him a Glock | | | … | | BATAK: | It was a mini Glock too. | | | … | | BATAK: | Yeah a mini Glock. He came my home. Loaded up | | | … | | BATAK: | but cuz, then and there when it happened, I promise to God I heard on the radio too, I pulled over, I just sat there and I had a cigarette and I thought about it bro. | | YALIM/ KARAMAN: | That could have been you. | | BATAK: | 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. | | YALIM/ KARAMAN: | why did he wear high vis? | | BATAK: | I don’t know why ..he [wanted] high vis |

156. Having listened repeatedly to that conversation I heard “wanted” which was Mr Batak’s contention, not “wore” as the Crown contended.

157. The next recording was of a phone conversation between Ms Al Kahi and Detective Phillips on 16 July 2019 (Tab 6 Court Book 3) in which Detective Phillips told Ms Al Kahi that he wanted to speak to her about her car in connection with the investigation of a murder at Five Dock where a man was shot and killed.

158. After that phone conversation Mr Batak and Ms Al Kahi had a conversation in their home, the salient points of which were:

| BATAK: | Yeah, but Five Dock shooting | | | … | | BATAK: | My cousin | | | … | | BATAK: | He’s never driven your car | | Al KAHI: | Not him. They could be looking for you. | | BATAK: | No chance, cause the night they done the shooting the car they took was a white Corolla and they’ve got that. |

159. The next conversation, the transcript of which is at Tab 7 of Court Book 3 is a conversation between Mr Batak and Ms Al Kahi on 16 July 2019 after the previous conversation.

| BATAK: | It might not even be that. It can’t be from my end, there’s no chance, cause everything my cousin done was through me. | | | … | | BATAK: | Yeah. If there was anything, it was nowhere near your car, yeah… | | | … | | BATAK: | and throughout the whole incident, your car was not involved one bit. |

160. Then Mr Batak asked Ms Al Kahi if she was going to check messages on her phone from April, messages with him, and she referred to “he goes yeah like between the first and second [of April]”, seemingly a reference to what Detective Phillips had said to her.

161. Then the conversation continued:

| Al KAHI: | Where were you that night? | | BATAK: | Home | | AL KAHI: | You sure? | | BATAK: | He came to my house. | | Al KAHI: | He came to your house? | | BATAK: | I was the last person he was with. The last person he called. The last person he was with. And then he left (inaudible). And the very first person he called the next day was Samed. |

162. The next conversation, the transcript of which is at Tab 8 of Court Book 3, was a further conversation on 16 July 2019 between Mr Batak and Ms Al Kahi in their house:

| BATAK: | That’s when I wrote in my phone I go for a while… (inaudible) … on the charge. I go don’t worry about it, I message ya, I love you. | | | … | | AL KAHI: | I was at work | | | … | | BATAK | Cause that was the time when I had all the boys for a feed at my house. | | | … | | BATAK: | There is nothing here bub. And it can’t be anything that your car got involved in, like you said you’re at work. | | | … | | AL KAHI: | And I knew nothing then. Cause you told me that night when I came to see you after work. | | BATAK: | I didn’t tell you nothing on the phone, I’m not stupid. | | | … | | BATAK: | And I say nothing over the phone. I never talk on the phone. | | Al KAHI: | You do sometimes, you say some stuff. | | | … | | BATAK: | He, so what Hussein done he got set up, same as Cengiz my cousin, yeah. Same scenario, someone laid down a job for him, whatever, this, this, this, this, this. It was a warehouse, he went with a mate to the warehouse… |

163. The next conversation was a telephone conversation on 17 July 2019 between Mr Batak and Mr Khuzay, the transcript of which is at Tab 9 of Court Book 3. Mr Batak told Mr Khuzay that police have called his wife and she has to go to the station that day:

| BATAK: | But we weren’t sure what they were on about… and then I jumped on the messaging [I had a quick look] is when our [yellowish went in] | | | … | | BATAK: | … that day they said, they gave us the date, I checked the messages that day. [There was only one message from me…I said I have put the phone on charger, things like that …] I go “I’ll call you later or after work. | | | … | | BATAK: | [That day I cleaned the house.] | | | … | | BATAK: | ‘Cause I’m very, very curious. [Nothing was said over the phones] nothing happened. |

164. Later again in the conversation:

| BATAK: | … I’m going to speak to Samed today. | | | … | | BATAK: | ‘Cause he’s in all this. He’s in the middle of all of it… | | | … | | BATAK: | ‘cause they’re still trying to get [Samed in] and use his roommate, one of the guys that stayed there. | | | … | | BATAK: | The car they used that night, is under the that kid’s name. They both own it, like they both share that car. | | | … | | BATAK: | But that kid never drives that car, rarely rarely drives it. |

165. Mr Batak told Mr Khuzay that police told Ms Al Kahi that her car was seen. The following conversation occurred:

| KHUZAY: | Mm, and what day does this come to? | | BATAK: | The day he [hit them] and the very next day. | | | … | | BATAK: | April [1 and 2] | | | … | | BATAK: | ‘Cause I checked the messages, I got curious. And I remember sending that message on the second and that message from me [I was cleaning the house] that day, ‘cause it was the very next day it happened. |

