R v Yucel (Ruling No 2)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0121

THE QUEEN

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:

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.

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.

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.

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.

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.

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.

CaseChat Overview and Summary

The case of R v Yucel (Ruling No 2) was heard in the Supreme Court of Victoria. The accused, Yucel, stands charged with the murder of an individual. The central dispute in this case revolves around the admissibility of certain evidence that the defence seeks to introduce in support of a claim of self-defence. Specifically, the defence argues that the evidence, if admitted, would demonstrate that the accused acted in self-defence due to threats that pertain to matters of state. The Crown opposes the admission of this evidence on the grounds of public interest immunity.

The legal issues before the court were whether the evidence in question could be excluded under section 130 of the Evidence Act 2008, which pertains to the protection of information that, if disclosed, could be detrimental to the public interest. Additionally, the court had to consider whether the evidence fell within the scope of section 130A, which allows for the exclusion of evidence if its disclosure would be against the public interest. The defence argued that the information was necessary to substantiate the claim of self-defence, while the Crown contended that the public interest in maintaining the confidentiality of state matters outweighed the need for such disclosure.

In its ruling, the court examined the nature and sensitivity of the evidence sought to be introduced. It determined that the information did indeed pertain to matters of state and that its disclosure could potentially harm national security interests. The court found that the evidence was subject to exclusion under section 130 of the Evidence Act 2008. Furthermore, the court held that the evidence was also covered by section 130A, as its disclosure would indeed be against the public interest. Consequently, the court ruled that the evidence could not be admitted in the trial.

The court's decision effectively precluded the defence from presenting certain evidence that it believed was crucial to its case. This ruling significantly impacts the defence's ability to argue self-defence, potentially influencing the outcome of the trial. The court's final orders did not include a decision on the guilt or innocence of the accused but rather focused on the admissibility of specific evidence, leaving the substantive issues of the case to be addressed in further proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established