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 Beserick (1993) 30 NSWLR 510
The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
Category: Procedural rulings Parties: Regina
Cem BatakRepresentation: Counsel:
Solicitors:
Ms S Traynor (Crown)
Mr T Hughes (Accused)
Solicitor for Public Prosecutions
Fahmy Lawyers
File Number(s): 2019/260254
Judgment
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HIS HONOUR: The Crown proposes to adduce tendency evidence in this trial. The accused objects.
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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.
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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
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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]
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It was not specifically submitted that the tendency, if established, was not relevant. The submissions were…
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- AGLC
- R v Batak (No 2) [2022] NSWSC 425
- Case
- [2022] NSWSC 425
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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