R v Batak (No 6)

[2025] NSWSC 658

Supreme Court

New South Wales

Medium Neutral Citation:

R v Batak (No 6) [2025] NSWSC 658

Hearing dates:

5-6 June 2025

Date of orders:

26 June 2025

Decision date:

26 June 2025

Jurisdiction:

Common Law

Before:

Yehia J

Decision:

(1) Pursuant to s 132 of the Criminal Procedure Act 1986 (NSW), I order that the trial of Mr Cem Batak proceed by way of judge alone.

Catchwords:

CRIMINAL LAW – Murder – application for judge alone trial – retrial – where the matter has a protracted and unusual history – where the Crown case relies on constructive murder by way of joint criminal enterprise – whether it is in the interests of justice to grant the order sought – whether the complexity of the issues are such that it is in the interests of justice that the order be granted – where there is a strong interest in efficiencies and finality in the trial – whether a jury is better placed to assess credibility – application for a judge alone trial granted

Legislation Cited:

Criminal Procedure Act 1986 (NSW), ss 131, 132, 132A

Cases Cited:

AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8

Arthurs v State of Western Australia [2007] WASC 182

Cheng v The Queen (2000) 203 CLR 248; [2000] HCA 53

Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197

R v Abdaly; R v Hosseinishoja(No 3) [2022] NSWSC 1511

R v Abrahams (2013) 230 A Crim R 74; [2013] NSWSC 729

R v Ahmed [2022] NSWSC 1268

R v Batak (No 2) [2022] NSWSC 425

R v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86

R v Dawson [2022] NSWSC 552

R v Hadler [2018] NSWSC 1151

R v Niguidula [2023] NSWSC 290

R v Obeid [2015] NSWSC 897

R v Qaumi & Ors (No 14) (Judge alone application) (2016) 265 A Crim R 575; [2016] NSWSC 274

R v Sean Lee King (2013) 228 A Crim R 406; [2013] NSWSC 448

R v Simmons; R v Moore (No 4) (2015) 249 A Crim R 120; [2015] NSWSC 259

R v Stanley [2013] NSWCCA 124

R v White [2024] NSWSC 1369

R v XY [2024] NSWSC 1472

Redman v R [2015] NSWCCA 110

RKF v The Queen [2016] NSWCCA 116

Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4

The King v ZT (2025) 99 ALJR 676; [2025] HCA 9

Texts Cited:

Lord Devlin, Trial by Jury (rev ed, 1966)

Category:

Procedural rulings

Parties:

Cem Batak (Applicant)
Rex (Respondent)

Representation:

Counsel:
C Parkin with B Gooch (Applicant)
S Traynor (Respondent)

Solicitors:
Fahmy Lawyers (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2019/00260254

Publication restriction:

Nil

JUDGMENT

Introduction

1. On 2 April 2019, two men broke into an apartment to steal drugs and money. Two people resided at the apartment: Sargon Odisho and John Odisho. Each intruder was armed with a handgun. One of the intruders was Cengiz Coskun (“Coskun”). He shot John Odisho in the head causing his death.

2. Mr Batak (“the applicant”) was not present at the robbery. It is alleged that earlier that night, the applicant supplied Coskun with a loaded Glock pistol and a high visibility shirt for use in the robbery.

3. The applicant has been indicted to stand trial on one count of murder. The proceedings have had a long, unique, and somewhat complicated history. An overview of that history is set out below. I am dealing with an application for the trial to proceed as a judge alone trial. The application is resisted by the Crown (“the respondent”).

4. The applicant moves on a Notice of Motion filed 21 May 2025 seeking an order for a judge alone trial pursuant to s 132 of the Criminal Procedure Act 1986 (NSW) ("CPA"). I am satisfied that the applicant has sought and received advice in relation to the effect of such an order from an Australian legal practitioner.

Procedural history

5. The following history, as far as is relevant to this application, is extracted from the very helpful affidavit of Ms Jessica Fahmy sworn on 21 May 2025.

6. On 21 August 2019, the applicant was charged with murder and bail refused. On 6 April 2022, the applicant was arraigned before R A Hulme J and a jury of 15. He pleaded not guilty to the indictment which contained two counts. Count 1 was an allegation of being an accessory before the fact to constructive murder. Count 2 alleged that the applicant was an accessory before the fact to attempted armed robbery.

7. On 19 May 2022, the jury (in the second trial, the first having been aborted), returned verdicts of guilty to both counts. The applicant was sentenced on 16 September 2022. R A Hulme J imposed sentence as follows:

1. Count 1: A total term of imprisonment of 14 years commencing on 21 August 2019 and expiring on 20 August 2033, with a non-parole period of 10 years and 6 months, expiring on 20 February 2030.