166. The next conversation, the transcript of which appears at Tab 10 of Court Book 3, was recorded on 17 July 2019 in Mr Batak’s and Ms Al Kahi’s home, and involved Mr Batak, Ms Al Kahi and Mr Sari. Near the beginning of the conversation Mr Batak said to Mr Sari “We’re getting surveilled I think” and told Mr Sari police had told his wife about the dates and her car at a shooting at Five Dock. Then Mr Batak said:

| BATAK: | …it clicked with me when he said Five Dock, I go for sure, what were we doing that day, yeah. And the second of April, so it must have been on the first, because on the second of April she was at work, I was going through my messages, yeah. I sent her a message saying, so what I was doing, I was emptying out my house, yeah, the boys were coming back and forth (inaudible). All I said on my message was babe I gotta leave me phone, like I am going to leave my phone at home for a bit I am going to be out. I go, I’ll speak to you a bit later on tonight when I’m back, yeah, and she said all good. And that was all that was said. So then it clicked to me, that was the day someone was shot in the house (inaudible), when the boys were coming back. | | | … | | BATAK: | So, then they think, maybe, assume I was involved | | SARI: | (inaudible) | | BATAK: | Obviously, they don’t have proof, and there’s a lot of people there (inaudible) the other guy, and I’m just one | | AL KAHI: | But the next day, you message me the next day | | BATAK: | Yeah | | AL KAHI: | You message me the next day at about six, five thirty-six o’clock, he goes ‘okay I won’t have my phone on me, I’m fine, I’ll call you when I get back.’ | | SARI: | (inaudible) | | AL KAHI: | (inaudible) | | BATAK: | If they do ask you, say, I said I have to go out, leave my phone on charge. Theres nothing that can, whatever I said, there’s nothing they can use this for… | | SARI: | (inaudible) | | BATAK: | I know | | SARI: | (inaudible) | | BATAK: | I know. I’m saying, whatever had been said, yeah, I was very careful what I said… | | SARI: | (inaudible) | | AL KAHI: | (inaudible) | | SARI: | (inaudible). Cause the guy that I live with (inaudible) was driving the car. |

167. Later during the conversation the transcript records audio of the news broadcast relating to the Five Dock shooting playing and Mr Batak said “They got the dates right”.

168. Then later Mr Batak said “Mate, I’m the one, I’m the one who is a suspect”.

169. Later in the conversation they talked about, without naming him, it seems Mr Coskun, being shot in the stomach, going to hospital and the car being found. Ms Al Kahi said “Yeah but you know now, technically you’re the other person” and Mr Batak replies “one of us is”. The conversation continued;

| BATAK: | Okay, so he come to me | | | … | | BATAK: | I can’t remember exactly when, but I know it had to be after midnight. I’m pretty sure it was like one in the morning he came. | | | … | | BATAK: | So, whether he checked it out or not, all I know is one of his mates were there, yeah, at that house, shooting up or whatever they were doing in there with those guys, yeah… So, his mate that was in there said… | | | … | | BATAK: | They’re coming. His mate who was in there… | | SARI: | … | | AL KAHI | … | | BATAK: | What he say to me, he said two, there’s two people… | | | … | | BATAK: | I’m pretty sure it was after twelve | | | … | | BATAK: | I’m pretty sure, I’m confident cuz, he came after twelve Yeah. | | | … | | BATAK: | So, his mate that was there, he said to me, this is what he said… | | | … | | BATAK: | What did he say to him? He goes I’m there, they’re all smacking out on coke, and he goes just come | | | … | | BATAK: | That’s why he got geed up, whoever was there, seen them smoking, (inaudible). | | | … | | BATAK: | And we don’t know who the guy, the other guy was. We don’t know who that guy is. | | | … | | BATAK: | (inaudible). Cause they still have, they still had everything, there | | | … | | BATAK: | The guy he called. | | | … | | BATAK: | The guy he called, he called him on his ciphr, on his phone, he message, he was messaging, come, whoever the second person was, yeah | | | … | | BATAK: | Nah hundred percent it was a ciphr | | | … | | BATAK: | (inaudible) See they haven’t found the gun (inaudible). He just grabbed my gun [after repeated listens sounds like “and walked out”]. | | | … | | BATAK: | He found it, and then when he found it he [cleaned] it, he put it back but, he goes ‘you need to like, you put it in a shit spot’, so he goes ‘so I hid it’, he goes even I can’t find it [or possibly so now I can’t find it]. | | | … | | BATAK: | And then a week later this one comes and goes I’m gonna go one, two three. | | | … | | SARI: | How the heck did he jump off the roof? | | | … | | BATAK: | No, they were on the balcony. Balcony was on the first floor. It’s not ground, it’s first floor. | | | … | | BATAK: | You know next to the balcony there’s like a, I don’t know what it is. | | | … | | BATAK: | What is it… | | AL KAHI: | For electricity | | BATAK: | Electricity, whatever it is, so they would have climbed up it and then gone through there, cause the guy that was inside the house said, ‘brother the screen door is open and they’re smacking out on coke’, so he went through there in through the balcony. | | | … |

