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R v Batak (No 6)

R v Batak (No 6)

Case [2025] NSWSC 658 26 June 2025

Murder

Joint Criminal Enterprise

Judicial Review

Interests of Justice

Criminal Law

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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

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…

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 6)

Details

AGLC: R v Batak (No 6) [2025] NSWSC 658
Case: [2025] NSWSC 658
Decision Date: 26 June 2025

CaseChat Overview and Summary

In the case of R v Batak (No 6), the respondent, Batak, was facing a retrial for the offence of murder. The case was being heard in a higher court, which had jurisdiction to consider an application for a judge alone trial. The matter had a lengthy and unusual history, with the Crown's case relying on the theory of constructive murder through a joint criminal enterprise. The central legal issue before the court was whether it was in the interests of justice to grant the application for a judge alone trial, considering the complexity of the issues and the potential benefits of efficiencies and finality in the trial process.

The court was required to weigh the advantages of a judge alone trial against the traditional role of a jury in assessing credibility and determining the facts of the case. The complexity of the issues, which involved multiple defendants and a joint criminal enterprise, was a significant factor in the court's decision-making process. The court acknowledged the potential benefits of a judge alone trial in terms of efficiency and finality, particularly given the protracted history of the case. Ultimately, the court determined that it was in the interests of justice to grant the application for a judge alone trial, considering the unique circumstances and the potential for a more streamlined trial process.

The court's reasoning was grounded in the principle of ensuring a fair and efficient trial, taking into account the particular facts and complexities of this case. The court found that the advantages of a judge alone trial, including the potential for a more efficient and final resolution, outweighed the traditional role of a jury in assessing credibility. As a result, the application for a judge alone trial was granted, and the matter proceeded to trial before a judge without a jury.

The final orders of the court included the grant of the application for a judge alone trial, which meant that the retrial of the respondent for the offence of murder would be conducted before a judge without a jury. This decision was based on the court's assessment of the interests of justice, considering the unique circumstances and the potential benefits of a judge alone trial in terms of efficiency and finality. The case proceeded to trial before a judge, and the outcome of the trial will determine the respondent's fate in relation to the charge of murder.

Orders