The King v Batak

Case [2025] HCA 18

HIGH COURT OF AUSTRALIA

GAGELER CJ,
GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJ

THE KING  APPELLANT

AND

CEM BATAK  RESPONDENT

The King v Batak

[2025] HCA 18

Date of Hearing: 8 April 2025

Date of Order: 8 April 2025

Date of Publication of Reasons: 7 May 2025

S148/2024

ORDER

1.Leave to file the proposed amended notice of appeal is refused.

2.Special leave to appeal is revoked.

On appeal from the Supreme Court of New South Wales

Representation

S C Dowling SC with A L Bonnor and M L Millward for the appellant (instructed by Solicitor for Public Prosecutions (NSW))

G A Bashir SC with C Parkin and J R Murphy for the respondent (instructed by Fahmy Lawyers)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

The King v Batak

Criminal practice – Particular offences – Accessory before the fact to constructive murder – Where foundational offence was attempted robbery armed with dangerous weapon – Whether accessory before the fact to constructive murder is an offence known to law.

High Court – Special leave to appeal – Where New South Wales Court of Criminal Appeal ("CCA") ordered new trial – Where Crown sought orders setting aside orders of CCA and dismissing respondent's appeal against conviction – Where Crown argued accessory before the fact to constructive murder is an offence known to law – Where Crown argued different formulation of mental element in CCA and High Court – Where Crown conceded acceptance of its argument required CCA's order for new trial to be affirmed – Whether special leave to appeal should be revoked – Whether interests of justice warranted revocation of special leave to appeal – Whether Crown in substance seeking guidance as to scope of retrial – Whether case ceased to be appropriate vehicle.

Words and phrases – "accessorial liability", "accessory before the fact", "accessory before the fact to constructive murder", "appeal against reasons", "appropriate vehicle", "armed robbery", "constructive murder", "derivative liability", "extended joint criminal enterprise", "foundational offence", "ground of appeal", "guidance", "gun", "high vis shirt", "interests of justice", "joint criminal enterprise", "jury", "jury direction", "knowledge of the act causing death", "mental element", "new trial", "no real dispute", "offence known to law", "primary liability", "revocation of special leave to appeal", "special leave to appeal", "state of mind", "trial judge's direction", "variation of orders".

Crimes Act 1900 (NSW), ss 18, 346.

  1. GAGELER CJ, GORDON, STEWARD, GLEESON AND BEECH-JONES JJ.   Pursuant to a prior grant of special leave to appeal, the Crown appealed to this Court from part of the judgment of the New South Wales Court of Criminal Appeal in Batak v The King.[1] The sole ground of the appeal was that the Court of Criminal Appeal erred in concluding that it was an error of law to permit constructive murder to be left to the jury on the basis of accessorial liability.

  2. On 8 April 2025, this Court ordered by a majority…

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AGLC
The King v Batak [2025] HCA 18
Case
[2025] HCA 18
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an application for special leave to appeal in a criminal matter involving the respondent, Mr Batak. The Crown sought to set aside an order for a new trial made by the New South Wales Court of Criminal Appeal and dismiss Mr Batak's appeal against his conviction. The central dispute concerned whether an accessory before the fact to constructive murder, where the foundational offence was attempted robbery armed with a dangerous weapon, was an offence known to the law.

The legal issues before the High Court included whether special leave to appeal should be revoked, whether the interests of justice warranted such revocation, and whether the case had ceased to be an appropriate vehicle for the important question of law it raised. The Crown's argument that accessory before the fact to constructive murder was an offence known to law, and its proposed reformulation of the mental element for this offence, were key to the Court's consideration of these issues.

A majority of the High Court revoked special leave to appeal and refused leave to file an amended notice of appeal. This decision was based on the conclusion that the manner in which the appeal would be conducted meant the case was no longer an appropriate vehicle for the question of law it raised. The Crown's concession that if its submissions were accepted, the order for a new trial should be affirmed, and its attempt to change its position on the mental state for accessory to constructive murder, contributed to this conclusion. One judge dissented, considering special leave should not have been revoked and that the Court had jurisdiction to make the orders sought by the Crown.

