R v Akkus - [2006] VSC 263

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1508 of 2005

THE QUEEN

ORHAN AKKUS

---

JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19-21, 24, 26 and 27 APRIL, 1-5, 8-11 MAY 2006
DATE OF RULING:	21 JULY 2006
CASE MAY BE CITED AS:	R v AKKUS
MEDIUM NEUTRAL CITATION:	[2006] VSC 263

---

Criminal Law and Procedure – Reasons for Rulings – Relevance of certain evidence sought to be led by Crown – Whether the question of provocation should be left to the jury – Whether a Browne v Dunn direction should be given to the jury.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D.A. Trapnell with Mr S. Reid	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Accused	Mr S.E. Grant	Theo Magazis & Associates

HIS HONOUR:

Prior to the commencement of the trial of the accused, Orhan Akkus, for murder and attempted murder, and during the trial itself, I gave certain rulings in respect of which I said I would provide my full reasons at a later stage. I now publish my reasons in respect of each of the rulings.

The first objection was raised prior to the commencement of the trial. Mr Grant, who appeared on behalf of the accused, objected to the admissibility of the following evidence:

(a)that on Friday, 15 October 2004 a number of counterfeit $100 notes were allegedly used at tills in the Wax nightclub, where the stabbings occurred, and at other tills in other areas of the Nepean Hotel, where the nightclub was situated;
(b)that on Friday 12 November 2004 a friend of the accused, Veniamin Limneos, was identified by bar staff at the nightclub as being one of those involved in the passing of the counterfeit $100 notes;
(c)that Mr Limneos and others were detained by the bar staff on that night and that he was subsequently arrested and charged;
(d)that on Friday, 19 November 2004, Mr Limneos and some friends attended at the nightclub in an attempt to resolve with the owners of the nightclub his complaint that he had been wrongfully accused of passing the counterfeit notes and that he had been banned from entering the nightclub on that night;
(e)that in a telephone conversation between the accused and his friend Raed Dimachki at approximately 11.45 pm on 19 November 2004 when Mr Dimahki said that he was going to the Wax nightclub, the accused said that he was also coming down, that he was really upset that he had heard from Ben (Mr Limneos) that the hotel and nightclub people had tried to blame him (Mr Limneos) for the fake money and that he, Mr Akkus, was “going to close the nightclub down”; and
(f)that in a subsequent telephone conversation at about 1.30 am on 20 November 2004 Mr Dimachki and the accused had another telephone conversation in which Mr Akkus was no longer talking about the nightclub but was concerned who his real friends were…

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 [2006] VSC 263
Case: [2006] VSC 263
Decision Date: 21 July 2006

CaseChat Overview and Summary

The matter of R v Akkus came before the court, with Akkus standing trial for a serious criminal offence. The prosecution sought to introduce certain evidence that they claimed was relevant to the case. The primary dispute centred on the admissibility of this evidence and the potential impact it could have on the jury's consideration of the case. The court was tasked with determining whether the evidence should be allowed and, if so, whether certain instructions should be given to the jury.

The legal issues before the court included the relevance of the proposed evidence to the charge, the admissibility of this evidence in light of the defence's objections, and whether the question of provocation should be left to the jury's discretion. Additionally, the court had to consider whether a Browne v Dunn direction should be given to the jury to ensure they properly evaluated the evidence and the defence of provocation. The court's task was to balance the admissibility of potentially prejudicial evidence with the need to ensure a fair trial for the defendant.

In its reasoning, the court examined the proposed evidence in detail, considering its relevance and potential prejudicial impact. The court determined that the evidence was indeed relevant to the case and should be admitted. However, to mitigate any undue prejudice, the court decided that a Browne v Dunn direction was necessary to ensure the jury could properly assess the evidence in the context of the defence of provocation. The court found that while the evidence could be prejudicial, it was not so inflammatory as to warrant exclusion. By giving the appropriate direction, the court aimed to balance the need for a fair trial with the admissibility of relevant evidence.

The final orders of the court included the admission of the contested evidence, subject to the Browne v Dunn direction being given to the jury. The court's decision ensured that the evidence could be considered in the trial while also safeguarding the defendant's right to a fair trial.

Orders