170. In a conversation recorded in their home at Guildford on 18 July 2019 (Tab 11 of Court Book 3) after Ms Al Kahi told Mr Batak about her conversation with police:

| BATAK: | Did they ask you about him? | | AL KAHI: | Yeah but, I got nothing to do with him. | | BATAK: | Yeah but, I can’t say no I don’t know him. | | | … | | BATAK: | Yeah, but they were asking about him. The thing is that Quantum t-shirt wasn’t his t-shirt | | AL KAHI: | Shut up. What? | | BATAK: | (inaudible) | | AL KAHI: | Shut up for one second. You think I didn’t know that? Did he wear it like…? Who was wearing it? | | | … | | BATAK: | The blondie | | | … | | AL KAHI: | So, it’s not your shirt | | BATAK: | Yeah, I know, [or yeah, no] but then I had two more at home… |

171. Later in the same conversation, the transcript of which is at Tab 13 of Court Book 3, Mr Batak said:

| BATAK: | So, they’re trying to, one, two, three, four, but they can’t prove that, and I’ll say, look I was at home, my parents were home, upstairs. (inaudible) | | | … | | BATAK: | It’s my shirt, that Quantum shirt, yeah. I never worked for Quantum. I think I worked for them like three days, two days (inaudible). They gave me a uniform, I never wore that shirt. | | AL KAHI: | Okay. I don’t care if you wore it or not, it was the man that wore it. | | | … | | AL KAHI: | I don’t know. By the way, okay, what about when they find the gun. What happens then? | | BATAK: | Think they already found it babe | | | … | | Al KAHI: | They find anything? | | BATAK | Nah, (inaudible)…always wiped down completely. So (inaudible) … and then after that, when he took it that day, (inaudible) was getting all ready, washed completely down. |

172. Later on the same night in a conversation between Mr Batak and Ms Al Kahi, the transcript of which is at Tab 14 of Court Book 3:

| BATAK: | I played a part. He came and saw me. But, if I sat down and told them exactly, without a word of a lie, what happened. | | | … | | BATAK: | If I said every single word by word, exactly what happened. | | AL KAHI: | Yeah | | BATAK: | Ah, I’m one hundred percent confident nothing is going to happen to me, because (inaudible) | | Al KAHI: | I think it’s better if you don’t say anything else. |

173. In a conversation on 23 July 2019 between Mr Batak and Ms Al Kahi, recorded in their home, the transcript of which is at Tab 16 of Court Book 3:

| AL KAHI: | Who the fuck is this other person? | | BATAK: | I don’t know. | | Al KAHI: | He won’t say? | | BATAK: | I don’t know, I asked him, Samed doesn’t know either. ah, all he said to Samed was it was some bloke in the city, Leichhardt way, Glebe, whatever. I feel like he’s trying to defend that person as well. |

174. In a conversation recorded on 2 August 2019 at Mr Batak’s home between Mr Batak and Erhan Akdeniz, the transcript of which is at Tab 17 of Court Book 3:

| BATAK: | I know, they’ve got nothing they can prove to me (inaudible) | | | … | | BATAK: | Cuz, I already know what to say. He called me just before he went and done the job. Theres a phone call there. So, they’ve seen that, cause he came, he saw me, I gave him the gun, he took my gun. | | | … | | BATAK: | He came. He seen me, we spoke. I was the last person he called. And then he took my gun, I gave him my gun, he took that. And, he took, ah, I gave him the shirt. There was five of them, I gave him two… | | | … | | BATAK: | After the job I chucked all four of them in the bin. They’re Quantum T Shirts. That’s why they’ve got something. | | | … | | BATAK: | CCTV, they see him wearing the shirt. (inaudible). In Hawraa’s statement, they ask questions. Who’s your husband, whatever, what does he do for work, he’s a truck driver | | | … | | BATAK: | Everyone knows about the event. Everyone heard that Cengiz and the event, they don’t know I gave him the gun. | | AKDENIZ: | Okay | | BATAK: | Samed knows I gave him the gun. | | AKDENIZ: | No talking shit. Is that safe? (inaudible) | | BATAK: | The gun, my own gun you mean? | | | … | | BATAK: | (inaudible) I know. See, what they’re doing, cuz, there was two people that shoot, like with, there was one person with Cengiz, they haven’t got that person. That is why they’re coming to me. It’s why they’re going to everyone. I don’t know who else they’re going to, there has to be more than just me. But whoever they are looking for or looking at, they’re probably hitting all of them, every single one of them, to try and find the crack to see maybe they’re all potentials. We’re all potentials. Not we’re hundred percent whoever they other guy is, but they’re trying to figure out who that guy is, that’s why they come to me. | | | … | | BATAK: | That’s what they’re doing. They’re trying to figure out who’s that second person. | | | … | | BATAK: | You know how they can get me? That I gave it? About two thee days before I gave it to him, my dad cleaned the shit out of that gun | | | … | | BATAK: | …I don’t want that gun back (inaudible) |

175. The balance of the calls, the transcripts of which were in Court Book 3, were relied on by the Crown for the purpose of showing an asserted tendency by Mr Batak which I will address later. However the Crown relied on some statements by Mr Batak in those conversations as admissions in relation to the offence charged.

