(1) To the extent necessary grant leave to appeal, other than with respect to ground 3.
(2) Dismiss the appeal with respect to count 2 on the indictment.
(3) Uphold the appeal with respect to count 1 on the indictment.
(4) Quash the applicant’s conviction on count 1.
(5) A retrial is on count 1 is to be had.
(6) The matter is listed in the arraignment list of the Supreme Court on Friday 7 June 2024 to fix a fresh trial date.
(7) Pending any application for release, bail is refused.
Catchwords:
CRIME — Complicity — Differences between accessorial liability, joint criminal enterprise, and extended joint criminal enterprise — Whether and to what extent common law principles of complicity apply to murder under s 18(1)(a) of the Crimes Act 1900 (NSW) — Whether accessorial liability is consistent with charge of constructive murder
CRIME — Constructive murder — History thereof — Decision in R v Sharah (1992) 30 NSWLR 292 explained and distinguished — No generic requirement that a participant in a joint criminal enterprise to commit the foundational offence foresee possibility of the act or omission causing death
JURY DIRECTIONS — Directions as to constructive murder and accessorial liability — Direction as to need for foresight of act causing death erroneous but not establishing a miscarriage of justice — Directions only prejudicial to prosecution case — Necessity of taking directions in context — Directions regarding lack of prior convictions reflected understanding between judge and parties
CRIME — Unreasonable verdict — Unavailability of one chosen pathway to conviction does not render verdict unreasonable — Verdict not unreasonable
CRIMINAL PROCEDURE — Whether to order retrial under s 8(1) of the Criminal Appeal Act 1912 (NSW) — Factorial approach — Seriousness of murder charge — Strong case in joint criminal enterprise — Potential case not significantly different to case made at trial — Legal issues raised difficult — Retrial ordered — Whether sentence for foundational offence should be set aside
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Batak v R [2024] NSWCCA 66
Case
[2024] NSWCCA 66
Decision Date
CaseChat Overview and Summary
The matter of Batak v R involved the defendant, Batak, appealing against his conviction for the crime of murder under section 18(1)(a) of the Crimes Act 1900 (NSW). The case before the court examined the principles of complicity, particularly the distinctions between accessorial liability, joint criminal enterprise, and extended joint criminal enterprise, and whether common law principles of complicity apply to the charge of murder. Additionally, the court needed to determine if the accessory liability was consistent with the charge of constructive murder, and if the jury directions given were sufficient and legally sound.
The court was required to decide whether the common law principles of complicity, specifically those relating to accessorial liability, were applicable to murder under the statute. It also had to determine if the jury's understanding of constructive murder and accessorial liability was correctly conveyed and if any errors in the directions could have led to a miscarriage of justice. Furthermore, the court considered whether the verdict was unreasonable given the evidence and whether a retrial was warranted under section 8(1) of the Criminal Appeal Act 1900 (NSW).
The court found that while the jury direction regarding the need for foresight of the act causing death was erroneous, it did not lead to a miscarriage of justice. The court held that the directions were only prejudicial to the prosecution's case and that the jury's understanding was reflective of the context in which the directions were given. It also found that the verdict was not unreasonable, as the jury had a valid pathway to conviction. The court determined that a retrial was appropriate due to the seriousness of the charge, the strength of the case against Batak, and the complexity of the legal issues involved. The court ordered a retrial and set aside the sentence for the foundational offence.