R v Yasso - [2007] VSCA 306

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 87 of 2005

THE QUEEN
	v
MAZIN YASSO

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JUDGES:	MAXWELL P, REDLICH JA and HABERSBERGER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 February 2007 and 28 May 2007
DATE OF JUDGMENT:	14 December 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 306

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CRIMINAL LAW – Conviction – Murder of estranged wife by stabbing – Inaccurate or incomplete interpreting at hearing of appeal – Fresh hearing of appeal – Whether open on evidence for jury to reject provocation – Prosecutor’s duty of fairness to accused – Crown witnesses not called at second trial – Whether purported irregularities at trial led to miscarriage of justice – Appeal dismissed.

CRIMINAL LAW – Sentence – Murder – Offence committed in breach of intervention order – Whether sentencing judge erred in imposing identical sentence upon retrial – Whether sentence of 20 years’ imprisonment with non-parole period of 15 years manifestly excessive – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
Mr J Walsh on behalf of the Applicant

MAXWELL P:

On 8 May 2001, the applicant stabbed his estranged wife (EH) to death. She was then 32 and he was 44. He is now 50 years of age.

On 11 September 2002, the applicant was convicted of murder by a Supreme Court jury. He was sentenced to 20 years’ imprisonment with a minimum of 15 years. That conviction was set aside on appeal.[1] The re-trial commenced on 7 February 2005. The applicant again pleaded not guilty to murder. He did not give evidence, but called one witness. On 2 March 2005, the jury returned a verdict of guilty. On 21 March 2005, the trial judge sentenced the applicant to 20 years’ imprisonment with a non-parole period of 15 years. The applicant seeks leave to appeal against conviction and sentence.
[1]R v Yasso (No 2) (2004) 10 VR 466.

The applicant was represented at each of the trials but was unrepresented on the hearing of the appeal. He was very considerably assisted by a friend, Mr John Walsh, in the preparation of his appeal grounds and in the presentation of his written argument. Mr Walsh deserves the highest commendation for his efforts over a long period on the applicant’s behalf.

As the applicant has little English, he was assisted by an interpreter when the hearing of the appeal commenced on 19 February 2007. At the end of the morning’s argument, a cousin of the applicant informed the Court that, in his opinion, the interpreter who had been assisting the applicant was not interpreting accurately. Upon the resumption, the applicant’s cousin gave the Court a number of examples of what he considered to be inaccurate or incomplete translation.

It is, of course, an elementary requirement of natural justice that a defendant in criminal proceedings be able to participate fully, to present argument and answer questions, and to understand everything that is said by the bench…

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 Yasso

Details

AGLC: R v Yasso [2007] VSCA 306
Case: [2007] VSCA 306
Decision Date: 14 December 2007

CaseChat Overview and Summary

The appellant appealed his conviction for the murder of his estranged wife, challenging both the correctness of the conviction and the sentence imposed. The appeal was heard by the High Court of Australia. The primary issue before the court was whether the evidence presented at the original trial was sufficient for the jury to reject the defence of provocation. Additionally, the court needed to determine if the prosecution's failure to call certain witnesses at the retrial constituted a breach of their duty of fairness to the accused. Another issue was whether alleged irregularities at the original trial resulted in a miscarriage of justice. The court also examined the proportionality of the sentence imposed following the retrial, specifically whether the sentencing judge erred in imposing the same sentence as in the original trial and whether the sentence was manifestly excessive.

The court found that the jury was properly directed on the issue of provocation and that the evidence was sufficient for them to reject the defence. It was concluded that the prosecution's decision not to call certain witnesses at the retrial did not breach their duty of fairness. The court also found no evidence that the alleged irregularities at the original trial led to a miscarriage of justice. Regarding the sentence, the court determined that the sentencing judge did not err in imposing the same sentence as in the original trial and found that the sentence was not manifestly excessive. The appeal was dismissed.

The court upheld the conviction and sentence, finding no basis for the appeal on any of the grounds presented. The original conviction and sentence remained valid, with no new trial or resentencing ordered.

Orders