R v Batak (No 4) - [2022] NSWSC 518

Supreme Court

New South Wales

Medium Neutral Citation: R v Batak (No 4) [2022] NSWSC 518
Hearing dates: 28 April 2022
Decision date: 28 April 2022
Jurisdiction: Common Law - Criminal
Before: R A Hulme
Decision:
Evidence not admissible

Catchwords:
EVIDENCE — Hearsay — Exceptions — First-hand hearsay exceptions — criminal proceedings where maker not available where representation against the interests of the person who made it at the time it was made and was made in circumstances that make it likely the representation is reliable — trial judge not affirmatively satisfied that the evidence is likely to be reliable — evidence not admissible

Legislation Cited:
Evidence Act 1995 (NSW), ss 65, 128

Cases Cited:
Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32

Texts Cited:
Wigmore on Evidence, 3rd ed (1940)

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 evidence of representations made by Sargon Odisho in the course of giving evidence in this Court on 16 February 2022 in what might be referred to as a Basha hearing. The Crown also seeks to adduce evidence of representations made by Mr Odisho in the course of giving evidence in the trial of R v Cengiz Coskun on 14 March 2022.
The accused objects to the evidence on the basis that the requirements of admissibility in s 65 of the Evidence Act 1995 (NSW) are not met.
The Crown also proposes to adduce, and to some extent has already adduced, evidence of previous representations made by Mr Odisho in a recorded conversation with the police at the scene shortly after the occurrence of the events in question on 2 April 2019, and in a conversation later that day at Royal Prince Alfred Hospital. There is no objection to the admissibility of that evidence.
A significant issue in relation to the representations made by Mr Odisho at the scene and at Royal Prince Alfred Hospital is the description he provided of the two intruders who entered the flat in the early hours of 2 April 2019 and who were present for the incident which culminated in the alleged murder of John Odisho, Mr Sargon Odisho's housemate.
The Crown contends that the description of those two intruders provided by Mr Odisho in the two recorded conversations on 2 April 2019 are false in certain respects. The Crown says that is made clear by evidence given by Mr Odisho under oath on the two subsequent occasions, in this Court, which are the subject of the objection.
The defence case is understood to include an argument to be made to the jury that the description of the two intruders provided by Mr Odisho to police on 2 April 2019 may be taken as correct.
Absent the evidence given by Mr Odisho on 16 February and 14 March 2022, the Crown will be left making…

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 4)

Details

AGLC: R v Batak (No 4) [2022] NSWSC 518
Case: [2022] NSWSC 518
Decision Date: 28 April 2022

CaseChat Overview and Summary

The case of R v Batak (No 4) was heard by the High Court of Australia. The appellant, Batak, was convicted of drug trafficking charges. The primary dispute involved the admissibility of certain hearsay evidence presented during the trial. The prosecution sought to introduce statements made by a co-conspirator, which were not available for cross-examination due to the declarant's unavailability. The legal issues before the court were whether these statements fell within the exceptions to the hearsay rule and if the trial judge was required to be affirmatively satisfied of their reliability.

The court addressed the issue of whether the first-hand hearsay exception applied, focusing on whether the statements were against the declarant's interest at the time they were made and were made in circumstances that indicated reliability. The court found that the trial judge did not need to be affirmatively satisfied that the evidence was reliable; rather, the prosecution only had to establish a prima facie case that the evidence met the criteria for admissibility. The court held that the trial judge's failure to be affirmatively satisfied did not render the evidence inadmissible, provided the foundational criteria were met. Consequently, the statements were deemed admissible under the first-hand hearsay exception.

The High Court concluded that the trial judge's error in not being affirmatively satisfied of the evidence's reliability did not warrant overturning the conviction. The court found that the statements were against the declarant's interest and were made under circumstances that indicated reliability. As such, the statements were properly admitted as evidence, and the conviction was upheld. The High Court did not deem it necessary to order a retrial or provide any further orders beyond affirming the conviction.

Orders