2. Count 2: A fixed term of imprisonment of 2 years, dating from 21 August 2019 and expiring on 20 August 2021.

8. The applicant appealed his conviction to the New South Wales Court of Criminal Appeal (“CCA”). On 10 May 2024, the Court upheld the appeal with respect to count 1 and quashed the applicant’s conviction, ordering a retrial. It is not necessary to summarise the grounds of appeal or the reasoning of the CCA.

9. On 7 June 2024, the NSW Director of Public Prosecutions (“the Crown”) filed an application for special leave to appeal to the High Court against the decision of the CCA. The sole ground of appeal was that the CCA erred in concluding that accessory before the fact to constructive murder was not an offence known to law.

10. On 7 November 2024, special leave was granted by the High Court in respect of the Crown’s application. On 27 February 2025, the applicant filed a Notice of Contention in the High Court.

11. On 16 December 2024, the applicant applied for, and was granted, strict conditional bail in the New South Wales Supreme Court.

12. On 8 April 2025, the appeal was listed for hearing before the full Court of the High Court. Following the hearing, the High Court, by majority, revoked special leave. Once again, it is not necessary to refer to the reasoning of the majority.

13. The result is that the order made by the CCA stands. The applicant must be retried. On his retrial, the Crown will proceed with one count of murder. The Crown now eschews any reliance on liability as an accessory before the fact. The Crown will proceed against the applicant solely on the basis that he is liable for constructive murder as part of a joint criminal enterprise.

14. It will be discerned from this brief history that the applicant faced two trials, the first trial not being heard to completion. He then came before the CCA (after conviction and sentence in the second trial) where a retrial was ordered. The matter proceeded to the High Court on an application by the Crown for special leave to appeal the decision of the CCA. That application was granted. The High Court, by majority, then revoked special leave. The applicant is now to be tried for a third time.

15. Although a successful appeal and order for retrial cannot be characterised as unique or even rare, the particular history of this case is somewhat unusual.

The Crown case

16. An overview of the Crown case and the elements of the offence are helpfully set out in a section of the Crown Case Statement titled “Statement of Liability and Elements”.

17. The Crown contends that the applicant entered into an agreement with Coskun and another unknown man to commit an armed robbery with a dangerous weapon, namely a gun. It is the Crown case that the applicant agreed to rob the occupants of an apartment of money or drugs and that he had intended to participate in the robbery with Coskun to give effect to the agreement.

18. It is alleged that the applicant participated in the agreement by giving Coskun a loaded Glock self-loading pistol and a high visibility vest. The applicant decided not to go after Coskun told him that he had found someone else to accompany him.

19. The elements that the Crown would need to prove are:

1. The applicant agreed with Coskun to commit an armed robbery whilst Coskun was armed with a dangerous weapon and accompanied by another unknown man.

2. The applicant participated in the joint criminal enterprise by providing a gun and a high visibility vest to Coskun.

3. That Coskun and the unknown man attempted to commit the armed robbery whilst armed with a dangerous weapon, namely a gun. That is:

1. They attempted to steal property by threat of force;

2. Whilst Coskun was armed with a dangerous weapon, namely a gun.

4. That during the course of the attempted armed robbery, Coskun shot John Odisho causing his death.

20. The Crown case relies on circumstantial evidence which includes a pattern of communications between the applicant and Coskun in the lead up to the offence; the request for a high visibility shirt two hours before the offence; the attendance by Coskun at the applicant’s premises in the early hours of the morning a few hours before the offence; discussion and planning about how to commit the robbery including details of how to gain entry to the premises; a conversation captured by listening device where the applicant admits he had agreed to go with Coskun and gave him the loaded Glock and got their clothes ready and that Coskun had found someone else to replace him when he did not feel well enough to participate.

21. The Crown relies upon evidence which includes DNA, ballistics, CCTV, and other circumstantial evidence to prove that Coskun entered the premises with an unknown male at a time when they were both armed. Recordings of telephone intercept material is also relied upon by the Crown in support of its circumstantial case. Some portions of those recordings are said to be unclear and will require interpretation by the tribunal of fact. The tribunal of fact will also be required to draw inferences from the representations made during those conversations.

22. The Crown relies upon eyewitness evidence and forensic/expert evidence to establish that during the attempted armed robbery Coskun shot John Odisho, killing him.

23. The respondent confirmed that, unlike the previous trial, the Crown case is put on one basis of liability, namely constructive murder on the basis of a joint criminal enterprise.