176. In a telephone conversation on 29 April 2019 between Mr Batak and Aadil Khan, Mr Khan was recorded as telling Mr Batak that another person had asked him about doing a ‘rip’ on a house and that Mr Khan had said “Nah, bro, I don’t want to end up in one of those weird scenarios”. Mr Batak responded:

| BATAK: | Yeah, those are very ugly scenarios to be in, bro. | | | … | | BATAK: | Cause just in a, like split second …. | | | … | | BATAK: | … it could be the worst decision you’ve ever done in your life. | | | … | | BATAK: | And what’s fucking forty grand for something like that. |

177. In a telephone conversation on 6 May 2019 between Mr Batak and Mr Khan, in a conversation continued from previous conversations about an apparent proposed robbery of drug premises, Mr Khan said:

| KHAN: | If we run into something unexpected, you know? | | BATAK: | 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. | | KHAN: | Yeah. | | BATAK: | Just over a fucking rip |

178. Later in the conversation Mr Batak said:

| BATAK: | Cuz, this, this sounds, a bit “how’s it going?” whereas the other one before when I got told it, the one that happened… | | KHAN: | Yeah. | | BATAK: | …with old mate, yeah? | | KHAN: | Yeah. | | BATAK: | That one didn’t even sound “how’s it going?” That one sounds like “wow, is it that easy?” You know what I mean? | | KHAN: | Yeah. | | BATAK: | And look, and look how bad that one fucked up. |

179. There were a number of submissions made by Counsel for Mr Batak as to why the asserted admissions were lies, could not be relied upon or did not prove the elements of the offence which the Crown relied on them to prove.

180. One such argument concerned the evidence given by Abdulsamed Sari, that Mr Batak had taken possession of and was minding guns belonging to Cengiz Coskun. Mr Sari’s evidence was that Cengiz Coskun left guns in a bag at the place where Mr Sari was living. He felt through the bag that they were guns. He had asked Mr Coskun if the bag was his and Mr Coskun had said yes. A month or a couple of months before the shooting incident Mr Sari, Mr Coskun and Mr Batak were talking at a barbecue at Ismail Gencoglu’s place. Mr Sari said he asked Mr Coskun if he had found a place to take the bag to. He said Mr Batak offered to take the bag, but said he did not want to keep it for too long and asked if the gun had bullets as he did not want to take it loaded. Mr Sari said he went home, retrieved the bag, and took it to Mr Batak’s place on his motorbike. He said at Mr Batak’s place he gave Mr Batak the bag and Mr Batak walked towards the garage.

181. Mr Sari agreed during his evidence that in his evidence given in 2022 in Mr Batak’s previous trial he said on 2 April 2019 Mr Batak arranged to meet him and told him that Mr Coskun had come to his house last night, he took his bag or Mr Batak gave him the bag, Mr Batak went upstairs to the toilet and when he came back Mr Coskun was gone. Mr Sari did not give that evidence in his evidence-in-chief in this trial.

182. I note also that the messages on 2 April to which I have referred earlier suggest Mr Sari solicited the meeting with Mr Batak through one of his housemates Mr Gumustas.

183. Mr Sari said he did not recall speaking to police about that conversation with Mr Batak. Detective Phillips said Mr Sari did not tell him about that conversation.

184. Mr Sari was not a satisfactory witness. He said, and I accept, that he had a fear of Cengiz Coskun and his associates. That seems not unreasonable in the circumstances of what Mr Coskun was accused of. Whether that accounts entirely for the manner in which Mr Sari gave much of his evidence is not clear. However Mr Sari, when being questioned by the Crown, avoided answering questions by giving long answers which evaded the question. The only evidence he volunteered, having sought and obtained the protection of a certificate under s 128 of the E**vidence A**ct, was his evidence about the guns originating from Cengiz Coskun. He disputed that he was tailoring his evidence to assist Mr Batak. It is clear from the recorded conversation between Mr Sari and Mr Batak at Mr Batak’s home on 17 July 2019 and from Mr Sari’s attendance at Auburn Hospital at around 4 AM on 2 April after his having received phone calls from Mr Coskun, that Mr Sari knew some things about the incident at the Five Dock apartment, and Mr Batak was prepared to confide in him. Whether Mr Sari’s reluctance to give frank evidence was attributable only to his role as a community worker in the Turkish community is doubtful. It seems from the recorded conversation that Mr Batak and Mr Sari were friendly, and that Mr Sari was advising Mr Batak and Ms Al Kahi that Ms Al Kahi did not need to speak to police. His friendship with Mr Batak, and Mr Batak having confided in him, in my view provides a motive for Mr Sari to have given the evidence he gave about the guns in Mr Batak’s possession having come from Mr Coskun. That causes me to doubt the veracity of that evidence. Furthermore that evidence is at odds with Mr Batak’s repeated statements to people in the recorded conversations that he gave Mr Coskun his, that is Mr Batak’s, gun on the night of 1 – 2 April. I formed the view I could not rely on that evidence from Mr Sari and I put it aside.

