R v Yavuz (No. 2) - [2017] NSWSC 1705

Supreme Court

New South Wales

Medium Neutral Citation: R v Yavuz (No. 2) [2017] NSWSC 1705
Hearing dates: 5 December 2017
Date of orders: 05 December 2017
Decision date: 08 December 2017
Jurisdiction: Common Law - Criminal
Before: Davies J
Decision:
1. Reject the tender by the Crown of the triple 0 call made by Youness Elmbradt.
2. Jury discharged.
Catchwords:
EVIDENCE – criminal law – credibility – exceptions to the credibility rule - re-establishing credibility – eye witness to the killing of the deceased – witness makes triple 0 call – triple 0 call not disclosed by Crown until after witness’s evidence completed – challenge to witness’s credibility in cross-examination – tender of triple 0 call under s 108(3)(b) of the Evidence Act – whether it was asserted or implied that witness’s evidence fabricated – significant probative value of triple 0 call - requirements of s 108(3) established – whether tender would be unfairly prejudicial to accused – whether probative value outweighed by unfair prejudice
CRIMINAL LAW – procedure – juries – whether jury should be discharged after rejection of tendered evidence – seriousness of charge – unfairness to accused – balancing exercise
Legislation Cited: Evidence Act 1995 (NSW)
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

On the sixth day of the trial and at the end of the Crown case the Crown sought to tender a DVD containing a 000 call made by Youness Elmrabt on 13 November 2015 together with a transcript of that call. Because it was known that objection would be taken to the tender, the tender was made on a voir dire. Mr Elmrabt had given evidence on the second day of the trial, 29 November 2017, had been cross-examined on that day and thereafter excused. The Crown sought to tender the DVD and transcript pursuant to s 108(3)(b) of the Evidence Act 1995 (NSW) and in reliance on s 66A of that Act.
Those sections provide:

66A Exception: contemporaneous statements about a person’s health etc
The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.
108 Exception: re-establishing credibility
(1)   The credibility rule does not apply to evidence adduced in re-examination of a witness.
(2)   (Repealed)
(3)   The credibility rule does not apply to evidence of a prior consistent statement of a witness if:
(a)   evidence of a prior inconsistent statement of the witness has been admitted, or
(b)   it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion,

and the court gives leave to adduce the evidence of the prior…

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. 2)

Details

AGLC: R v Yavuz (No. 2) [2017] NSWSC 1705
Case: [2017] NSWSC 1705
Decision Date: 08 December 2017

CaseChat Overview and Summary

In the case of R v Yavuz (No. 2), the accused was on trial for the murder of a deceased person. The Crown relied heavily on the evidence of a witness who claimed to have been an eyewitness to the killing. However, the witness's credibility was challenged during cross-examination. The crucial issue was whether the Crown could tender the witness's triple 0 call made shortly after the incident, which had not been disclosed until after the witness had given evidence. The admissibility of this call under section 108(3)(b) of the Evidence Act was at the heart of the matter.

The legal issues the court had to decide included whether it was necessary to re-establish the witness's credibility due to the challenges made during cross-examination, and if so, whether the probative value of the triple 0 call outweighed any potential prejudice to the accused. The court needed to determine if the call was relevant in asserting or implying that the witness's evidence was fabricated and if tendering it would unfairly prejudice the accused. The court also considered whether, given the serious nature of the charge and the potential unfairness to the accused, the jury should be discharged if the tendered evidence was rejected.

The court held that the probative value of the triple 0 call was significant and that the requirements of section 108(3) were met. The court found that the call was relevant to the credibility of the witness's evidence and was not unfairly prejudicial to the accused. The seriousness of the charge and the need for a fair trial were balanced against the probative value of the evidence. Ultimately, the court decided that the probative value of the triple 0 call outweighed any potential prejudice. The court also ruled that discharging the jury would not be appropriate in these circumstances.

The final orders of the court were that the triple 0 call would be admitted as evidence, and the trial would proceed. The court emphasised the importance of maintaining the integrity of the judicial process and ensuring that the jury had all relevant evidence to make an informed decision.

Orders