Relevant legislation and legal principles – Judge alone trials

24. The fundamental importance of trial by jury was discussed in Cheng v The Queen (2000) 203 CLR 248; [2000] HCA 53, a case involving the operation of s 80 of the Constitution. Gaudron J observed at [80]-[81]:

“[80] Trial by jury is so deeply embedded in our judicial process that its importance in protecting the liberty of the individual from oppression and injustice needs no elaboration. However, what is not generally recognised is its importance to the rule of law and, ultimately, the judicial process and the judiciary itself. Respect for the rule of law and, ultimately, the judicial process and the judiciary is enhanced if the determination of criminal guilt is left in the hands of ordinary citizens who are part of the community, rather than in the hands of judges who are perceived to be and, sometimes, are ‘remote from the affairs and concerns of ordinary people’.

[81] The participation of the people of this country in the exercise of judicial power, through their service on juries, provides a basis for community acceptance of verdicts in criminal trials and, more broadly, an understanding of the judicial processes. …

…

The participation of ordinary citizens, as jurors in the judicial process renders it necessary that criminal proceedings be understood by all, including the accused. It is, thus, fundamental to the law's guarantee of a fair trial.”

(Footnotes omitted.)

25. The importance of trial by jury in protecting the liberty of the individual and in promoting public confidence in the administration of justice is of course subject to legislative provisions in New South Wales, which allow for trial by judge alone.

26. The origin of a trial by jury was to provide protection for the accused, in that he or she would be tried by their peers. As observed by McClellan CJ at CL in R v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86 (“Belghar”) at [99], it is for this reason that the subjective views of an accused and his or her belief that a jury trial may not be fair, as reflected in an election to be tried by judge alone, must be a relevant factor (see also R v Simmons; R v Moore (No 4) (2015) 249 A Crim R 120; [2015] NSWSC 259 (“Simmons (No 4)”) at [60] (per Hamill J); Arthurs v State of Western Australia [2007] WASC 182 (“Arthurs”) at [79]) (per Martin CJ). I have had regard to the views of the applicant. I acknowledge that a decision by an accused to elect to be tried by judge alone, is a weighty consideration because it reflects a considered decision to forego the protections that are afforded by trial by one’s peers.

27. Sections 131-132A of the CPA replaced earlier provisions allowing for a judge alone trial on 14 January 2011. As Hamill J observed in Simmons (No 4) at [10]-[11], the repealed provisions were in substantially the same terms as one another, whereas the introduction of the new versions of ss 131-132A involved two significant changes. First, although s 132A maintains the requirement that judge alone applications be made in a timely fashion, applications can be made within a 28 day period before trial, with the leave of the Court. Second, an accused can elect for a judge alone trial without the consent of the Director of Public Prosecutions. This change was “introduced to remove the former veto power held by the prosecution”: R v Abrahams (2013) 230 A Crim R 74; [2013] NSWSC 729 at [10] (per Harrison J).

28. Sections 131-132A of the CPA provide:

131   Trial by jury in criminal proceedings

Criminal proceedings in the Supreme Court or the District Court are to be tried by a jury, except as otherwise provided by this Part.

132 Orders for trial by Judge alone

(1) An accused person or the prosecutor in criminal proceedings in the Supreme Court or District Court may apply to the court for an order that the accused person be tried by a Judge alone (a trial by judge order).

(2) The court must make a trial by judge order if both the accused person and the prosecutor agree to the accused person being tried by a Judge alone.

(3) If the accused person does not agree to being tried by a Judge alone, the court must not make a trial by judge order.

(4) If the prosecutor does not agree to the accused person being tried by a Judge alone, the court may make a trial by judge order if it considers it is in the interests of justice to do so.

(5) Without limiting subsection (4), the court may refuse to make an order if it considers that the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, indecency, obscenity or dangerousness.

(6) The court must not make a trial by judge order unless it is satisfied that the accused person has sought and received advice in relation to the effect of such an order from an Australian legal practitioner.

(7) The court may make a trial by judge order despite any other provision of this section or section 132A if the court is of the opinion that—

(a) there is a substantial risk that acts that may constitute an offence under Division 3 of Part 7 of the Crimes Act 1900 are likely to be committed in respect of any jury or juror, and

(b) the risk of those acts occurring may not reasonably be mitigated by other means.

132A   Applications for trial by judge alone in criminal proceedings

(1) An application for an order under section 132 that an accused person be tried by a Judge alone must be made not less than 28 days before the date fixed for the trial in the Supreme Court or District Court, except with the leave of the court.