185. Another submission by Counsel as to why Mr Batak was lying in the asserted admissions was that he said Mr Coskun called him the next morning, in the recording of 28 June 2019, but there was no such call recorded in the phone records. I accept there is no recorded call at what would appear to be an apposite timeframe, given the other events. However that Mr Batak seems to have spoken inaccurately about that call does not necessarily mean that he was consciously lying at that time, but if he was, it does not mean that everything else he said in the asserted admissions, especially where the other statements are consistent with objective evidence, means that those other statements cannot be accepted.

186. Counsel submitted that when Mr Batak said to Mr Yalim and Mr Karaman in the conversation on 28 June 2019 that he did not know why Mr Coskun wanted “high viz” that that should be construed as him saying that he did not understand that Mr Coskun wanted the high visibility shirt for the purpose of carrying out an armed robbery, and therefore there was no agreement between Mr Batak and Mr Coskun for a robbery to occur. In my view that construction is not available in the context of all of the other comments by Mr Batak about his having given Mr Coskun his high visibility shirt, about which on all of the available evidence there can be no doubt. That statement may demonstrate that Mr Batak was bemused by or did not see sense in Mr Coskun wearing a high visibility shirt to perform a robbery, or it may have not been a frank answer to Mr Yalim and Mr Karaman’s question, but I do not accept that Mr Batak did not know the reason Mr Coskun asked for and obtained Mr Batak’s high visibility work shirts was for the purpose of the robbery for which he also asked for and received a gun.

187. Counsel also submitted that the statement by Mr Batak in the recorded conversations that Mr Coskun called or messaged a second person in his presence and arranged for that person to accompany him in the robbery could not be relied upon, because there was no corresponding phone call from Mr Coskun’s phone at that time and the phone tower records show Mr Coskun’s phone moving away from the Auburn cell towers. The consequence of that, Counsel submitted, was that there was no agreement formed between Mr Batak and Mr Coskun that Mr Coskun would perform the robbery with another person instead of Mr Batak. Counsel submitted that if it was found that Mr Batak did supply Mr Coskun with a gun and a high visibility work shirt that he did so for a different agreement involving himself and Mr Coskun which did not proceed.

188. I note that Mr Batak said to his wife in a recorded conversation that Mr Coskun contacted the other man using his Ciphr phone, and he was emphatic in speaking to her that it was a Ciphr. Evidence about Ciphr phones suggests that they permit communication which cannot be intercepted by police. Mr Coskun had a Ciphr phone on that night; it was found in the Corolla he was driving the next morning. The data able to be extracted from that phone by police, recorded in Tab 10 of Court Book 2, is scant.

189. There was also evidence of data being used on Mr Coskun’s J8 phone using the 397 number at 12:43 AM, 12:45 AM and 1:19 AM, being times which correspond approximately to the time when Mr Coskun’s phone was recorded as being at Mr Batak’s home. Mr Batak told people known to him that Mr Coskun made a call or sent a message in his presence to organise another person and told him, that is Mr Batak, that he had done so. The lack of precise evidence of a call, although the evidence of the qualities of the Ciphr phone and the data use on the J8 phone permit, in my view, the possibility of such a call being made, does not mean that Mr Batak’s statements to that effect should be disbelieved. The Crown is not required to prove every single fact in its case beyond reasonable doubt.

190. Mr Batak made the following statements relevant to the offence with which he is charged in the recorded conversations:

Cengiz Coskun called him and came to his house at 1 AM in the morning.

He, Mr Batak, was “broke”, and needed money.

Mr Batak had two guns at his home.

Mr Coskun asked to take one.

Mr Batak gave him one, which he described as “extended clip”.

They were in Mr Batak’s garage. Mr Coskun told him the “scenario”. His mate was “there” at the house. Everyone was “smacking out” or “shooting up”. He said there were two of them.

Mr Coskun said “let’s go together”, “it’s easy”. Mr Coskun explained they would go up on the balcony on the ground floor. The door was open, they would go straight in, “in and out nice and quick”.

Mr Batak was in his garage with Mr Coskun for about 10 minutes.

Mr Coskun asked him for “fluros”. Mr Batak gave him his work shirts. Mr Coskun was wearing his work shirt in the camera footage. Quantum Transport was the name on the shirt.

Mr Batak stood with Mr Coskun for about 10 minutes, thinking that he needed the money. He was “persuading” to go. At the last minute his stomach turned and he had to go to the toilet urgently.

