R v Akkus
[2006] VSC 263
•21 July 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1508 of 2005
| THE QUEEN |
| v |
| 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 and Mr Dimachki said to him to come to the nightclub to have a chat about this.
Mr Grant submitted that the above evidence was not relevant in that:
(a)there was no evidence of pre-existing animus between the accused and the deceased;
(b)there was no discernible relationship between Mr Limneos and the four unidentified alleged passers of counterfeit money and the deceased;
(c)there was no close temporal connection between the alleged passing of the counterfeit money on 15 October and the stabbings on 20 November 2004;
(d)to use the alleged statement of the accused about closing the nightclub down as a motive for murder of the deceased would involve speculation and impermissible reasoning;
(e)as the above evidence showed the alleged critical telephone conversation was followed by another telephone conversation about other matters.
Alternatively, Mr Grant submitted that even if this evidence had some probative value, it should be rejected because of the prejudicial effect in that it painted a picture of the accused being involved with criminal elements who had passed counterfeit money and that Mr Akkus was involved to such an extent that he was prepared to commit murder as some sort of assistance to Mr Limneos.
Mr Trapnell, who appeared with Mr Reid on behalf of the Crown, submitted that the challenged evidence was relevant and admissible in that it provided a motive for the stabbing of the two men at the nightclub and arguably demonstrated the state of mind of the accused on the night in question. As for the suggestion that the prejudicial effect of this evidence outweighed its probative value, Mr Trapnell submitted that there was no suggestion that the accused was in any way involved in the passing of the counterfeit notes. Moreover, it was clear that Mr Akkus’s state of mind was that Mr Limneos had been falsely accused by the owners of the nightclub of being involved in this alleged criminal activity.
In R v Stephenson the Full Court of this Court dealt with the concept of relevance:
“Although logic is the test of relevance, not all evidence which is logically relevant is legally admissible. The logical connection between a fact and the issue to be determined may be so slight that the fact is treated as too remote and evidence of it as inadmissible. In some cases, such evidence is described as being irrelevant, an expression which must be taken to indicate that its weight is so minimal that it does not serve to add to or detract from the probability of the principal issue being established. Such evidence may be more correctly described as insufficiently relevant or too remotely relevant.”[1]
[1][1976] VR 376 at 380-381 per Young CJ, Nelson and Harris JJ. See also R v Priest [2002] VSCA 215 at [19] per Callaway JA, with whom Ormiston JA and O’Bryan AJA agreed.
The Full Court also quoted with apparent approval[2] the statement of Willes J in Hollingham v Head:
“It may be often difficult to decide upon the admissibility of evidence, where it is offered for the purpose of establishing probability, but to be admissible it must at least afford a reasonable inference as to the principal matter in dispute. No doubt the rule, confining evidence to that which is relevant, is one of great importance; not only with regard to the particular case in which it has to be applied, but with reference to saving the time of the Court, and preventing the minds of the jury being prejudiced, and distracted from the point of issue.”[3]
[2][1976] VR 376 at 381
[3](1858) 27 LJCP 241 at 242
It seemed to me that the evidence of the first telephone conversation between Mr Akkus and Mr Dimachki was too remote, particularly when there was nothing in the later telephone conversation, which was much closer in time to Mr Akkus’s arrival at the nightclub and the subsequent stabbings, to suggest that the topic of “closing the nightclub down” was any longer being considered. I therefore ruled that all of the evidence sought to be led by the Crown on this question was inadmissible.
Alternatively, I considered that the probative value of all of this evidence was outweighed by the prejudicial effect. I accepted Mr Grant’s submission that it suggested some involvement by the accused in criminal activity, which was far removed from the events with which Mr Akkus was charged. Given that all of the additional evidence was required in order to make sense of the alleged statement by the accused in his telephone conversation with Mr Dimachki, in my opinion it would have been quite distracting from the real issues in the case.
The second preliminary issue raised by the defence was to object to the admissibility of the evidence about the knives found by the police in the kitchen at the accused’s home. In summary, this evidence was that the police located three different types of knives in the accused’s kitchen – a stainless steel knife, a shorter stainless knife like a vegetable knife and a set of six serrated edge knives. The first two knives were said to be similar in construction to the large carving type knife which remained in the body of the deceased. No carving knife was found at the accused’s home.
Mr Grant submitted that all of this evidence was not relevant and was therefore inadmissible. He argued that there was no evidence that any of the knives formed part of a set or that they could not be purchased on their own. It was just too remote.
Mr Trapnell submitted that this evidence, and the criticisms which might be made of it, were ultimately a matter for the jury. If the first two of the knives found at the accused’s home were tendered, then the jury would be able to look at them and at the knife from the deceased’s body and make their own comparisons and form their own conclusions about whether they appeared to come from the same set. The evidence was relevant and admissible. Defence counsel would have ample opportunity in cross-examination and final address to advance any criticisms of the suggestion that the knives all came from the same set.
