R v Coskun - [2022] NSWSC 149

Supreme Court

New South Wales

Medium Neutral Citation: R v Coskun [2022] NSWSC 149
Hearing dates: 15 February 2022
Decision date: 22 February 2022
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Tendency evidence is admissible.

Catchwords:
EVIDENCE — tendency evidence — significant probative value — probative value outweighs danger of unfair prejudice

Legislation Cited:
Crimes Act 1900 (NSW), ss 18(1)(a), 97(2), 111(3)
Evidence Act 1995 (NSW), ss 97(1), 101(2), s 137

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
Taylor v R [2020] NSWCCA 355
The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40

Category: Procedural rulings
Parties: Regina
Cengiz Coskun
Representation:
Counsel:
Ms S Traynor (Crown)
Mr P Coady (Accused)
Solicitors:
Solicitor for Public Prosecutions
Bannisters Lawyers

File Number(s): 2019/105006

Judgment

HIS HONOUR: Cengiz Coskun (the accused) has pleaded not guilty to the murder of John Odisho at Five Dock on 2 April 2019 and attempting to rob Sargon Odisho of drugs and money whilst armed with a dangerous weapon (a firearm) at the same time and place.
The Crown case is that the accused was one of two men, both of whom were armed with handguns, who entered the home of John and Sargon Odisho at East Street, Five Dock (the Odisho home) at about 3.40am on 2 April 2019. A violent incident occurred during which John Odisho was shot and killed.
The Crown case on the murder charge is based upon a threefold contention of liability:^[1]

Constructive murder, namely the accused was a party to an agreement with a person unknown to commit a robbery whilst armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act 1900 (NSW), and the act causing death was done in an attempt to commit that crime: Crimes Act, s 18(1)(a).
Extended joint criminal enterprise, namely the accused was a party to an agreement to commit a specially aggravated enter with intent to steal, contrary to s 111(3) of the Crimes Act, in which the accused and/or the other intruder were armed, and the accused contemplated the possibility that the firearm may be discharged and grievous bodily harm or death occur as a result.^[2]
Joint criminal enterprise to kill or inflict grievous bodily harm at the time the fatal shot was fired.^[3]
1. Crown Case Statement [59]; Annexure A to Notice of Prosecution Reply pursuant to Criminal Procedure Act 1986 (NSW), s 144.
2. This is the formulation stated by the Crown and whether the latter part is in conformity with McAuliffe v The Queen, is not of present concern.
3. The third form of liability was clarified in oral submissions, transcript 15 February 2022, pp 9-10.

The accused does not dispute that he was one of the intruders. While he has not disclosed…

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 Coskun

Details

AGLC: R v Coskun [2022] NSWSC 149
Case: [2022] NSWSC 149
Decision Date: 22 February 2022

CaseChat Overview and Summary

The case of R v Coskun was heard in the Supreme Court of Victoria. Coskun was charged with murder and related offences. The nature of the dispute involved the admissibility of certain evidence presented by the prosecution. The court was required to determine whether this evidence, which had significant probative value, should be excluded because it carried a risk of unfair prejudice to the accused.

The legal issues centred around the balance between the probative value of the evidence and the potential for unfair prejudice to the accused. The court had to consider whether the probative value of the evidence outweighed any prejudicial effect it might have on the jury's decision-making process. This involved a detailed analysis of the evidence in question and its relevance to the case.

The court concluded that the probative value of the evidence was substantial enough to justify its admission. The potential for unfair prejudice, while present, did not outweigh the evidence's value in establishing the facts of the case. Consequently, the evidence was deemed admissible. The court's decision was based on a careful assessment of the principles governing the admissibility of tendency evidence, ensuring that the probative value outweighed the prejudicial impact.

Orders