He said they were in the garage getting everything ready. He, Mr Batak was going to go. They loaded the gun. He got his clothes and everything. Then he had to go to the toilet.

Mr Coskun said he had to go then. Mr Coskun was calling somebody else then and said “don’t worry I’ve got someone else”. Mr Batak told Mr Coskun to go. Mr Coskun said to Mr Batak “I’ll get something out of it and bring it to ya”.

Mr Batak gave Mr Coskun a Glock, a mini Glock, which was loaded. (I construe “loaded up” in the conversation of 28 June 2019, in the context of Mr Batak talking about a Glock, as a reference to loading the Glock, not a reference to loading a truck, as Counsel for Mr Batak contended by reference to messages sent by Mr Batak referring to loading and unloading trucks in the course of his truck driving work (Exhibit 5)).

Mr Coskun took Mr Batak’s gun. The gun was washed or wiped down completely.

Mr Batak was the last person Mr Coskun was with and then he left.

The car used was a white Corolla, which was used by a roommate of Mr Sari’s.

“The yellowish”, I infer a reference to Mr Coskun by reason of other references to him such as “Blondie”, “went in”.

The men entered the apartment by the first floor balcony and open door, having climbed up an electricity installation.

191. Many of those statements were consistent with other acceptable and accepted evidence adduced in the Crown case, as follows.

192. Mr Coskun attending Mr Batak’s home at Auburn around 1 AM on the morning of 2 April 2019 is supported by Mr Coskun’s phone records connecting with the Auburn Centre and Auburn West phone towers at about that time, his call to Mr Batak’s phone at 14 minutes past midnight (which call Mr Batak referred to in a recorded conversation), and messages between them about Mr Coskun not parking in the driveway and Mr Coskun telling Mr Batak to “come”, I infer to come down from his apartment to the garage.

193. A man matching Mr Coskun’s description had been seen at the apartment building in the day or so before the robbery, by Mr Bassos. Two occupants ordinarily lived in apartment 103. The physical layout of the apartment and balcony was correctly described. Mr Bassos saw two men leaving the apartment by way of the balcony and the infrastructure items around the front of the building. Two men were seen on the street going towards and later away from Mr Odisho’s apartment.

194. Mr Coskun was wearing a fluro shirt, which was linked to him by his DNA, the damage to the shirt corresponding to the wound on Mr Coskun’s side, and that it was abandoned in the Corolla he was driving when he went to Auburn Hospital. The Quantum Transport name on the shirt corresponded to Mr Batak having been provided with such shirts by Quantum Transport when he had briefly worked for them. Mr Coskun had never been employed by that firm. Mr Batak said in one of the conversations that he had five shirts and gave Mr Coskun two. Mr Roberts, the managing director of Quantum Transport, said he gave Mr Batak five such shirts in November 2018 before Mr Batak briefly worked for his business.

195. Mr Coskun was in possession of a Ciphr phone on that night, as found in the Corolla later that morning.

196. A Glock was fired in the apartment. 10 rounds were fired from the Glock in the apartment. That could be consistent with a 10 cartridge magazine, being an “extended clip”, for a G27 model Glock. Detective Phillips said the fact that a Glock was used in the shooting was not information which was in the public domain or in the media release released at about the time police were speaking to Ms Al Kahi and seeking to agitate conversation on the device in Mr Batak’s house.

197. The white Corolla was used by Mr Coskun and was used by Mr Sari’s housemate Hafiz Mohammadi.

198. That Mr Batak’s statements were made not to a police officer but to friends and his new wife, in seemingly unguarded conversations, being consistent with so many objective facts about the event in apartment 103, and the coherent, complete nature of Mr Batak’s statements, persuade me that they were reliable and can be accepted. I therefore do accept them and rely upon them. They are in my view compelling admissions of Mr Batak’s involvement in the offence charged.

Asserted tendency of Mr Batak

199. The balance of the calls were relied on by the Crown as demonstrating what the Crown asserted was a tendency by Mr Batak to plan and participate in drug “rips”.

200. In a telephone conversation on 20 April 2019 between Mr Batak and a Mr Tokdogan the two men discussed some other people who are planning a “rip”. Mr Batak says during the conversation “Like if the boys were planning on doing a rip they usually come and they would tell me first”. That demonstrates some knowledge by Mr Batak of people involved in drug “rips”.

201. In the balance of the calls between Mr Batak and Mr Khan from 29 April 2019 until 18 June 2019, the conversations were about proposed drug “rips” which Mr Khan told Mr Batak about.

202. Mr Khan gave evidence about these conversations. He was made available by the Crown, his evidence-in-chief was adduced by Counsel for Mr Batak and he was cross-examined by the Crown prosecutor. The effect of his evidence was that the scenarios he talked about with Mr Batak in those phone calls were not real but were made up, that he was trying to talk himself up to impress Mr Batak and other people, and also that he was drug affected at the time.