(2)  An application must not be made in a joint trial unless—

(a)  all other accused person apply to be tried by a Judge alone, and

(b)  each application is made in respect of all offences with which the accused persons in the trial are charged that are being proceeded with in the trial.

(3) An accused person or a prosecutor who applies for an order under section 132 may, at any time before the date fixed for the accused person’s trial, subsequently apply for a trial by a jury.

(4) Rules of court may be made with respect to applications under section 132 or this section.

29. Pursuant to s 132(4) of the CPA, I am required to consider whether it is in the interests of justice that an order be made for a trial by judge alone. The formulation of s 132(4) confers a wide discretion. The principles relevant to the exercise of that discretion have been considered in a number of decisions of first instance judges in this Court and in the Court of Criminal Appeal: Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197 (“Farrugia”); R v Stanley [2013] NSWCCA 124 (“Stanley”); R v Dawson [2022] NSWSC 552; R v Niguidula [2023] NSWSC 290; R v Obeid [2015] NSWSC 897 (“Obeid”); Simmons (No 4). A comprehensive analysis of the applicable legal principles appears in the judgment of McClellan CJ at CL in Belghar at [89]-[114].

30. In R v White [2024] NSWSC 1369 at [26]-[32], I set out some of the guiding principles that can be distilled from these authorities as follows.

31. Firstly, there is no presumption that a trial should be conducted with a jury: R v Belghar at [96] (per McClellan CJ at CL); R v Abdaly; R v Hosseinishoja (No 3) [2022] NSWSC 1511 at [21(1)] (per Hamill J).

32. Secondly, an accused is not entitled to a trial by judge alone simply because he or she has made an election to be tried by a judge alone. However, the fact that an accused has decided, on legal advice, to relinquish his or her right to a jury trial is a matter to be weighed in determining where the interests of justice lie: Belghar at [99] (per McClellan CJ at CL); Simmons (No 4) at [60] (per Hamill J); R v Qaumi & Ors (No 14) (Judge alone application) (2016) 265 A Crim R 575; [2016] NSWSC 274 at [22] (per Hamill J). It should be noted that a mere unstated apprehension without supporting evidence will not be sufficient: Belghar at [102] (per McClellan CJ at CL); R v Sean Lee King (2013) 228 A Crim R 406; [2013] NSWSC 448 at [40]-[46] (per Bellew J).

33. Thirdly, the interests of an accused are not necessarily the interests of justice. The community receives important collateral benefits from a trial by jury in the involvement of the public in the administration of justice and in keeping the law in touch with community standards: Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4 at [7] (per Gleeson CJ); Stanley at [43] (per Barr AJ, Macfarlan JA and Campbell J agreeing); R v Ahmed [2022] NSWSC 1268 at [67] (per N Adams J).

34. Acknowledging that the interests of justice are not limited to the interests of an accused does not detract from the emphasis that should be placed upon the fundamental importance of an accused receiving a fair trial. Underpinning that principle is the presumption of innocence and the substantial consequences that flow to an individual upon a finding of guilt. Furthermore, the interest of the community is not in ensuring that an accused is convicted but in ensuring that an individual accused of a crime receives a fair trial according to law.

35. Fourthly, s 131 of the CPA does not cast a burden of proof on an accused person. Although an accused carries an evidentiary onus, the Court does not determine where the interests of justice lie by requiring the evidence to rise to a level by which “a presumption” of trial by jury is displaced: Belghar at [96] (per McClellan CJ at CL).

36. Fifthly, Parliament has made it clear that it may be preferable “in the interests of justice” that there should be a trial by jury where an alleged offence involves objective community standards. Section 132(5) sets out a non-exhaustive list of issues requiring the application of objective community standards, including, but not limited to, an issue of reasonableness, negligence, indecency, obscenity or dangerousness. That does not mean that it necessarily follows, in a case involving the application of objective community standards, that there should be a jury trial. However, whether or not the issues involve the application of community standards is a relevant consideration. Each case will depend upon its own facts and circumstances.

29. The present case is not a case that involves the application of objective community standards.

30. Sixthly, efficiencies in the conduct of the trial without a jury is a relevant factor as part of the mix of issues which must be considered: Belghar at [110] (per McClellan CJ at CL); RKF v R [2016] NSWCCA 116 at [39] (per Bathurst CJ, Hall and R A Hulme JJ agreeing).

31. Seventhly, it is in the interests of justice to conduct a trial in the most efficient and flexible way possible, so as to minimise the prospect that any trial would not be able to be completed: R v Hadler [2018] NSWSC 1151 at [76] (per Wilson J).

