R v Yucel (Ruling No 3)

[2018] VSC 51

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, 8 and 12 February 2018
DATE OF RULING:	13 February 2018
CASE MAY BE CITED AS:	R v Yucel (Ruling No 3)
MEDIUM NEUTRAL CITATION:	[2018] VSC 51	First revision:  15 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	Mr P Morrissey SC 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

1. This ruling, which relates to a public interest immunity (PII) claim by the Commonwealth must be read in conjunction with R v Yucel(Ruling No 1)[1] and R v Yucel(Ruling No 2).[2]

   [1][2017] VSC 807.

   [2][2018] VSC 27.

1. Ruling No 1 is relevant because there I set out the principles that have informed my application of s 130 of the Evidence Act 2008 to the information the subject of this ruling.

1. In Ruling No 2, after due consideration of a confidential affidavit (CA1) and confidential written submissions (CWS1) supplied to me by the Commonwealth, I upheld the Commonwealth’s PII claim in relation to all but three paragraphs of a draft Intelligence Bulletin headed ‘Fatal Shooting of Rahat Khan on 12 July 2016’ and dated 27 July 2016. The information the subject of this ruling is those three paragraphs (the Information).

1. In respect of the Information, the Commonwealth asked me to revisit Ruling No 2 in the light of further material which was to be supplied in the form of a supplementary confidential affidavit (CA2). Pursuant to my grant of leave, CA2 was to be confined to material based on new facts and circumstances that had arisen on or after 29 January 2018, which was the date that CA1 was filed.

1. Having considered CA2, and after a careful re-reading of CA1, I indicated yesterday morning that I was still not minded to uphold the Commonwealth’s PII claim regarding the Information. I said the following in open court:

On 7 February 2018, Mr Livermore (for the Commonwealth), asked me to revisit and reconsider R v Yucel (Ruling No 2), which I published on 6 February 2018. On 8 February, pursuant to a grant of leave, the Commonwealth filed a supplementary confidential affidavit. I have revisited my ruling in the light of the supplementary confidential affidavit and have carefully re‑read the original confidential affidavit, but I remain of the view expressed in Ruling No 2 that the public interest in disclosure of what I'll just call "the information" outweighs the public interest in preserving its secrecy or confidentiality. Indeed, I consider that the supplementary affidavit lends support for the conclusion I reached in Ruling No 2. I am necessarily constrained in what I can say by way of explanation but I can say this: in the first sentence of paragraph [73] of the original affidavit, up to and including the second comma, the Commonwealth makes what I consider to be a telling concession. As a consequence, I do not think there is a rational basis for the argument that is made in the original affidavit in the balance of paragraph [73] and in paragraph [74]. Accordingly, I do not think there is a plausible foundation for the Commonwealth's primary concern, which is articulated in the last sentence of paragraph [74] and permeates both confidential affidavits. That's the first issue.

The second issue is this, and it concerns whether there should be leave to the Commonwealth to adduce further material. …I will grant leave to the Commonwealth to file any additional confidential material. I will not limit that material to material based on new facts and circumstances arising on or after 29 January 2018. It is to be filed on or before 9am on 13 February, so tomorrow morning.

1. This morning, in accordance with my grant of leave, the Commonwealth filed a third confidential affidavit (CA3) and further confidential written submissions (CWS2) in support of its PII claim regarding the Information. I have given careful consideration to this new material, and reviewed the old material (CA1, CA2 and CWS1) in the light of it.

Analysis

1. My view remains the same in relation to the Information and I now direct that the Information be supplied to the defence. I am still constrained in what I can say about my reasons for ordering disclosure of the information but I will say this.

1. At [13] of CA3, in the second sentence, there is, in my view, another telling concession by the Commonwealth. It supports the line of reasoning on which my conclusion is founded. That line of reasoning is in part articulated by the Commonwealth in [12] of CA3. I say in part because [12] of CA3 does not take into account two other relevant considerations, the first of which is disclosed, for example, by the fifth sentence of [11] of CA2. That sentence, to my mind, describes a state of affairs[3] which supports rather than undermines my line of reasoning. So too does the Commonwealth’s public and longstanding commitment in respect of the matter which is mentioned in the last two words of the heading above [5] of CA2.

   [3]See also the first sentence of [19] of CA3 up to the word “and” where it first appears.

1. I reject the submission at [10] and [11] of the CWS2. I am not in a position where I can set out why I consider that the Information could be of substantial assistance to the defence, as I said in Ruling No 2 at [4], but I note that [10] and [11] of CWS2 do not grapple with the import of the last sentence of the second last of the three paragraphs constituting the Information.