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 1. 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. 2. 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. 3. 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. The accused does not dispute that he was one of the intruders. While he has not disclosed what his purpose was in attending the home, the Crown will bear the burden of establishing that it was to commit a robbery whilst armed with a firearm. 2. This judgment is concerned with the Crown's proposal to adduce tendency evidence. The tendency notice it has served upon the defence includes: [4] "The tendency sought to be proved is his tendency to have a particular state of mind and to act in a particular way, namely: to deliberately wear high visibility shirts with the intention of committing a robbery and when committing a robbery for the purpose of assisting him carry out that offence." 1. The accused objects to the evidence being admitted.