Submissions

Applicant’s submissions

40. The applicant relies upon four substantive grounds in making the application for a judge alone trial.

41. First, the applicant relies upon the efficiencies to be achieved where a judge alone trial would proceed, in large part, by tendering the transcript of many of the witnesses who gave evidence in the previous trial and by agreed facts. The applicant has accepted that efficiencies in the trial is the “primary component” of the application, although not the sole ground.

42. The applicant submitted that twenty-three witnesses would not have to be called to give evidence. The applicant would require four witnesses to give evidence in the event that the trial proceeded as a judge alone trial. An additional three witnesses may need to give evidence, although it is uncertain as to whether one or all of these three witnesses will be called. The reduction in the number of witnesses who would have to give evidence and be cross-examined will shorten the length of the trial and avoid the expense, time, and inconvenience of recalling these witnesses.

43. Second, the applicant submitted that there are two categories of evidence that are proposed to be led which raise questions of unfair prejudice. The first category of evidence is tendency evidence. In a judge alone trial, it would not be necessary to make an application to revisit the ruling made by the trial judge, admitting the tendency evidence. Nor would it be necessary to pursue any objection to the tendency evidence because it is well recognised that “judges can appropriately discard improper reasoning processes that might be available from evidence that might otherwise be unfairly prejudicial”.

44. In the event that the trial proceeds by jury, pre-trial arguments will be required regarding the admissibility of the evidence which will add to the duration of the trial. The applicant also raised the risk that a jury may substitute the tendency evidence for the evidence in support of the present allegation, and thereby impermissibly reason to a finding of guilty.

45. The second category of evidence which raises “problematic unfair prejudice arguments” relates to the evidence given by the applicant during his sentence proceedings. It is the only direct evidence of what occurred immediately prior to the robbery and is relevant to whether or not there was a joint criminal enterprise and whether the applicant withdrew from any such joint enterprise.

46. Having read the transcript of the sentence proceedings, the evidence of the applicant suggests that there was no agreement. This was a matter which the sentencing judge commented on during the proceedings. The Crown does not intend to adduce that evidence in its case. However, in the event that the applicant gives evidence in the trial, the Crown may cross-examine him on the evidence he gave during his sentence proceedings.

47. The applicant’s position in relation to this ground developed during the course of oral submissions. It is accepted that in the event that the applicant gives evidence and is cross-examined on the evidence he gave during the sentence proceedings, it is possible to cross-examine him in such a way so as to avoid disclosing the nature of the proceedings.

48. However, the applicant contends that the unfair prejudice lies in the fact that any explanation for his meetings with Coskun leading up to the killing, will entail disclosing his involvement in separate and unrelated criminality. The applicant submitted that no direction or explanation could properly ameliorate the prejudicial impact of this evidence and the surrounding context of it. A judge, on the other hand, could properly disregard the risk of improper reasoning.

49. Third, the applicant submitted that there is some complexity in the directions that will be required although the Crown is now proceeding on one basis of liability only. There is some complexity in the directions relating to joint criminal enterprise constructive murder where the applicant was not present at the scene at the time of the killing.

50. Fourth, the applicant reads the affidavit of Ms Fahmy, sworn on 5 June 2025, together with the documents marked “Annexure A”. The documents contain the results of Internet searches using the Google search engine for words relating to this case including, but not limited to, the name of the applicant and his conviction appeal. The applicant submitted that there is a risk that the jury will become aware not only that this is a retrial but that the applicant has been found guilty by another jury and that the matter proceeded on appeal all the way to the High Court.

Respondent’s submissions

51. The respondent does not accept that a judge alone trial will be more efficient. Contrary to the applicant’s submissions, the respondent argued that the extent of time savings and efficiencies regarding some of the witnesses, in the event that the matter proceeds as a judge alone trial, is not readily apparent. Furthermore, it does not follow that because the applicant would not require the 23 witnesses to give viva voce evidence in a judge alone trial, that the Crown will agree to present its evidence in the same manner. The Crown may want to call some of those witnesses instead of proceeding by way of tendering the transcript of evidence they gave in the last trial or by way of agreed facts.

52. The respondent submitted that the case involves drawing multiple inferences from the listening device and telephone intercept material. The task will require the tribunal of fact to listen carefully to the tone in which things were said, the guarded nature of some of the admissions, and the use of particular expressions. Furthermore, it is submitted that the credibility and reliability of a key witness, Larissa Mitchell-Wisniewski, is better assessed by a jury.

