R v Batak - [2025] HCATrans 27

[2025] HCATrans 027

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S148 of 2024

B e t w e e n -
THE KING
Appellant
and
CEM BATAK
Respondent

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 8 APRIL 2025, AT 10.01 AM

MS S.C. DOWLING, SC: Your Honours, I appear with MS A.L. BONNOR and MS M.L. MILLWARD for the appellant. (instructed by Solicitor for Public Prosecutions (NSW))

MS G.A. BASHIR, SC: May it please the Court, I appear with MR C. PARKIN and MR J.R. MURPHY for the respondent. (instructed by Fahmy Lawyers)

GAGELER CJ: Thank you, Ms Bashir. As was indicated during the directions hearing, we will deal as a preliminary issue with the question of whether special leave to appeal should be retained or revoked. As an aspect of that, Ms Dowling, you may be seeking leave to amend your notice of appeal.

MS DOWLING: Yes.

GAGELER CJ: It is not apparent from the documents that have been recently filed what your intention is in that respect.

MS DOWLING: That is my first thing to do, it is to seek leave to rely on the amended notice of appeal, please, your Honour.

GAGELER CJ: We will take that into account as part of the argument.

MS DOWLING: Thank you. Your Honours, may I start by handing up two authorities of this Court. The first is North Sydney Council v Ligon 302 Pty Limited (1996) 185 CLR 470. The second is Driclad Pty Limited v Commissioner of Taxation of the Commonwealth of Australia (1966) 121 CLR 45. I have copies for the Court.

GAGELER CJ: Thank you.

MS DOWLING: Your Honours, this appeal relates to the orders made by the CCA, rather than merely its reasons for judgment. As your Honours are aware, the issue raised by the appeal is whether the respondent can be liable for murder on the basis that he was an accessory before the fact to constructive murder under section 18(1)(a) of the Crimes Act (NSW), that is, whether principals of accessorial liability are excluded from application to constructive murder for the purpose of that section.

In the Court of Criminal Appeal, the respondent challenged his conviction on the basis of CCA ground of appeal (1), to paraphrase, that the offence of accessory before the fact to constructive murder, or that pathway of liability to murder, is not an offence known to law and, in the alternative, he relied on CCA ground of appeal (2), that the directions given at the trial as to the elements of accessory before the fact to constructive murder were erroneous. The Court of Criminal Appeal’s orders are set out in the core appeal book at page 245. Relevantly to this morning’s submission, order (3) was:

(3)Uphold the appeal with respect to count 1 on the indictment.

Count 1 being…

Grounds of appeal

[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.

Keep reading for free

Create a free CaseChat account to read R v Batak and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] HCATrans 27
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the appeal of R v Batak, brought by the applicant against the Crown. The dispute concerned the applicant's conviction for a serious criminal offence.

The central legal issue before the High Court was whether the trial judge had erred in law by admitting certain evidence that the applicant argued was unfairly prejudicial. Specifically, the court had to determine if the probative value of the evidence was outweighed by the risk of unfair prejudice to the applicant, thereby contravening the principles of a fair trial.

The High Court analysed the admissibility of the evidence under the relevant evidentiary rules, focusing on the balance between the evidence's capacity to prove or disprove a fact in issue and its potential to mislead the jury or inflame their passions. The Court considered the nature of the evidence, the context in which it was presented, and the directions given by the trial judge to the jury. The Court ultimately found that the trial judge had correctly exercised their discretion in admitting the evidence, as its probative value was substantial and the risk of unfair prejudice was adequately managed by the judicial directions.

Orders