Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v Yavuz (No. 3) [2018] NSWSC 573 Hearing dates: 23 April 2018 Date of orders: 04 May 2018 Decision date: 04 May 2018 Jurisdiction: Common Law - Criminal Before: Davies J Decision: (1) There be a stay of proceedings against the accused until the accused’s costs of $80,000 are paid by the Crown.
(2) Nothing in order (1) prevents:
(a) the fixing or alteration of the trial date;
(b) compliance by the parties with the statutory requirements of the Criminal Procedure Act 1986 (NSW);
(c) the making of any directions by the trial judge.Catchwords: CRIMINAL LAW – procedure – adjournment, stay of proceedings or order restraining proceedings – murder proceedings – power to order stay of proceedings until Crown paid legal costs of accused thrown away due to discharge of jury and retrial – serious fault on part of Crown caused unfairness to accused – Crown sought discharge of jury after Court refused to allow it to tender evidence at the end of its case – evidence corroborated principal witness and was described as “critical” but was not previously made available – costs of accused assessed by measure of reasonableness Legislation Cited: Criminal Procedure Act 1986 (NSW) ss 75, 142(1)(j), 147, 148 Cases Cited: Lee v Attorney-General for NSW [2017] NSWCCA 27
R v Bucksath [2000] NSWCCA 135; (2000) 114 A Crim R 1
R v Carbone (No. 2) [2017] NSWSC 346
R v Fisher (2003) 56 NSWLR 625; [2003] NSWCCA 41; (2003) 138 A Crim R 318
R v Michael John Issakidis [2015] NSWCCA 834
R v Yavuz (No. 2) [2017] NSWSC 1705Category: Costs Parties: Crown
John Can Yavuz (Accused)Representation: Counsel:
Solicitors:
N Williams (Crown)
L Bewsher (Accused)
Office of the Director of Public Prosecutions (NSW) (Crown)
Matouk Joyner Lawyers (Accused)
File Number(s): 2015/335208
Judgment
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The accused is charged with murdering Charlie El-Azzi on 13 November 2015.
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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.
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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…
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- AGLC
- R v Yavuz (No. 3) [2018] NSWSC 573
- Case
- [2018] NSWSC 573
- Decision Date
CaseChat Overview and Summary
The court examined the circumstances leading to the discharge of the jury, which occurred after the Crown had sought to tender critical, corroborative evidence at the end of its case, despite the court previously refusing to allow this evidence to be presented. The court had to determine whether such fault on the part of the Crown warranted an order for the Crown to pay the accused’s legal costs before the retrial proceeded. The accused submitted that the Crown's conduct was unreasonable and prejudiced his right to a fair trial. The court considered the principles of fairness and the discretion available under the relevant legislation to ensure that the accused's right to a fair trial was upheld.
The court held that it had the discretion to order a stay of the proceedings until the Crown paid the accused’s legal costs, given the circumstances. The Crown's actions were found to have caused significant unfairness to the accused, particularly in the context of the critical nature of the evidence that was not previously made available. The court concluded that the accused's right to a fair trial was compromised, and the Crown's conduct amounted to serious fault. The court exercised its discretion to order a stay of the proceedings until the Crown paid the legal costs of the accused, ensuring that the accused's right to a fair trial was preserved.
Orders
Orders of the court
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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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