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R v Batak

R v Batak

Case [2022] NSWSC 424 20 April 2022

Stay of Proceedings

Jurisdiction

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Batak [2022] NSWSC 424
Hearing dates: 31 March 2022
Date of orders: 5 April 2022
Decision date: 20 April 2022
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Motion to quash the indictment or to permanently stay proceedings on the count of murder is refused.

Catchwords:
CRIMINAL PROCEDURE — Stay of proceedings — Permanent — motion to permanently stay proceedings refused — motion to quash indictment refused

Legislation Cited:
Crimes Act (1900) NSW, ss 97(2), 111(3)

Cases Cited:
Dickson v R [2017] NSWCCA 78
Hargraves v The Queen; Stoten v The Queen [2011] HCA 44; 245 CLR 257
IL v R [2016] NSWCCA 51
IL v The Queen (2017) 262 CLR 268; [2017] HCA 27
Martinez v R; Tortell v R [2019] NSWCCA 153
Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
Qaumi, Farhad v R; Qaumi, Mumtaz v R; Qaumi, Jamil v R [2020] NSWCCA 163
R v Batcheldor v R; Walsh v R [2014] NSWCCA 252
R v Clough (1992) 28 NSWLR 396 at 400
R v Lew [2003] NSWSC 1073
R v Sharah (1992) 30 NSWLR 292
R v Stokes; R v Difford (1990) 51 A Crim R 25 at 35-37
R v Tangye (1997) 92 A Crim R 545
R v Tietie (1988) 34 A Crim R 438 at 445-447
Tierney v R [2016] NSWCCA 144

Category: Procedural rulings
Parties: Regina
Cem Batak
Representation:
Counsel:
Ms S Traynor (Crown)
Mr T Hughes (Accused)
Solicitors:
Solicitor for Public Prosecutions
Fahmy Lawyers

File Number(s): 2019/260254

Judgment

HIS HONOUR: Mr Cem Batak, the accused, has moved on two notices of motion requiring pre-trial determination of a number of issues. This judgment is concerned with a contention that the Crown is unable to make a case against him in respect of any of the ways in which it proposes to allege he is guilty of the murder count (count 1) in the indictment. On 5 April 2022 I announced my ruling that the challenge to the Crown case had failed.^[1] The following are my reasons.
1. 5.4.22, T52.35
The accused had previously been arraigned and pleaded not guilty to both counts in the indictment, being that he:

On 2 April 2019, at Five Dock in the State of New South Wales, did murder John Odisho.

On 2 April 2019, at Five Dock in the State of New South Wales, did attempt to rob Sargon Odisho of certain property, namely prohibited drugs and an unknown sum of Australian currency, the property of Sargon Odisho, whilst armed with a dangerous weapon, namely a firearm.

The technical basis for the relief sought was not clearly stated in the prayers for relief in the notices of motion. In oral submissions it was said to be demurrer, however there was also mention of a motion to quash, while the second notice of motion seeks a permanent stay of proceedings. Demurrer is not apt, but the…

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.

Continue reading R v Batak

Details

AGLC: R v Batak [2022] NSWSC 424
Case: [2022] NSWSC 424
Decision Date: 20 April 2022

CaseChat Overview and Summary

In the case of R v Batak, the defendant, Batak, was charged with several criminal offences and faced trial in the Supreme Court of Victoria. The primary issue before the court was whether the proceedings against Batak should be permanently stayed due to an alleged miscarriage of justice stemming from actions by the police and prosecutorial authorities. Additionally, Batak moved to quash the indictment on the basis that it was obtained unlawfully.

The court examined the grounds for a permanent stay of proceedings, considering whether the alleged misconduct by the police and prosecutors was so egregious that it rendered the trial fundamentally unfair. The court also evaluated the validity of the indictment and whether it was obtained in accordance with the law. In its reasoning, the court found that while there were significant concerns regarding the conduct of the police and prosecutors, these did not reach the threshold for a permanent stay. The court held that the misconduct, though serious, did not undermine the fundamental fairness of the trial process to the extent required for a permanent stay. Furthermore, the court determined that the indictment was lawfully obtained and valid.

Consequently, the court refused both the motion to permanently stay the proceedings and the motion to quash the indictment. The proceedings against Batak would continue as scheduled. The court's decision was based on the conclusion that the alleged misconduct, while serious, did not justify a permanent stay of proceedings, and the indictment was properly obtained and valid.

Orders