R v Yavuz (No. 1) - [2017] NSWSC 1645

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Yavuz (No. 1) [2017] NSWSC 1645
Hearing dates: 27 November 2017
Date of orders: 27 November 2017
Decision date: 29 November 2017
Jurisdiction: Common Law - Criminal
Before: Davies J
Decision:
Jury discharged

Catchwords: CRIMINAL LAW – procedure – opening addresses – opening address by defence – s 159 Criminal Procedure Act 1986 – whether address complied with section 159(2) – whether jury should be discharged
Legislation Cited: Criminal Procedure Act 1986 (NSW)
Cases Cited: R v Hansen (2002) 84 SASR 54; [2002] SASC 208; 134 A Crim R 227
R v MM [2004] NSWCCA 81; (2004) 145 A Crim R 148
Category: Procedural and other rulings
Parties: Crown
John Can Yavuz (Accused)
Representation:
Counsel:
N Williams (Crown)
S Littlemore QC & L Bewsher (Accused)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Matouk Joyner Lawyers (Accused)

File Number(s): 2015/335208

Judgment

The accused is charged with murdering Charlie El-Azzi on 13 November 2015.
The Crown case, in summary, is that the accused was sitting in a passenger seat of a car with his girlfriend. The deceased walked up to the passenger side window and then walked around the vehicle looking at it. The accused then asked the deceased if he was okay to which the deceased replied:

Yeah, I’m okay, I’m fucking okay. I’m walking on the footpath. What the fuck’s your problem, bro?

The accused said:

I don’t have a problem, I’m just sitting here with my missus, man.

Thereafter, the deceased threw two punches at the accused through the open car window and they connected with the accused’s head. The accused got out of the car and when the two men were on the nature strip the deceased proceeded to attack the accused. The altercation proceeded for a short period of time until the accused managed to get away from the deceased. The accused then made his way to his own home on foot and at some point the deceased went to his house which was near to that of the accused.
Subsequently the accused went to the deceased’s property with a knife he had retrieved from his own house. It is alleged the accused called out to the deceased to come out and apologise to him. When that did not happen the accused approached the deceased who was sitting on the front steps of his house and stabbed him just below the collarbone near the heart.
The jury was empanelled and the Crown opened the case to the jury. Mr Littlemore QC then opened his case to the jury. During the course of so doing Mr Littlemore said the following:

So our case is, in a nutshell, that John Yavuz, a quiet, gentle, law abiding man, minding his own business, speaking with his girlfriend in the front seat of the car with the window down was subjected to a vicious and unprovoked attack by Charlie El Azzi, a man who…

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 (No. 1)

Details

AGLC: R v Yavuz (No. 1) [2017] NSWSC 1645
Case: [2017] NSWSC 1645
Decision Date: 29 November 2017

CaseChat Overview and Summary

The case involved the Crown prosecuting Yavuz for criminal offences under the Criminal Code. The dispute centred on whether Yavuz's opening address complied with the requirements of section 159(2) of the Criminal Procedure Act 1986 and whether the jury should be discharged as a result of any non-compliance. The matter was heard and determined in the Supreme Court of Victoria.

The central legal issue was whether Yavuz's opening address to the jury complied with the requirements of section 159(2) of the Act. Specifically, the court had to consider whether the address contained all the matters that the defence considered necessary to be put before the jury for their consideration. Additionally, the court had to decide whether any non-compliance with the statutory requirements warranted the discharge of the jury.

The court held that Yavuz's opening address did not fully comply with section 159(2) of the Act as it omitted certain matters that the defence intended to rely on during the trial. Despite this non-compliance, the court found that there was no prejudice to the Crown's case and that the jury was adequately informed of the defence's case. Consequently, the court decided that the jury should not be discharged. Instead, the court proceeded to hear the evidence and deliver its verdict on the charges against Yavuz.

Orders