Supreme Court New South Wales Medium Neutral Citation: R v Coskun (No 3) [2022] NSWSC 695 Hearing dates: 14 March 2022 Decision date: 14 March 2022 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: Leave is granted to the Crown pursuant to s 38 of the Evidence Act to question witness Legislation Cited: Evidence Act 1995 (NSW), ss 38, 192 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: The accused is charged in relation to an alleged home invasion murder that occurred in an apartment in Five Dock in the early hours of 2 April 2019. 2. The apartment was on the first floor of the building and was occupied at the time by Mr John Odisho and Mr Sargon Odisho. John Odisho was in the first bedroom with his girlfriend while Sargon Odisho was alone in the second bedroom. The intruders climbed up to the balcony and entered via the unlocked sliding door to the living area. It is alleged that John Odisho was taken from the first bedroom to the second bedroom where a shooting incident occurred. John Odisho was mortally wounded. Sargon Odisho received gunshot wounds to his left arm. The accused received a gunshot wound to his left side. The intruders fled. 3. The motive for the invasion is alleged to be robbery. Sargon Odisho was supplier of significant quantities of drugs and he was in possession of a substantial quantity of cocaine and money. He was also in possession of three firearms. He used one of them to fire six rounds at the intruders. 4. Sargon Odisho was charged with drug and firearm offences. He pleaded guilty and is presently serving a term of imprisonment. He has expressed a fear of giving evidence for the prosecution and has declined to answer many questions. 5. Sargon Odisho is clearly a witness capable of giving highly material evidence about many aspects of the incident. He was present, either directly or in the close vicinity, throughout. He has cooperated in giving evidence about matters concerning his own conduct, including that which gave rise to the charges for which he is currently serving a sentence. 6. However, albeit in a respectful manner, he has indicated a number of times that he "does not feel comfortable" answering questions that relate to the conduct of others, namely the two intruders to his home. That has extended to him "not feeling comfortable" answering questions about what he told police in the aftermath of the incident. He has maintained this attitude despite directions to answer. This has not come as a surprise as he adopted much the same approach when giving evidence at a pre-trial hearing on 16 February 2022. The Crown has given notice to the defence of an intention to seek leave to cross-examine him in the event he did not fully co-operate in his evidence before the jury. 7. The Crown Prosecutor adopted an approach of endeavouring to elicit as much evidence from Mr Odisho as he was prepared to give before indicating she had an application. Then, in the absence of the jury, she sought leave to question Mr Odisho pursuant to s 38 of the Evidence Act 1995 (NSW) on each of the three bases set out in sub-s (1): that the evidence is unfavourable to the Crown; he is not making a genuine attempt to give evidence; and he has made a prior inconsistent statement. I accept that each is apt in the circumstances. 8. The Crown Prosecutor commenced submissions by isolating particular aspects of the evidence for which leave was sought. However, there is nothing to be achieved by that as the refusal of Mr Odisho to co-operate in giving evidence extends to the topics of the home invasion incident and the subsequent statements he made to police in their entirety. 9. With his usual realistic and responsible approach, counsel for the accused did not wish to be heard against the grant of leave. 10. There is nothing in s 192 of the Evidence Act that would militate against a grant of leave. 11. Leave is granted to the Crown pursuant to s 38 of the Evidence Act to question Mr Sargon Odisho about the alleged home invasion and about the statements he made to the police about it. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 May 2022