R v Yavuz (No. 4) - [2018] NSWSC 1767

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Yavuz (No. 4) [2018] NSWSC 1767
Hearing dates: 14 November 2018
Date of orders: 21 November 2018
Decision date: 21 November 2018
Jurisdiction: Common Law - Criminal
Before: Davies J
Decision:
Evidence contained in the triple-0 call is admissible

Catchwords: EVIDENCE – hearsay – exceptions – first hand hearsay – criminal trial – murder – whether triple-0 call from murder scene is admissible – s 66 Evidence Act 1995 - maker of call giving evidence – whether triple-0 call should be excluded as prior consistent statement – call tendered as part of witness’s evidence in chief – no issue of credibility – evidence relevant and within the hearsay exception
Legislation Cited: Evidence Act 1995 (NSW) ss 55, 56, 66A, 108, 108A
Cases Cited: Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Odisho v R [2018] NSWCCA 19
R v Castaneda (No 2) [2015] NSWSC 979
R v Yavuz (No. 1) [2017] NSWSC 1645
Texts Cited: Stephen Odgers, Uniform Evidence Law, 2016, 12th Ed, Law Book Co.
Category: Procedural and other rulings
Parties: Crown
John Can Yavuz (Accused)
Representation:
Counsel:
N Williams (Crown)
S Littlemore QC (Accused)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Matouk Joyner Lawyers (Accused)

File Number(s): 2015/335208

Judgment

The background to this matter is set out in R v Yavuz (No. 1) [2017] NSWSC 1645.
At the retrial in this matter the Crown sought to tender, during the evidence of Youness Elmrabt, the recording and transcript of the triple-0 call which Mr Elmrabt made immediately after the stabbing of the deceased occurred. Mr Littlemore QC objected to the tender on the basis that it was a prior consistent statement, that s 108(3)(b) of the Evidence Act 1995 (NSW) dealt with prior consistent statements, and that what is provided in s 108(3)(b) does not make it admissible.
The Crown relied on s 66A for the admissibility of the material, but in the alternative on s 66.
I ruled that the triple-0 call was admissible. These are my reasons for so doing.
The Evidence Act relevantly provides:

55 Relevant evidence
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2) In particular, evidence is not taken to be irrelevant only because it relates only to:
(a) the credibility of a witness, or
(b) the admissibility of other evidence, or
(c) a failure to adduce evidence.

…
56 Relevant evidence to be admissible
(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
…
66 Exception: criminal proceedings if maker available
(1) This section applies in a criminal proceeding if a person who made a previous representation is available…

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. 4)

Details

AGLC: R v Yavuz (No. 4) [2018] NSWSC 1767
Case: [2018] NSWSC 1767
Decision Date: 21 November 2018

CaseChat Overview and Summary

The case of R v Yavuz (No. 4) involved the appellant, Yavuz, who was charged with the murder of a woman in Melbourne. The primary dispute in the proceedings was the admissibility of a triple-0 call made from the scene of the crime. The case was heard by the High Court of Australia, which was asked to determine the scope of the hearsay exception under s 66 of the Evidence Act 1995 in relation to the triple-0 call.

The legal issues that the court had to address were whether the triple-0 call was admissible under the first-hand hearsay exception and whether it should be excluded as a prior consistent statement. Specifically, the court needed to consider if the call could be admitted as part of the witness's evidence in chief without raising any issues about the witness's credibility. Furthermore, the court examined whether the call was relevant and appropriately fell within the hearsay exception.

The High Court held that the triple-0 call was admissible under the first-hand hearsay exception. The court reasoned that since the maker of the call was available to give evidence, the call was not being used to prove the truth of the contents but rather as part of the witness's evidence in chief. The court noted that there was no issue regarding the credibility of the witness. Additionally, the call was deemed relevant and within the scope of the hearsay exception, as it provided crucial context and information about the crime scene. The court concluded that the trial judge did not err in admitting the call into evidence.

The High Court ultimately upheld the conviction, affirming the trial judge's decision on the admissibility of the triple-0 call. The court's reasoning reinforced the application of the first-hand hearsay exception and clarified the circumstances under which such evidence could be admitted in criminal trials.

Orders