The King v Batak

[2025] HCATrans 24

[2025] HCATrans 024

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S148 of 2024

B e t w e e n -

THE KING

Appellant

and

CEM BATAK

Respondent

GAGELER CJ

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON THURSDAY, 3 APRIL 2025, AT 9.27 AM

Copyright in the High Court of Australia

HIS HONOUR:   In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MS S.C. DOWLING, SC appears with MS A.L. BONNOR and MS M.L. MILLWARD for the appellant.  (instructed by Solicitor for Public Prosecutions (NSW))

MS G.A. BASHIR, SC appears with MR C. PARKIN for the respondent.  (instructed by Fahmy Lawyers)

HIS HONOUR:   Good morning.  Ms Dowling, can I just try to work out where we are up to.  I understand that you now resile, from the second sentence of paragraph 2 of your reply, that you propose to seek leave at the hearing to file an amended notice of appeal; that by that proposed amended notice of appeal, you will no longer seek an order from this Court that the appeal against conviction be dismissed; that what you really seek to do before this Court is to rerun ground 1 of your appeal to the Court of Criminal Appeal.  If you are successful on that, then you seek a remitter of ground 2(a) to the Court of Criminal Appeal.  Is that correct?

MS DOWLING:   Yes, your Honour, we do challenge order 3 made by the CCA, set out in our proposed orders in the amended notice of appeal.  The order that we would seek is:

dismiss the respondent’s appeal to the Court of Criminal Appeal . . . on Grounds 1, 2(b), 3 and 4 –

And then remit, for further determination, the respondent’s ground of appeal 2(a) in the CCA, because as your Honour will see from our supplementary submissions, order 3 of the CCA upheld only ground 1 of the respondent’s appeal to that court, which was the ground that asserted that:

accessory before the fact to constructive murder –

is not an offence known to law.

HIS HONOUR:   The actual order does not refer to ground 1, but the reasons indicate, of course, that it was ground 1 that led to that order.  What order would you be seeking on remitter from the Court of Criminal Appeal?

MS DOWLING:   Depending on the way in which the issues fall, following the judgment of this Court, we would be seeking to have the appeal dismissed.

HIS HONOUR:   Thank you.  Ms Bashir, do you have an attitude to this development?

MS BASHIR:   Your Honour, it has always been our submission that, implicit in the argument on ground 1 below, but before this Court, that implicit in that is a concession that there should be a new trial in this way, your Honour:  that it is implicit in the way that the appellant’s argument on ground 1 is being run that there should have been directions on knowledge.

In terms of what has just fallen from my friend, it appears that the intention is to seek remitter in order that then, on the running of the matter or rerunning of the matter on ground 2 – should that occur in the Court of Criminal Appeal – there could be a revival or an argument as to the proviso.  It is our submission that this Court would be well placed to determine whether there should be an order for a new trial or not, because the content of the directions will be at the heart of any consideration of the appellant’s argument as to ground 1.  That is, that there is some way of coherently directing as to accessory before the fact for felony murder.

HIS HONOUR:   Thank you.  Ms Dowling, this is becoming problematic.  The Court, of course, only hear appeals from judgments or orders.  It does not hear appeals from reasons.  The reformulation of the orders you seek in the amended notice of appeal is, on one view, directed to the reasoning of the Court of Appeal and not to the orders it made.  You should be prepared at the scheduled hearing of the appeal next week to argue, as a preliminary question, whether special leave should be revoked in this matter.

MS DOWLING:   May it please the Court.

HIS HONOUR:   Thank you.  Then, I will do nothing other than adjourn until next week, for the hearing.  Thank you.

AT 9.33 AM THE MATTER WAS ADJOURNED,
UNTIL TUESDAY, 8 APRIL 2025