In my opinion, Mr Trapnell was correct in submitting that this issue was ultimately a matter for the jury. I did not consider it to be too remote. It was relevant and therefore it was admissible and I ruled accordingly.
The next ruling concerned the question of whether or not I should leave the question of provocation to the jury. Whilst it was not part of the defence case, Mr Grant submitted that the issue should be left to the jury, whereas Mr Trapnell on behalf of the Crown opposed that course.
In considering this issue I was conscious of the observations of the members of the High Court of Australia in Masciantonio v The Queen[4] concerning the respective roles of the judge and the jury. Brennan, Deane, Dawson and Gaudron JJ said that:
“as a matter of practicality a trial judge is likely to lean towards leaving provocation if he or she can.”[5]
Their Honours also quoted a passage from the decision of the Privy Council in Lee Chun-Chuen v The Queen[6] which included the statement that:
“A judge is naturally very reluctant to withdraw from a jury any issue that should properly be left to them and he is therefore likely to tilt the balance in favour of the defence.”
[4](1995) 183 CLR 58
[5](1955) 183 CLR 58 at 68
[6][1963] AC 220 at 230
Further, in Masciantonio, McHugh said that:
“Once there is evidence of provocative conduct, the evaluation of that conduct and the effect on an ordinary person is almost invariably a question for the jury. A judge who takes the issue away from the jury assumes a grave responsibility.”[7]
[7](1995) 183 CLR 58 at 70
A second preliminary consideration was that the evidence must be taken at its highest in favour of the accused.[8] This meant acceptance, for these purposes, of the accused’s evidence that he had been aggressively bumped by Carl Russo who then attacked him aided by four or more other men, one of whom was carrying a knife, and who were involved in pushing, shoving, punching and kicking the accused, whilst at the same time one or more of them was yelling at him that he was going to be killed.
[8]The Queen v Ivanovic [2005] VSCA 238 at [61], [71] and [76] per Eames JA, with whom Nettle JA and Hollingworth AJA agreed.
In terms of the subjective component of the provocation defence, the Crown not surprisingly emphasised that at no stage had Mr Akkus said that he had lost his self-control. Rather, he had said that the first three stabbings must have occurred accidentally when he attempted to ward off his attackers, after picking up the fallen knife from the floor, and that the last stabbing had occurred when Mark Russo lunged at him and impaled himself on the knife as he, the accused, attempted to make his escape. Mr Trapnell therefore submitted that, the accused having given his explanation of what happened on oath, it was not open to a reasonable jury to conclude that even though the accused had had the presence of mind to pick up the knife and initially kept it by his side to avoid injuring anyone, he then lost his self-control and stabbed two people four times. Nevertheless, it seemed to me that acceptance of the evidence at its highest in favour of the accused on the question of provocation did not necessarily mean accepting everything he said about the incident. Thus, it seemed to me that it was open to the jury to accept Mr Akkus’s evidence, supported to some extent as it was by the evidence of other witnesses, that he was subjected to an attack by five or more men, one or more of whom did threaten to kill him, no doubt with the knife which later ended up with the accused, but to reject Mr Akkus’s evidence that the stabbings were accidental and to conclude that he lashed out with the knife when deprived of his self-control. As Eames JA said in Ivanovic:
“Provocation may arise due to a sudden and temporary loss of self control by virtue of emotions of fear or panic, rather than of anger or resentment. It is not essential that the accused had at some time stated that he had lost self-control. Indeed, where the evidence permitted the inference to be drawn, the jury could conclude that there had been a loss of self control even though the accused denied that he had lost his temper.” [9] [Footnotes omitted.]
[9][2005] VSCA 238 at [67]
Moreover, as I put to Mr Trapnell in argument, the fact that the accused had violently stabbed Mark Russo three times arguably provided some evidence that he had in fact lost self-control at the relevant time.[10]
[10]See Ivanovic [2005] VSCA 238 at [63] per Eames JA.
Finally, the Crown submitted that no reasonable jury could conclude that what occurred to Mr Akkus could have caused an ordinary person to lose his self-control and stab Mark Russo with the intention to kill him or cause him really serious bodily injury. Mr Trapnell referred me to passages from the judgments of Eames JA and Nettle JA in Ivanovic[11] which suggested that even accepting “the view of the gravity and implications of the words and conduct most favourable” to the accused a jury could not entertain “a reasonable doubt that the relevant words and conduct were of such a nature that they could or might have caused an ordinary [twenty-seven] year old man, with powers of control within the range or limits of what is ordinary for a person of that age”,[12] to do what the accused did.