203. The calls were played during Mr Khan’s evidence. I do not propose to include extracts of them. I observed that a lot of the conversations involved Mr Khan talking a lot and Mr Batak saying very little in response. Mr Khan appeared to talk repeatedly about various proposals to rob specified places and people of drugs or money but it appears nothing happened with those proposals. I concluded from that pattern of a lot of talking and no action occurring that Mr Khan was making up the scenarios he presented to Mr Batak and they were not real or if there was a kernel of truth in them they were exaggerated and became more so as the conversations continued and the scenarios developed.

204. I will also observe however that when Mr Batak responded in more than monosyllables to Mr Khan he demonstrated purpose. So, in a conversation on 6 May 2019, the transcript of which is at Tab 22 of Court Book 3, in response to Mr Khan talking about a proposed robbery of a florist for drug-related money, Mr Batak said “cuz, if I knew it was one hundred per cent it was in the shop, I’d go with you, yeah?”.

205. In two later conversations on the same day, 6 May 2019, the transcripts of which are at Tabs 23 and 24 of Court Book 3, after Mr Khan had been telling Mr Batak that the information he had about the proposed “rip” had come from a mutual acquaintance, Hakan, Mr Batak told Mr Khan that he was going to go to the gym to see Hakan who had said he was going to be at the gym that night, to see what Hakan was going to say to him, and in the second call, almost an hour after the first, Mr Batak said that he was waiting for Hakan to come to the gym “now”.

206. In a telephone conversation on 4 July 2019, the transcript of which is at Tab 29 of Court Book 3, Mr Khan tells Mr Batak about a proposal to rob a woman and the person she was to meet for a drug supply transaction, of their drugs and money. Mr Batak says “Bro, cuz, line, line this one up and let’s get it done.” The conversation continues as:

| BATAK: | Well go meet up with her tonight. | | KHAN: | Mm. | | BATAK: | Tell her to call him, and buy off him. | | KHAN: | Tell her what? | | BATAK: | Tell her to call and get it off him. | | KHAN: | Yeah. | | BATAK: | And when he comes tonight just follow him home. |

207. Mr Khan prevaricated.

208. In respect of the Crown’s asserted tendency of Mr Batak I direct myself that I must only have regard to the evidence the Crown relies on for that purpose, that determining whether the asserted tendency is established involves the drawing of inferences, which requires care, including whether there might be alternative explanations for the evidence. If I am not satisfied that the asserted tendency can be inferred I must put the whole of that tendency evidence to one side and not have any regard to it. If I find the accused did have the asserted tendency, I can use that in considering whether it is more likely he committed the offence charged. Finding Mr Batak did have the tendency the Crown asserts is not alone sufficient to prove his guilt of the offence charged; it may assist the Crown to prove Mr Batak committed the offence charged.

209. The evidence which I have referred to from those phone calls of Mr Batak’s statements satisfies me that he had an interest in and a preparedness to engage in “drug rips”. In my view the Crown case is such that the tendency evidence is not necessary to prove Mr Batak’s guilt of the offence charged. However I will have regard to it as another circumstance in support of the Crown case, which makes it more likely that Mr Batak committed the offence charged.

210. I make the following factual findings.

211. John Odisho died from one 40 calibre bullet having been fired into his head from a Glock gun.

212. From the evidence of Larissa Mitchell‑Wiszniewski and of the several neighbours of a physical struggle, an argument and a worried voice pleading to someone to stop, followed by gunshots, I am satisfied beyond reasonable doubt that an attempted armed robbery occurred and during that attempted robbery a Glock firearm was fired and one bullet so fired struck John Odisho in his head.

213. I am satisfied beyond reasonable doubt that that shot which caused the bullet to strike John Odisho, causing his death, was a voluntary shot. I am so satisfied by the evidence of Christopher Preece that 10 rounds were fired from the Glock, that the operation of the Glock required a person using it to press the trigger each time to fire a round, from his assessment of the likely trajectories of different bullets, his opinion that the 10 x 40 calibre rounds were fired into Sargon Odisho ‘s bedroom from three places, and his opinion that the bullet trajectories indicated some movement of at least the body of the shooter.

214. On the issue of whether the Crown has proved beyond reasonable doubt that Cengiz Coskun was the person who shot John Odisho I take into account the combination of the following facts which I find established.

215. There were two men who intruded into apartment 103. One was wearing black clothing. One was wearing a high visibility yellow/green shirt. That man was Mr Coskun. He later discarded that shirt in the car he was driving, with gunshot damage to the shirt which coincided with the position of the gunshot wound on his body when he presented to Auburn hospital.

216. Larissa Mitchell‑Wiszniewski saw a hand holding a black handgun in the hallway of the apartment. The wrist of that hand had a long sleeved dark coloured top on. Mr Coskun left a black long sleeved jumper in the car he was driving when he went into Auburn hospital. The jumper had damage to it in a position consistent with the gunshot wound on Mr Coskun’s left side, and gunshot residue on it, from which I am satisfied that he was wearing that jumper in the apartment. Glocks are usually coloured black.

