R v Yavuz (No. 3) - [2018] NSWSC 573

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 1705
Category: Costs
Parties: Crown
John Can Yavuz (Accused)
Representation:
Counsel:
N Williams (Crown)
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…

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. 3)

Details

AGLC: R v Yavuz (No. 3) [2018] NSWSC 573
Case: [2018] NSWSC 573
Decision Date: 04 May 2018

CaseChat Overview and Summary

The case before the court involved the defendant, Yavuz, who was on trial for the serious offence of murder. The dispute centred on whether the proceedings should be stayed or adjourned until the Crown had paid the legal costs incurred by the accused. The matter was heard in the Supreme Court of New South Wales. The crux of the legal issues before the court was whether it had the discretion to order a stay of the proceedings until the Crown paid the accused’s legal costs, which had been thrown away due to the discharge of the jury, leading to a retrial. The accused argued that the Crown's actions amounted to serious fault, which caused him significant unfairness.

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