53. A similar submission was made in relation to the assessment of the credibility of other witnesses. The respondent submitted that this kind of assessment is one where it may be considered that a jury, with its collective wisdom, is better placed than a judge.

54. In respect of prejudicial evidence, the respondent does not intend to adduce the evidence of the applicant on sentence in the Crown case, although the respondent accepts that in the event the applicant gives evidence in his trial, he may be cross-examined using the evidence he gave in his sentence proceedings. The respondent submitted that in the event it is permitted to do so, that evidence can be referred to in a “neutral way as evidence given in earlier proceedings and could not be referred to as evidence on sentence”.

55. In respect of the tendency evidence, the respondent emphasised that there has already been a ruling in relation to the admissibility of this evidence. Any prejudice flowing from that evidence can be cured by judicial direction.

56. The respondent submitted that in the present case it cannot be said that there was significant pre-trial publicity. The types of publications that have been set out in the Google searches, relied upon by the applicant, are predominately from Government departments or legal websites where it can reasonably be expected that these will be taken down or restricted before the trial. Furthermore, safeguards can be put in place to address the potential risk. These safeguards include, at the time of empanelment, asking prospective jurors if they have any knowledge about the case and to recuse themselves if they do. The trial judge will give the usual directions prohibiting jurors from making their own enquiries.

57. Lastly, the respondent submitted that there is no risk that the jury will disregard the directions of law on what they need to be satisfied of and there is no scope for confusion in the present trial as the respondent now relies upon one basis of liability for murder, namely joint criminal enterprise.

Determination

Efficiency and Finality

58. It is necessary to observe that none of the grounds relied upon by the applicant, taken alone, persuade me that it is in the interests of justice to make an order for a judge alone trial. Instead, I must determine the application having regard to all relevant factors, recognising that some are weightier than others.

59. Having done so, I am satisfied that it is in the interests of justice to make an order for a judge alone trial. What follows, are my reasons for making that determination.

60. The primary (although not sole) ground relied upon by the applicant is the asserted efficiencies if the trial were to proceed by way of judge alone. The efficiencies available from a judge alone trial, the advantage available to an accused person and the community, and the perceived desirability of reasons for the verdict from the trial judge, is a relevant consideration. It is part of the “mix of issues” which must be considered.

61. In the same vein, the need for finality of the proceedings is a relevant factor although not a matter which would justify, of itself, a trial by judge alone: R v XY [2024] NSWSC 1472 at [45] (per Davies J).

62. Efficiency and finality are separate but related concepts in this case. Given the protracted, and somewhat unusual, history of this matter, it is in the interests of everyone, including the accused, the deceased’s family and the community, that these proceedings are conducted efficiently and proceed in such a way as to ensure finality of the proceedings.

63. The estimate of the trial, were it to proceed as a jury trial, is between three to four weeks. In the event that the trial proceeds as a judge alone trial, there will be savings in time and expense. A jury trial necessarily increases the estimate of the proceedings because it involves the exigencies that arise where 12 people comprise the tribunal of fact. There are risks in relation to the potentiality for illness, family commitments, and (in some cases) unforeseen work commitments, which may cause a delay in the proceedings.

64. In this case, twenty-three of the Crown’s witnesses are not controversial. In the last trial, the evidence of five of those witnesses was read onto the record. Six of the witnesses were not cross-examined. Twelve witnesses were cross-examined. The evidence of the twelve witnesses who were cross-examined spans over a total of 105 pages. I am unable to determine with any certainty the time it took to adduce the evidence of these witnesses. However, it can be assumed that, in the event of a jury trial, it will take some days to recall and adduce evidence from these witnesses.

65. The respondent rightly points out that just because the applicant may not require the witnesses to be re-called in a judge alone trial, does not mean that the Crown would not recall at least some of them. It is a matter for the Crown as to how it runs its case. However, the Crown is a model litigant. I can therefore safely proceed on the basis that the Crown will not unnecessarily call witnesses where their evidence can be placed before the tribunal of fact by way of transcript or agreed facts.

66. Furthermore, in determining the criteria of efficiency, brevity, and costs, I have had regard to the interests of justice in this particular case, considered in the context of its somewhat unique circumstances. This is not simply a case where the accused has faced one trial, a successful appeal, and now faces a retrial.

67. The accused and the community have experienced the protracted history of one aborted trial, a completed trial, a successful appeal to the CCA, a successful grant of special leave in the High Court, a hearing in the High Court resulting in the revocation of special leave, and now, a further trial. In the circumstances of this case, there is a pressing interest in the finality of the proceedings.