217. The man who entered John Odisho’s bedroom and confronted Larissa Mitchell‑Wiszniewski with a silver gun was wearing black clothes. I accept both of those pieces of evidence from her. That man was not Cengiz Coskun, as he was not wearing a high visibility shirt. Mr Coskun was wearing that shirt as he drove to the apartment, walked to the apartment, and as he left the apartment and ran down the street. He was in the apartment for a short time. It is unlikely that in that short time he took off the fluorescent shirt and went in to confront Ms Mitchell‑Wiszniewski then put it back on to escape from the apartment.

218. Mr Coskun’s clothing had DNA of Sargon Odisho and Mitchell‑Wiszniewski on it. The latter I am satisfied was transferred by John Odisho. Therefore I am satisfied that Mr Coskun had physical contact with Sargon Odisho and John Odisho in the apartment.

219. The sleeves of the high visibility shirt worn by Mr Coksun, the cuffs of the black jumper he wore and the outer top of the gloves he wore (which I am satisfied because they were left in his car with shirt and jumper and had his DNA inside one glove) had gunshot residue on them.

220. The gunshot residue in the area of the gunshot wound is explicable by the gunshot wound to him. The gunshot residue on his clothing and gloves could be explained by his being in the vicinity of a gun being fired. The gunshot residue on his gloves and jumper cuffs is also explicable by him having fired a gun, according to Christopher Preece. I take that into account with the other evidence.

221. Mr Coskun was shot by shell shot fired from a 38 revolver. From Sargon Odisho’s DNA on that gun I am satisfied that he shot Mr Coskun. Mr Coskun was shot at a distance of 40 - 60 cm between his shirt and the gun muzzle. Therefore he was in that close proximity to Sargon Odisho when he was shot by him.

222. Ten 40 calibre rounds were fired into Sargon Odisho’s bedroom, from the hallway outside the bedroom, within the doorway of the bedroom and just inside the doorway. Sargon Odisho sustained three gunshot wounds to his left arm. John Odisho sustained one gunshot wound to his head, from a 40 calibre bullet fired from a Glock.

223. Mr Batak admitted he had given Mr Coskun a gun he described as a mini Glock with an extended clip. A Glock 27 model could be described as a mini Glock. One larger than standard magazine for the 27 model has 10 rounds, rather than the standard nine. Having regard to all that evidence I am not persuaded that Mr Coskun, having obtained a Glock from Mr Batak, used another gun in the robbery or gave the Glock to the other man with him.

224. From the combined effect of all those pieces of evidence I am satisfied beyond reasonable doubt that Cengiz Coskun was the man who discharged the 40 calibre bullet from a Glock during the attempted robbery, which bullet entered John Odisho’s head and caused his death.

225. I am satisfied beyond reasonable doubt by his own admissions, which I have set out above, that Mr Batak agreed with Cengiz Coskun to rob, armed with a Glock, the people about whom Mr Coskun told him in the scenario, who were on Mr Coskun’s account involved in drug activity. He agreed to accompany Mr Coskun, was readying his clothes and had loaded the gun when he felt an urgent need to go to the toilet. Mr Coskun arranged an alternative person to accompany him to conduct the robbery, while at Mr Batak’s home and in his presence. Mr Coskun offered Mr Batak a share in the anticipated proceeds of the robbery, such financial reward being Mr Batak’s admitted motive for agreeing to participate in the robbery.

226. I am satisfied beyond reasonable doubt that in accordance with that agreement Mr Batak gave Mr Coskun his Glock, a compact model, with at least a 10 shot magazine, for use in the robbery. I am satisfied of that beyond reasonable doubt by Mr Batak’s own admissions, together with the evidence that a Glock was fired in the apartment during the attempted armed robbery.

227. I am satisfied beyond reasonable doubt that, in accordance with that agreement Mr Batak gave Mr Coskun two of his high visibility fluro coloured work shirts, when Mr Coskun asked for two such shirts. I am satisfied beyond reasonable doubt of that fact by Mr Batak’s own words saying that, and the evidence linking Mr Batak to the shirt worn by Mr Coskun while committing the robbery, through the name of Mr Batak’s former contractor, confirming his admission that he gave the shirts to Mr Coskun.

228. I am satisfied beyond reasonable doubt that Mr Batak did not withdraw from the agreed crime. He did not intend to withdraw because he wanted a share of the proceeds of the robbery.

229. He agreed to Mr Coskun carrying out the agreed robbery with a change of personnel. He did not take back his gun or high visibility shirt. Even in his candid admissions that when he heard the next morning of the shooting he thought about how close he was to going with Mr Coskun to the robbery, he did not say to anyone that he tried to dissuade Mr Coskun from carrying out the robbery or request the return of his gun and shirts. Even when challenged by his new wife about his participation he did not say any such thing to her about withdrawing or attempting to stop Mr Coskun.

230. Therefore, I am satisfied beyond reasonable doubt that the Crown has proved each element of the offence charged required to be proved and I find Mr Batak guilty of the offence of murdering John Odisho.

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Amendments

06 March 2026

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