Orders

Orders of the court

1. Leave to file the proposed amended notice of appeal is refused.

2. Special leave to appeal is revoked.

Background

Background to the litigation

On 8 April 2025, at the hearing of the appeal and after hearing submissions on this preliminary issue, the Court adjourned to consider the course that it would take. That afternoon, the Court announced that, by majority, special leave to appeal was revoked and leave to file the proposed amended notice of appeal was refused. A majority of this Court concluded that the manner in which the appeal would be conducted meant that this case had ceased to be an appropriate vehicle for the question of law it raised. I did not join in the order revoking special leave. I would have allowed the substantive appeal to proceed. For the reasons below, this Court had jurisdiction to make the orders sought by the Crown. And although the appeal presented a different complexion, and was a less suitable vehicle for special leave, than at the time of grant, I consider that special leave should not have been revoked.Background At 3.45am on 2 April 2019, two men broke into an apartment in order to steal drugs and money. Each of the intruders had a gun. A confrontation occurred with one of the inhabitants of the apartment, who was also armed with a gun. Another inhabitant was shot and killed by one of the intruders. Mr Batak was not present at the robbery. However, the Crown alleged that earlier on the night of the robbery, Mr Batak had supplied one of the intruders with a high visibility shirt and a loaded gun to use in the robbery. Mr Batak was charged on indictment with two offences. Count 1 of the indictment was the offence of murder contrary to s 18(1)(a) of the Crimes Act 1900 (NSW), relying also on the "accessories before the fact" provision in s 346 of the Crimes Act. Count 2 of the indictment against him was attempted robbery whilst armed with a dangerous weapon contrary to s 97(2) of the Crimes Act, again relying also on s 346 of the Crimes Act. Mr Batak was convicted by a judge and jury of the two counts in the indictment against him. The Crown had initially intended to rely upon three pathways to a conviction for murder. Two pathways were forms of derivative liability (extended joint criminal enterprise and being an accessory before the fact) and the third pathway was primary liability for murder by participation in a joint criminal enterprise. The Crown ultimately chose to pursue only one pathway: Mr Batak was said to be an accessory before the fact, within the meaning of s 346 of the Crimes Act, to the offence of constructive murder in s 18(1)(a) of the Crimes Act, where the foundational offence was the attempted robbery offence in count 2 of the indictment. Mr Batak appealed to the Court of Criminal Appeal on grounds that included: (1) "It was an error of law to permit constructive murder to be left to the jury on the basis of accessorial liability"; and (2)(a) "In the alternative to (1), the trial judge misdirected the jury as to ... the elements of accessory before the fact to constructive murder". Part of ground 2(a) intersected with ground 1 because it challenged the nature of an aspect of the mental element required for a putative offence of being an accessory before the fact to constructive murder. The trial judge had directed the jury that a necessary element of that offence ("the fifth element") was: "The discharge of a gun during the attempted armed robbery with a dangerous weapon was a possibility which the accused was aware of when he provided the assistance ... ([of] providing the shirt and/or gun)."

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GAGELER CJ, GORDON, STEWARD, GLEESON AND BEECH-JONES JJ EDELMAN J JAGOT J
Lastly, the various matters relied on by the Court of Criminal Appeal to order a retrial are irrelevant to the present question of whether special leave to appeal should be revoked. Those matters were directed to whether or not the Crown should be held to its position at trial of eschewing reliance on joint criminal enterprise. In this Court, the Crown sought to change its position, by a substantial reformulation of the mental state for an accessory to constructive murder, when the previous formulation of the Crown was an aspect of the reasoning of the Court of Criminal Appeal towards its conclusion that accessorial liability for constructive murder was excluded. Conclusion For these reasons, it was apparent that the appeal in the present case had ceased to be an appropriate vehicle for the consideration of the important question of law raised by the sole ground of appeal on which special leave to appeal was granted. The appropriate course was for the grant of special leave to be revoked. The preliminary issue: should special leave be revoked? On 21 March 2025, prior to the hearing of a listed appeal in this matter, this Court sent a letter to the parties. The attention of the parties was directed to the concession by the Crown in its reply that, as Mr Batak submitted, if the Court accepted the Crown's submissions on the appeal, "the order for a new trial should be affirmed". The Crown was asked to file supplementary submissions and any proposed amended notice of appeal. Subsequently, on 3 April 2025, a directions hearing was held before Gageler CJ at which his Honour raised with the Crown the preliminary question of whether the proposed orders it sought were, in effect, seeking to appeal from the reasons of the Court of Criminal Appeal of New South Wales rather than from the orders of that Court. The Crown was told that a preliminary issue at the hearing of the appeal would be whether special leave should be revoked. On 8 April 2025, at the hearing of the appeal and after hearing submissions on this preliminary issue, the Court adjourned to consider the course that it would take. That afternoon, the Court announced that, by majority, special leave to appeal was revoked and leave to file the proposed amended notice of appeal was refused. A majority of this Court concluded that the manner in which the appeal would be conducted meant that this case had ceased to be an appropriate vehicle for the question of law it raised. I did not join in the order revoking special leave. I would have allowed the substantive appeal to proceed. For the reasons below, this Court had jurisdiction to make the orders sought by the Crown. And although the appeal presented a different complexion, and was a less suitable vehicle for special leave, than at the time of grant, I consider that special leave should not have been revoked.Background At 3.45am on 2 April 2019, two men broke into an apartment in order to steal drugs and money. Each of the intruders had a gun. A confrontation occurred with one of the inhabitants of the apartment, who was also armed with a gun. Another inhabitant was shot and killed by one of the intruders.

Ratio Decidendi

Legal Principle Established

Established by: GAGELER CJ, GORDON, STEWARD, GLEESON AND BEECH-JONES JJ, EDELMAN J, JAGOT J

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