Coskun v The King

Case [2024] NSWCCA 67



Court of Criminal Appeal
Supreme Court

New South Wales

Case Name: 

Coskun v R

Medium Neutral Citation: 

[2024] NSWCCA 67

Hearing Date(s): 

5 February 2024

Date of Orders:

10 May 2024

Decision Date: 

10 May 2024

Before: 

Kirk JA, Wilson and Ierace JJ at [1]

Decision: 

(1) To the extent necessary grant leave to appeal in relation to the applicant’s convictions, other than with respect to ground 5.
(2) Dismiss the appeal with respect to the convictions.
(3) Grant leave to appeal in relation to the applicant’s sentence.
(4) Dismiss the appeal with respect to sentence.

Catchwords: 

CRIME – Murder – s 18(1)(a) Crimes Act 1900 (NSW) – Attempted robbery whilst armed with a dangerous weapon – s 97(2) Crimes Act
 
CRIME – Constructive murder – Joint criminal enterprise – Extended joint criminal enterprise – Elements of constructive murder – Whether trial judge erred in directing jury – Not necessary that the act causing death must be done by the accused, or be within the scope of a joint criminal enterprise – Acts of those involved in the JCE are attributed to each other – No further mental element required as regards death
 
DEFENCES – Self-defence – Availability to constructive murder – Self-defence unavailable
 
EVIDENCE – Tendency evidence – Test for admitting tendency evidence – Significant probative value within the meaning of s 97(1)(b) Evidence Act 1995 (NSW) – Balancing with unfair prejudice under s 101 Evidence Act – Unnecessary to identify specific reasons behind tendency – Importance of framing tendency – Levels of generality – Danger in framing tendency evidence in too wide or narrow a manner – Evidence has significant probative value – Evidence unlikely to unfairly prejudice applicant – Applicant did not seek further directions on the point at trial
 
SENTENCE – Whether sentence was manifestly excessive – Need to tailor sentence for constructive murder to circumstances of the case – Serious offence – Multiple aggravating factors – Lack of remorse or insight into moral culpability – Sentence not manifestly excessive

Legislation Cited: 

Crimes Act 1900 (NSW) ss 18(1), 97(2), 418-421
Crimes Amendment (Self-defence) Act 2001 (NSW)
Criminal Appeal Act 1912 (NSW) s 6(1)
Criminal Law Amendment Act 1883 (NSW)
Criminal Law Consolidation Act 1935 (SA) ss 11, 12A
Evidence Act 1995 (NSW) ss 97(1)(b), 101, 137
Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15

Cases Cited: 

ARS v R [2011] NSWCCA 266
Batak v R [2024] NSWCCA 66
Beattie v R [2021] NSWCCA 291
Edwards v The Queen [2021] HCA 28; (2021) 273 CLR 585
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
GBF v The Queen [2020] HCA 40; (2020) 271 CLR 537
Greenhalgh v R [2017] NSWCCA 94
HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
House v The King [1936] HCA 40; (1936) 55 CLR 499
Hudd v R [2013] NSWCCA 57
Hughes v The Queen [2017] HCA 20

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Coskun v The King [2024] NSWCCA 67
Case
[2024] NSWCCA 67
Decision Date

CaseChat Overview and Summary

In Coskun v The King, the defendant was convicted of murder under s 18(1)(a) Crimes Act 1900 (NSW) for his involvement in an attempted robbery where a dangerous weapon was used. The case revolved around the defendant's participation in a joint criminal enterprise and the subsequent death of a victim during the course of the crime. The defendant argued that the trial judge erred in directing the jury on the elements of constructive murder, particularly regarding the act causing death. The court was required to determine whether the act causing death needed to be performed by the accused or within the scope of the joint criminal enterprise and if further mental elements were required in relation to the death.

The court clarified that in the context of constructive murder within a joint criminal enterprise, the acts of all participants are attributed to each other. It was not necessary for the act causing death to be performed by the accused, nor did it need to be within the scope of the joint criminal enterprise. The court found that no additional mental element was required in relation to the death. Additionally, the court addressed the issue of self-defence, ruling that it was not available as a defence to constructive murder in such circumstances. The court also considered the admissibility of tendency evidence under s 97(1)(b) Evidence Act 1995 (NSW), determining that the evidence had significant probative value and was unlikely to unfairly prejudice the applicant.

The reasoning of the court led to the conclusion that the defendant's sentence was not manifestly excessive. The court emphasised the need to tailor the sentence for constructive murder to the specific circumstances of the case, considering the seriousness of the offence and multiple aggravating factors, including the defendant's lack of remorse or insight into moral culpability. The sentence was deemed appropriate given the nature and circumstances of the crime.

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Background

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Evidence

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Decision

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