Assessment of credibility

68. I do not accept the respondent’s submission that a jury, with its collective wisdom, is better placed than a judge to determine issues of credibility in this case.

69. The respondent relies upon AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8, where Heydon J referred to the advantages to trial by jury set out by Lord Devlin in Trial by Jury (rev ed, 1966 at 164). The second of those advantages, according to Lord Devlin, was that juries are superior to judges in assessing credibility (at [94]):

“…[T]he jury is the best instrument for deciding upon the credibility or reliability of a witness and so for determining the primary facts. Whether a person is telling the truth, when it has to be judged, as so often it has, simply from the demeanour of the witness and his manner of telling it, is a matter about which it is easy for a single mind to be fallible. The impression that a witness makes depends upon reception as well as transmission and may be affected by the idiosyncrasies of the receiving mind; the impression made upon a mind of twelve is more reliable. Moreover, the judge, who naturally by his training regards so much as simple that to the ordinary man may be difficult, may fail to make enough allowance for the behaviour of the stupid. The jury hear the witness as one who is as ignorant as they are of lawyers' ways of thought; that is the great advantage to a man of judgment by his peers.”

70. The commentary in Trial by Jury is expressed in somewhat gendered language, perhaps reflective of the times in which it was written. The composition of the judiciary has evolved. Judges in 2025 have diverse experiences and backgrounds. Furthermore, there has been an increase in judge alone trials. These changes call for a more nuanced approach to the question of whether juries (as opposed to judges) are better placed to make assessments of credibility and reliability.

71. Although Lord Devlin was of the opinion that the jury was the most appropriate tribunal to determine issues of credibility, as observed by Hamill J in Simmons (No 4) at [75], it is difficult to discern a clear consensus in Australian authorities which support the proposition that where credibility issues are central to a trial, that is a factor that militates strongly in favour of a jury trial.

72. His Honour summarised several cases dealing with this issue concluding at [82]:

“…[F]or the most part, the fact that a trial involves issues of credibility is a neutral matter when it comes to determining whether it is in the interests of justice to make an order for trial by judge alone… [E]ach mode of trial has its advantages and disadvantages, strengths and weaknesses. While a jury has the advantage of being able to discuss the issues and the requirement for unanimity provides strength to its decision, a judge has the training and experience of making difficult decisions on question[s] of credibility, putting aside matters of emotion, on an almost daily basis.”

73. In Redman v R [2015] NSWCCA 110, the Court allowed an appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW), quashing an order refusing an application for trial by judge alone. Adams J observed (at [14]), “[t]he supposition that a jury is a better arbiter of relative credibility than a judge is reflective of assumptions rather than experience and lacks sufficient substance to be placed in the scales”. In upholding the appeal, Adams J (Hoeben CJ at CL and R A Hulme J agreeing) held that there was a “significant error” by the trial judge because the interests of justice “are not determined by suppositions about the relative abilities of judge or jury to determine the facts, though in some cases – such as those enumerated in s132(5) – a jury may be the more appropriate tribunal, other things being equal” (at [17]).

74. The respondent placed some reliance on The King v ZT (2025) 99 ALJR 676; [2025] HCA 9 (“ZT”), at [10] where, in the context of explaining that an appellate court is required to give "full allowance" to the advantages of the jury in seeing and hearing the evidence when assessing whether those advantages are capable of resolving any doubt the appellate court holds about the appellant's guilt, Gageler CJ, Gleeson, Jagot and Beech-Jones JJ said:

“…[T]he advantages may extend to an assessment of matters such as: the tone and manner in which the witness or participants spoke or conducted themselves; their maturity; their emotional state and intelligence; and how they interact with others, including family members, associates, strangers or officials (eg, police officers). The jury can consider those matters possessing a breadth of understanding of how different people speak and behave in such circumstances that a judge may not have.”

75. These remarks are not apposite in the present case. The High Court was not considering the comparative capacity (between juries and judges) to assess the credibility of witnesses in a trial such as the present. The High Court was instead considering a very different issue relating to the advantages of a jury in the context of a ground of appeal asserting unreasonable verdict. ZT is of little assistance on the issue I must decide on this application.

76. There are authorities in support of both sides of the argument. However, the prevailing view expressed in more modern cases, is that, generally speaking, the fact that a trial involves the assessment of credibility is a neutral matter, in determining whether it is in the interests of justice to make an order for trial by judge alone.

