R v Yucel (Ruling No 2)

[2018] VSC 27

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:	6 February 2018
CASE MAY BE CITED AS:	R v Yucel (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2018] VSC 27	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:

1. On 21 December 2017, I published my ruling in relation to certain public interest immunity (‘PII’) claims made by the Chief Commissioner of Victoria Police and by the Commonwealth.[1]

   [1]R v Yucel (Ruling No 1) [2017] VSC 807.

1. I said the following at [6] of that ruling:

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 that has been provided that the information contained in that document is likely to relate to a ‘matter of state’, I am not yet in a position to undertake the balancing exercise required by s 130(5) of the Act. Pursuant to s 130 (3) of the Act, I direct that the document in question, and any confidential supporting material, be provided to my associate at midday on Monday 29 January 2018. I will provide my ruling in respect of that document as soon as possible thereafter.

1. The document in question – a draft Intelligence Bulletin headed ‘Fatal Shooting of Rahat Khan on 12 July 2016’ and dated 27 July 2016 (‘the document’) – was duly provided to me in accordance with my direction, along with a confidential affidavit and a confidential submission by counsel for the Commonwealth.  

1. I am satisfied on the confidential material provided to me that the document relates to a matter of state,[2] but, in relation to the information contained in the last three paragraphs on page 3 of the document (‘the information’),[3] I am not satisfied that the public interest in the disclosure of the information to the defence is outweighed by the public interest in preserving the confidentiality of that information. In my view, the information could be of significant assistance to the defence and its disclosure is not likely to significantly undermine the competing public interest for which the Commonwealth contends.

   [2]I will accede to the Commonwealth’s request not to identify which paragraphs of s 130(4) of the Evidence Act 2008 are enlivened.

   [3]For clarity’s sake, the first of these paragraphs commences with the word “Around” and the last paragraph concludes with the word “Yucel”. The information to be disclosed pursuant to this ruling includes footnotes 5 and 6 of the document.

1. I will not go into any more detail in this ruling about the nature of the information in case the Commonwealth wishes to challenge this ruling.

1. As for the balance of the document, I am satisfied that the PII claim should be upheld and that it is appropriate for me to direct, pursuant to s 130 (2) of the Evidence Act 2008, that it not be disclosed.