JUDGE:	Beale J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 December 2017
DATE OF RULING:	21 December 2017
CASE MAY BE CITED AS:	R v Yucel (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2017] VSC 807	First revision: 12 February 2018

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EVIDENCE – Public interest immunity – Accused is charged with murder – Defence of self-defence – Matters of State – Evidence Act 2008 ss 130, 130A.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M Rochford QC with Ms N Warda	Office of Public Prosecutions
For the Accused	Ms G Morgan	Steven Andrianakis & Associates
For the Chief Commissioner of Victoria Police	Mr C Tran with Ms K Chow	Victorian Government Solicitor’s Office
For the Commonwealth	Mr G Livermore	Australian Government Solicitors Office

HIS HONOUR:

Summary

This is a ruling on public interest immunity (PII) claims made by the Commissioner of the Australian Federal Police (AFP) and the Chief Commissioner of Victoria Police (VicPol) in response to subpoenas dated 12 September 2017 served by Kamil Yucel.

Mr Yucel is facing trial for the alleged murder of Rahat Khan. In very brief terms, Mr Khan and another man, Masinhulah Rawani, approached Mr Yucel outside his home in Dallas on the afternoon of 12 July 2016. There was a short, tense verbal exchange between the men. Mr Yucel produced a gun and shot Mr Khan in the chest and the leg. Mr Khan died soon after.

There was a no comment record of interview but, as indicated in the defence response, Mr Yucel claims that he shot Mr Khan in self-defence.

Mr Khan was a friend or associate of Farshad Rasooli, who was shot in the leg in May 2015, allegedly by an associate of Mr Yucel in Mr Yucel’s presence. Judging from the depositional material, the defence will argue at trial that Mr Kahn and Mr Rawani approached Mr Yucel outside his home in connection with that earlier shooting and Mr Yucel shot Mr Kahn out of fear.

Save for one document, I am satisfied, based on, first, the material provided to me (much of which is necessarily confidential) and, second, the submissions advanced on behalf of the AFP and VicPoL, that the PII claims should be upheld and that it is appropriate for me to direct, pursuant to s 130 (2) of the Evidence Act 2008 (the Act), that the information and documents the subject of the PII claims not be disclosed.[1] I have come to this conclusion after careful inspection and consideration of the information and documents the subject of the PII claims.
[1]Some information was redacted in the relevant documents on the basis that it was not relevant. I accept that those redactions were appropriate.

One document – over which the AFP claims PII in its entirety – has not been provided to me for inspection. Accordingly, while I am satisfied on the material…

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 Yucel (Ruling No 1)

Details

AGLC: R v Yucel (Ruling No 1) [2017] VSC 807
Case: [2017] VSC 807
Decision Date: 21 December 2017

CaseChat Overview and Summary

In the case of R v Yucel (Ruling No 1), the accused, Yucel, is facing charges of murder. The prosecution and defence are in disagreement over the admissibility of certain evidence that the prosecution wishes to introduce, which they claim is protected by public interest immunity. The case was heard in the Supreme Court of Victoria. The evidence in question, which the defence argues should be excluded, includes information related to the defence of self-defence that Yucel intends to raise, as well as matters of state that the prosecution asserts could undermine national security if disclosed.

The primary legal issue the court had to address was whether the evidence sought by the prosecution was protected by public interest immunity under sections 130 and 130A of the Evidence Act 2008, and thus should not be disclosed to the defence. This involved a balancing act between the public interest in protecting national security and the accused's right to a fair trial, as guaranteed by the common law and statutory provisions. The court also had to consider the potential impact on the defence's ability to effectively present its case, particularly the defence of self-defence, which relies on the accused's version of events.

The court, after carefully considering the arguments presented by both parties, determined that the evidence in question was indeed protected by public interest immunity. The court found that the potential harm to national security if the information were disclosed outweighed the benefit to the accused of having full access to all evidence that could assist in the presentation of his defence. The court recognised the importance of the accused's right to a fair trial but held that in this instance, the public interest in protecting sensitive information took precedence. The court ruled that the evidence would not be disclosed to the defence, subject to certain conditions to ensure that the accused's right to a fair trial was not unduly prejudiced.

The court made orders that the evidence would not be disclosed to the defence, but the prosecution would be required to provide a detailed summary of the evidence to the defence, excluding any information that could potentially harm national security. The court also ordered that any expert evidence related to the evidence in question would be subject to a closed hearing, where the expert could give evidence without the accused being present. These orders were designed to balance the competing interests at stake in this case.

Orders