| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0121
| THE QUEEN |
| v |
| KAMIL YUCEL |
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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…
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- AGLC
- R v Yucel (Ruling No 1) [2017] VSC 807
- Case
- [2017] VSC 807
- Decision Date
CaseChat Overview and Summary
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
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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