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R v Yavuz

R v Yavuz

Case [2020] ACTSC 117 3 March 2020

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Yavuz
Citation:	[2020] ACTSC 117
Hearing Date(s):	2 March 2020
DecisionDate:	3 March 2020
ReasonsDate:	14 May 2020
Before:	Loukas-Karlsson J
Decision:	The application to sever the indictment is refused.
Catchwords:	CRIMINAL LAW – PRE-TRIAL APPLICATION – Application to sever indictment – drug importation allegations – five accused awaiting trial – fourteen charges contained in a single indictment – some charges allege joint offences and others relate to other accused
Legislation Cited:	Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) s 43 Court Procedures Rules 2006 (ACT) r 4751 Crimes Act 1900 (ACT) s 264
Cases Cited:	Batistatos v Road and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256 R v Featherstone; R v Bloxsome (No 2) [2019] ACTSC 90 Hoyle v The Queen [2018] ACTCA 42; 339 FLR 11 Rogers v R (1994) 181 CLR 251 R v AI, AD and JR [2013] ACTCA 16 R v Assim [1966] 2 QB 249; 2 All ER 881 R v Dellapatrona and Duffield (1993) 31 NSWLR 123 R v Demirok [1976] VR 244 R v Fernando [1999] NSWCCA 66 R v Gibb and McKenzie (1982) 7 A Crim R 385 R v Hamzy (1994) 74 A Crim R 341 R v Henry; R v Gravett; R v Swansson [2008] NSWCCA 248 R v Jabal; R v Jabal; R v Poulakis [2019] ACTSC 319 Ross v The Queen [2012] NSWCCA 207 The Queen v CHS [2006] VSCA 19; 159 A Crim R 560 Williams v Spautz (1992) 174 CLR 509
Parties:	The Queen (Crown) Emin Yavuz (Accused)
Representation:	Counsel D Renton (Crown) G Wendler (Accused)
Solicitors Commonwealth Director of Public Prosecutions (Crown) Criminal Law Specialists (Accused)
File Number(s):	SCC 83 of 2019

Loukas-Karlsson J

Introduction

On 3 March 2020 I made an order refusing the application to sever the indictment.

I indicated at that time that reasons would be published at a later date. The reasons follow.

This was an interlocutory application pursued by Emin Yavuz in respect of an indictment dated 6 June 2019. The applicant sought to be severed from the indictment with a further order that he be tried separately from the co-accused identified on that indictment, Bilal Omari, Adam Jabal, Youssef Jabal, and Peter Poulakis. The charges on that indictment were, in general terms, as follows:

(a) Count 1: a charge that between about 28 August 2017 and 6 December 2017 each of the accused, with the exception of Adam Jabal, jointly imported a marketable quantity of a border controlled drug, namely MDMA.

(b) Count 2: a charge that between about 13 November 2017 and 30 November 2017 each of the accused, with the exception of Adam Jabal, jointly imported a commercial quantity of a border controlled drug, namely MDMA.

(c) Count 3: a charge that between 19 September and 20 September 2017, Peter Poulakis engaged in transactions for the purpose of avoiding reporting under s 43 of the Anti-Money…

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 Yavuz

Details

AGLC: R v Yavuz [2020] ACTSC 117
Case: [2020] ACTSC 117
Decision Date: 3 March 2020

CaseChat Overview and Summary

The defendants, Yavuz and four co-accused, appeared before the court in relation to their pending criminal trial involving allegations of drug importation. The defendants sought to have the single indictment, which contained fourteen charges, severed into separate indictments to address the distinct offences and parties involved. The matter was heard in the court of criminal jurisdiction.

The primary legal issue the court had to determine was whether the indictment should be severed to ensure a fair trial for the defendants. The defendants argued that the single indictment was prejudicial and confusing, as some charges alleged joint offences while others involved different defendants. They submitted that a severance would better protect their right to a fair trial by allowing for a more focused examination of the evidence against each defendant individually. The prosecution opposed the application, asserting that the charges were properly joined and that a severance would not necessarily lead to a fairer trial.

The court considered the principles surrounding the joinder of charges in criminal trials and the factors that should be taken into account in deciding whether to grant a severance. The court examined the nature of the offences, the extent of the overlap in evidence, and the potential for prejudice to the defendants if the charges were tried together. After careful consideration, the court found that the charges were properly joined, and the joinder did not unfairly prejudice the defendants. The court ruled that the application to sever the indictment should be refused, as the defendants would still have the opportunity to challenge the admissibility of evidence that was not directly related to them during the trial. Consequently, the single indictment would remain intact for the purposes of the trial.

Orders

Orders of the court

The application to sever the indictment is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Yavuz [2020] ACTSC 117

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Cases cited in this decision · 19 of 19 shown

R v Jabal; R v Jabal; R v Poulakis
[2019] ACTSC 319 Para 1

…applications for severance before Burns J on 21 August 2019. Those applications were refused on 19 November 2019: R v Jabal; R v Jabal; R v Poulakis [2019] ACTSC 319.…
R v Featherstone; R v Bloxsome (No 2)
[2019] ACTSC 90 Para 1

…Demirok was quoted with approval by the Court of Appeal in R v AI, AD and JR [2013] ACTCA 16 at [22]. See also: R v Featherstone; R v Bloxsome (No 2) [2019] ACTSC 90 .…
Hoyle v The Queen
[2018] ACTCA 42

