R v Akkus - [2007] VSCA 287

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 240 of 2006

THE QUEEN
	v
ORHAN AKKUS

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JUDGES:	CHERNOV, VINCENT and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 October 2007
DATE OF JUDGMENT:	11 December 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 287	First revision – 11 December 2007

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Criminal Law – Conviction – Murder – Intentionally causing serious injury – Nightclub stabbing of two victims proximate in time – Whether applicant’s post event conduct amounted to a consciousness of guilt – Credibility of applicant’s version of events – Applicant’s failure to complain of his involvement – Consciousness of guilt in respect of two stabbings – Whether evidentiary basis existed to distinguish between stabbing of both victims – Incidents treated by prosecution and defence as two related events occurring moments apart – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle, QC	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr G F Meredith	Theo Magazis & Associates

CHERNOV JA:

I consider that this application should be refused for the reasons given by Vincent JA.

VINCENT JA:

The applicant was, on 11 May 2006, found guilty by the jury empanelled on his trial of the murder of Mark Russo (count 4) and of intentionally causing serious injury to Carl Russo (count 2) at Moorabbin on 20 November 2004.[1]
[1]After hearing a plea in mitigation of penalty, the sentencing judge, on 21 July 2006, imposed a term of imprisonment of 22 years in respect of which a non-parole period of 17 years was fixed.

He now seeks leave to appeal against these convictions.

The background[2]

[2]This summary has been prepared from the Crown’s summary of evidence, the trial transcript, and the judge’s charge. It does not purport to represent the entirety of the evidence of any of the witnesses or to refer to that given by all of the witnesses at the trial. Emphasis has been placed upon the descriptions given with respect to the circumstances close to and at the time knife wounds were sustained by Mark and Carl Russo.

Mark Russo (‘Mark’) and Carl Russo (‘Carl’) were a part of a group of friends who regularly attended the ‘Wax’ nightclub at Moorabbin on Friday nights and were there in the early hours of 20 November 2004.

The applicant was also present on that night, arriving after 2.00am. He too met up with a group of friends, having previously attended with his wife and young daughter at a family party at a reception centre in the northern suburbs.

Shortly after 3.00am, the applicant and Tarek Dimachki walked through the nightclub and stood near a group which included Mark and Carl Russo. It was common ground at the trial that when Carl went to move past the applicant, he bumped the applicant’s shoulder and words were exchanged. The Crown contended that, in response, the applicant pushed Carl, causing him to step back, but

then he moved towards the applicant. As he did…

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 Akkus

Details

AGLC: R v Akkus [2007] VSCA 287
Case: [2007] VSCA 287
Decision Date: 11 December 2007

CaseChat Overview and Summary

The case of R v Akkus involved a conviction for murder and the related issue of intentionally causing serious injury, with two victims being stabbed at a nightclub. The applicant contested his conviction, arguing that his post-event conduct did not amount to a consciousness of guilt and questioning the credibility of his version of events, including his failure to complain about his involvement in the stabbings. The court was tasked with determining whether the applicant's conduct after the event indicated a consciousness of guilt and whether there was an evidentiary basis to distinguish between the stabbings of the two victims.

The court examined the applicant's post-event conduct, including his failure to complain about his involvement, to assess whether it amounted to a consciousness of guilt. It considered the credibility of the applicant's version of events, noting that the prosecution and defence treated the incidents as two related events occurring moments apart. The court also evaluated whether the applicant's conduct was consistent with a consciousness of guilt in relation to both stabbings. Ultimately, the court found that the applicant's conduct did amount to a consciousness of guilt and that there was no evidentiary basis to distinguish between the stabbings of the two victims.

In conclusion, the court dismissed the applicant's appeal, upholding the conviction for murder. The reasoning centred on the applicant's post-event conduct and the credibility of his version of events. The court held that the applicant's conduct following the incident indicated a consciousness of guilt and that the evidence did not support a distinction between the stabbings of the two victims. The final orders of the court were to dismiss the application, thereby maintaining the conviction for murder.

Orders