[11][2005] VSCA 238 at [80] per Eames JA and at [109] per Nettle JA
[12]Ivanovic [2005] VSCA 238 at [109] per Nettle JA
I considered, however, that from the evidence one could construct a factual scenario in this case in which it would be the proper course to leave it to the jury to decide whether it was satisfied beyond reasonable doubt that the objective test of provocation was not made out. The scenario would be that the accused lost his self-control when attacked and threatened by the group of men including Carl and Mark Russo. In the ensuing struggle, one of his attackers dropped the knife, the accused picked it up and still deprived of his self-control lashed out with the knife in his hand. In my opinion, that factual scenario would be quite different to the facts in Ivanovic. Whether or not the necessary facts were found to exist would be a matter for the jury.
Accordingly, I ruled that the question of provocation should be left to the jury.
The final matter was a submission by Mr Trapnell on behalf of the Crown that I should give a Browne v Dunn[13] direction to the jury. He submitted that there were numerous matters in the account given by the accused in evidence which were never put in cross-examination to witnesses called by the Crown, in particular Carl Russo and Tarek Dimachki.
[13](1893) 6 R 67
With respect to the cross-examination of Carl Russo, Mr Trapnell submitted that although Carl Russo was asked about punching and shoving between him and Mr Akkus and about Mark Russo coming in and throwing punches, it was never put to him that at some stage there were five men attacking Mr Akkus. Further, Mr Trapnell submitted that although Carl Russo was asked if he asked his cousin whether he was armed that night, he was not asked whether he saw Mark Russo with a knife at any stage that night, or whether he, Carl Russo, had a knife that night, or whether he saw anybody with a knife or whether he saw a knife fall to the ground and the accused pick up a knife. Other omissions were mentioned but those were the two issues on which Mr Trapnell concentrated.
With respect to the cross-examination of Tarek Dimachki, Mr Trapnell submitted that although Tarek Dimachki was asked about a third person coming over to Mr Akkus and Carl Russo and grabbing Mr Akkus and about him also going over to the group, it was never put to him that there were any other people involved in punching, kicking or grabbing at Mr Akkus. Similarly, Mr Trapnell submitted that no questions were put to Tarek Dimachki concerning the accused’s evidence about the knife.
Mr Trapnell submitted that these omissions were not simply matters which were overlooked or forgotten, they were part of a deliberate forensic decision not to say anything about them until the accused gave evidence. He submitted that as the jury had been deprived of the opportunity of hearing what two important witnesses would say about these critical matters, it was not sufficient for counsel to make the point. Fairness required, he submitted, that I should give the standard Browne v. Dunn direction.
I agreed, however, with Mr Grant’s submission that these matters had been covered adequately in his cross-examination. It seemed to me that the jury would have been left in no doubt what Carl Russo and Tarek Dimachki would have said about the suggestion that there were five or more men attacking Mr Akkus. Both had given detailed evidence of what they recalled seeing of the fight and neither referred to any such number of participants. Further, it was clear that neither had seen a knife at any stage during the confrontation. Tarek Dimachki only saw it buried in Mark Russo’s side when he collapsed.
In reaching the conclusion that I would not give a Browne v Dunn direction to the jury I took into account what King CJ said in R v Manunta:
"I have been concerned about the prominence which the learned judge gave to these matters in the course of the summing up. It is legitimate, of course, to draw appropriate conclusions from counsel's failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds."[14]
[14](1989) 54 SASR 17 at 23
In R v Birks[15] Gleeson CJ, with whom McInerney J agreed, said that he respectfully adopted the views of King CJ. Gleeson CJ continued:
"I would add that one particular matter which makes it difficult for jurors to use the conduct of counsel as a basis for drawing inferences of fact is that most jurors are unaware of the principles, some of which have been set out earlier in this judgment, relating to the wide discretion available to counsel as to the manner in which a trial may be conducted. It may be easy for a jury, unless given an appropriate warning, to assume that a barrister is merely some kind of 'mouthpiece' for the client, conducting the case in clear conformity with the client's directions. For reasons that have already been explained, this is far from the truth."[16]
[15](1990) 19 NSWLR 677
[16](1990) 19 NSWLR 677 at 691-692
In R v McLachlan, Callaway JA, with whom Phillips CJ and Buchanan JA agreed, said:
"If a Browne v Dunn direction was to be given at all, the jury should have been told that there may have been a good reason for counsel’s not observing the rule, which came across as an inflexible principle breach of which necessarily connoted unfairness."[17]
[17][1999] 2 VR 553 at [50]
Therefore, in all the circumstances, it did not seem to me to be appropriate to give a Brown v Dunn direction to the jury and I ruled that no such direction would be given.
---
0