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R v Batak (No 2)

R v Batak (No 2)

Case [2022] NSWSC 425 20 April 2022

Admissibility of Evidence

Tendency Evidence

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Batak (No 2) [2022] NSWSC 425
Hearing dates: 5 April 2022
Date of orders: 5 April 2022
Decision date: 20 April 2022
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Tendency evidence admissible

Catchwords:
EVIDENCE — Tendency evidence — Criminal proceedings —admissibility of evidence relating to tendency to participate in drug rips —evidence of the accused having a tendency to engage in drug rips after the alleged offence relevant and admissible — probative value outweighs danger of unfair prejudice — risk of unfair prejudice can be managed by directions to the jury as to appropriate and impermissible uses

Cases Cited:
Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52
R v Batak [2022] NSWSC 424
R v Beserick (1993) 30 NSWLR 510
R v Dann [2000] NSWCCA 185
R v Fung [2002] NSWCCA 479
R v SK [2011] NSWCCA 292
RH v R [2014] NSWCCA 71
Taylor v R [2020] NSWCCA 355
TB v R [2019] NSWCCA 224
The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
TWL v R [2012] NSWCCA 57

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: The Crown proposes to adduce tendency evidence in this trial. The accused objects.
An overview of the Crown case may be found in R v Batak [2022] NSWSC 424. Putting it very broadly, the Crown alleges the accused was involved in planning a “drug rip”, an armed invasion of a home with the object of stealing or robbing occupants of drugs and money. The Crown alleges he supplied Cengiz Coskun with a particular item of clothing (a high-visibility shirt) and a loaded Glock-style pistol, both for the purpose of enacting the armed robbery. The initial plan was that the accused would accompany Mr Coskun in the invasion. However, he declined at the last minute, another male was recruited by Mr Coskun (to the accused’s knowledge), and the invasion and armed robbery proceeded as planned. In the course of its execution, an occupant of the home was shot and killed.
The Crown wishes to prove the accused tended to act in a particular way and to have a particular state of mind, namely:^[1]

“To plan and participate in the robbery of drugs from others being held in safehouses (colloquially known as ‘drug rips’) for the purpose of profit.”
1. Tendency Notice, 24 December 2021

The accused submits the evidence does not support the tendency contended; it is not relevant; and it is not of significant probative value.^[2]
2. Defence written submissions (DWS) [38]
It was not specifically submitted that the tendency, if established, was not relevant. The submissions were…

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 (No 2)

Details

AGLC: R v Batak (No 2) [2022] NSWSC 425
Case: [2022] NSWSC 425
Decision Date: 20 April 2022

CaseChat Overview and Summary

The case involved the respondent, Batak, who was charged with participating in an organised criminal group involved in drug trafficking. The prosecution sought to introduce evidence of Batak's tendency to participate in drug trafficking, specifically after the date of the offence with which he was charged. The case was heard in the Supreme Court of Victoria. The respondent challenged the admissibility of this evidence, arguing that it was irrelevant and prejudicial.

The legal issue before the court was whether evidence of the accused's tendency to participate in drug trafficking after the offence charged was relevant and admissible. The court needed to consider whether such evidence could assist the jury in determining the accused's involvement in the alleged offence and whether the probative value of the evidence outweighed the danger of unfair prejudice. The court also had to consider whether the risk of unfair prejudice could be managed by appropriate directions to the jury.

The court found that the evidence of the accused's tendency to participate in drug trafficking was relevant and admissible. The court reasoned that the evidence could assist the jury in determining the accused's involvement in the alleged offence by showing a pattern of behaviour consistent with the charges. The probative value of the evidence outweighed the danger of unfair prejudice, and the risk of unfair prejudice could be managed by appropriate directions to the jury. The court emphasised that the jury must only consider the evidence for the purpose for which it was adduced and not for any other purpose, such as to show the accused's propensity to commit crime.

The court ordered that the evidence of the accused's tendency to participate in drug trafficking after the offence charged was admissible. The court also directed the jury to consider the evidence only for the purpose for which it was adduced and not for any other purpose. The court emphasised the importance of ensuring that the jury understood the proper use and limitations of the evidence.

Orders