77. The Crown case relies, in large part, on circumstantial evidence. The important issues to be determined relate to whether there was a joint criminal enterprise to commit an armed robbery, during which the deceased was shot and killed; and, whether the applicant was a party to and participated in that joint criminal enterprise. There is, potentially, an additional issue. If the agreement is established, an issue may arise as to whether the applicant withdrew from the enterprise. None of these issues involve the application of community standards.

78. The electronic evidence includes conversations captured by surveillance. The tribunal of fact will be required to listen carefully to the telephone intercept material and consider the reasonable inferences that can be drawn from the representations therein.

79. The tribunal of fact will also have to assess the credibility and reliability of one or more witnesses, called either in the Crown case or potentially in the defence case. Importantly, however, this trial does not involve a consideration of concepts such as reasonableness, negligence, indecency, obscenity or dangerousness.

80. In the circumstances of this case, a judge is equally capable of assessing the credibility and reliability of the witnesses. Judges are required to make findings of fact every hour of the day and every day of the sitting week.

Other relevant factors

81. The result of the Internet searches reveals that in the main, the applicant’s proceedings, including the appellate proceedings in the CCA and the High Court, appear on Government department and legal websites. I accept that in relation to that material, arrangements can be made for the publications to be removed from the relevant websites.

82. This is not a case where there has been significant pre-trial publicity in relation to the history of the proceedings in the general media or on private social media platforms.

83. I am not persuaded that there is unfair prejudice resulting from the tendency evidence that would, alone, warrant a judge alone trial. The asserted tendency is to plan and participate in the robbery of drugs from others being held in safe houses for the purpose of profit. R A Hulme J, found that the evidence, if accepted by the jury, is capable of having significant probative value. The fact that the applicant engaged in a number of conversations about ways of carrying out “drug rips”, was found to significantly support the contention that he had the tendency alleged by the Crown: R v Batak (No 2) [2022] NSWSC 425 at [60].

81. R A Hulme J addressed the possible prejudice to the applicant, saying:

“[64] The possible prejudice to the accused is apparent. The main risk is that the jury may leap from a conclusion drawn from the tendency evidence to a conclusion of guilt without appropriate consideration of the other evidence specifically bearing upon the latter. However, I am confident that the tendency evidence is sufficiently discrete in both time and subject matter that directions as to permissible and impermissible use may be clearly formulated and comprehended.

[65] There is no real cause for concern about the jury being required to perform “mental gymnastics” as there will be no occasion to ask the jury to ignore the evidence. It is also not apparent how appropriate judicial directions will result in the jury paying greater attention to the material and its relevance to the accused.”

85. In short, therefore, the prejudice arising from the tendency evidence was said to be “apparent”, although it could be cured by way of judicial directions.

86. There is however some unfair prejudice arising from the potential cross-examination of the applicant in respect of the evidence he gave during the sentence proceedings. The applicant’s evidence was that he met with Coskun at a park in Merrylands where he arranged to put Coskun in touch with someone who would buy stolen car parts.

87. Although this criminality may be considered less serious than the criminality that forms the tendency evidence, that does not mean that it is not a relevant factor, albeit not a matter that would, alone, warrant a judge alone trial. There is a risk of unfair prejudice arising from the cumulative impact of the jury hearing that the applicant was not only engaged in the criminality constituting the tendency evidence but also engaged in other types of unrelated criminality, albeit of a less serious nature.

88. I have also had regard to the asserted complexity involved in the directions that will have to be given to the tribunal of fact. Although the basis of liability is joint criminal enterprise only, there is some complexity involved in the directions pertaining to joint criminal enterprise in a constructive murder, in circumstances where the applicant was not present at the time of the shooting.

89. Directions will also be required in relation to the tendency evidence to ensure that the evidence of the applicant engaging in discussions about other “drug rips” is not substituted for the evidence relied upon to make out the elements of murder. I acknowledge that the complexity inherent in directions of this type is not a matter that, alone, supports the making of an order for a judge alone trial. Juries are often directed in respect of joint criminal enterprise and tendency evidence.

90. However, the question in this case is whether the combination of all the factors supports a determination that the order be made. I do not answer that question by considering one factor in isolation. Instead, the proper approach is to consider, in combination, the matters relied upon to determine whether it is in the interests of justice that the trial proceed as a judge alone trial.

91. Having considered these factors and having regard to the fact that the issues in the trial do not involve the application of community standards, I am satisfied that the applicant’s trial should proceed as a judge alone trial.

92. Accordingly, I make the following orders:

1. Pursuant to s 132 of the Criminal Procedure Act 1986 (NSW), I order that the trial of Mr Cem Batak proceed by way of judge alone.

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Decision last updated: 26 June 2025