…Batistatos v Road and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256 R v Featherstone; R v Bloxsome (No 2) [2019] ACTSC 90 Hoyle v The Queen [2018] ACTCA 42; 339 FLR 11 Rogers v R (1994) 181 CLR 251 R v AI, AD and JR [2013] ACTCA 16 R v Assim [1966] 2 QB 249; 2 All ER 881 R v Dellapatrona and Duffield (1993) 3…
R v AI, AD and JR
[2013] ACTCA 16 Para 1

…th cases expeditiously and the convenience of witnesses. The decision in Demirok was quoted with approval by the Court of Appeal in R v AI, AD and JR [2013] ACTCA 16 at [22]. See also: R v Featherstone; R v Bloxsome (No 2) [2019] ACTSC 90 .…
Ross v The Queen
[2012] NSWCCA 207

…zy (1994) 74 A Crim R 341 R v Henry; R v Gravett; R v Swansson [2008] NSWCCA 248 R v Jabal; R v Jabal; R v Poulakis [2019] ACTSC 319 Ross v The Queen [2012] NSWCCA 207 The Queen v CHS [2006] VSCA 19; 159 A Crim R 560 Williams v Spautz (1992) 174 CLR 509…
R v Henry; R v Gravett; R v Swansson
[2008] NSWCCA 248 Para 1

…The principles to be applied are usefully and comprehensively set out by Nettle AJA (as his Honour then was) in R v Henry; R v Gravett; R v Swansson [2008] NSWCCA 248 at [12]:…
Batistatos v Roads and Traffic Authority of New South Wales
[2006] HCA 27 Para 1

…buse of process: Williams v Spautz (1992) 174 CLR 509; Rogers v R (1994) 181 CLR 251; Batistatos v Road and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256.…
R v CHS
[2006] VSCA 19 Para 1

…The applicant for severance of the indictment bears the burden of establishing that there is a need for a separate trial: The Queen v CHS [2006] VSCA 19; 159 A Crim R 560 at [73]. That burden has not been met in this case for the following reasons:…
R v Alexander and McKenzie
[2002] VSCA 183

…etionary balancing exercise in which the concerns which support a joint trial must be weighed against the prejudices to the applicant ( R v Alexander [2002] VSCA 183; (2002) 6 VR 53, 67 [31]).…
R v Chami
[2002] NSWCCA 136

…sed. The same may be true where the circumstances are such as to create a serious risk of an irrational finding of guilt by association ( R v Chami [2002] NSWCCA 136; (2002) 128 A Crim R 428, 431). 5) In R v Middis (Supreme Court of New South Wales, Hunt J, 27 March 1991, unreported, 4); see also R v Baartman (Court…
R v Bikic
[2000] NSWSC 223

…trials should not be ordered unless it is demonstrated that there is a real risk of positive injustice as a consequence of a joint trial ( R v Bikic [2000] NSWSC 223; (2000) 112 A Crim R 163, 167 [22]-[23]). 3) Thirdly, while most joint trials may be productive of some degree of prejudice, prejudice of that sort w…
R v Georgiou
[1999] NSWCCA 125

…1991, unreported, 4); see also R v Baartman (Court of Criminal Appeal, 6 October 1994 unreported); R v Piller (1995) 86 A Crim R 249; R v Georgiou [1999] NSWCCA 125, [5]), Hunt CJ at CL identified three categories of case in which an order for separate trials may be warranted as follows: a) Where the evidence again…
R v Fernando
[1999] NSWCCA 66 Para 1

…related, the interests of justice are best served by a joint trial. In R v Assim [1966] 2 QB 249; 2 All ER 881 (quoted with approval in R v Fernando [1999] NSWCCA 66 at [199]), it was stated:…
Rogers v The Queen
[1994] HCA 42 Para 1

…urt has consistently held that there are no closed categories of abuse of process: Williams v Spautz (1992) 174 CLR 509; Rogers v R (1994) 181 CLR 251; Batistatos v Road and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256.…
Webb v the Queen
[1994] HCA 30

…itting an offence jointly or charged as participants in different degrees in relation to the same offence should be tried together ( Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 88-9). The concerns which support a joint trial in such circumstances include the trauma and inconvenience to witnesses which are…
Edwards v The Queen
[1993] HCA 63

…42; 339 FLR 11 Rogers v R (1994) 181 CLR 251 R v AI, AD and JR [2013] ACTCA 16 R v Assim [1966] 2 QB 249; 2 All ER 881 R v Dellapatrona and Duffield (1993) 31 NSWLR 123 R v Demirok [1976] VR 244 R v Fernando [1999] NSWCCA 66 R v Gibb and McKenzie (1982) 7 A Crim R 385 R v Hamzy (1994) 74 A Crim R 341 R v Henry; R v G…
Williams v Spautz
[1992] HCA 34 Para 1

…ccused, noting that the High Court has consistently held that there are no closed categories of abuse of process: Williams v Spautz (1992) 174 CLR 509; Rogers v R (1994) 181 CLR 251; Batistatos v Road and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256.…
R v Darby
[1982] HCA 32

…ate trials is where the evidence admissible against one accused is significantly different from the evidence admissible against the other ( R v Darby [1982] HCA 32; (1982) 148 CLR 668, 678). Another, is where there is a likelihood that some evidence which is led against one accused will be prejudicial to the oth…
[1966] 2 QB 249
[1966] 2 QB 249 Para 1

…The starting point is that where offences are related, the interests of justice are best served by a joint trial. In R v Assim [1966] 2 QB 249; 2 All ER 881 (quoted with approval in R v Fernando [1999] NSWCCA 66 at [199]), it was stated:…

Legislation cited in this decision · 3

Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth)
43 2 mentions
Court Procedures Rules 2006 (ACT)
4751 2 mentions (from Para 1)
Crimes Act 1900 (ACT)
264 2 mentions (from Para 1)