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

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

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.

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.

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).

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.

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…

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 3)

Details

AGLC: R v Yucel (Ruling No 3) [2018] VSC 51
Case: [2018] VSC 51
Decision Date: 13 February 2018

CaseChat Overview and Summary

The court heard the case of R v Yucel, where the defendant was charged with the murder of an individual. The accused claimed self-defence as their defence. The case was heard in the Supreme Court of the state. The dispute centred around the admissibility of certain evidence that the defence sought to present. This evidence was crucial to supporting the accused's claim of self-defence. The prosecution objected on the grounds that the evidence was protected by public interest immunity.

The court was required to decide whether the evidence in question should be admitted, considering the provisions of the Evidence Act 2008. Specifically, the court had to consider whether the evidence was subject to public interest immunity under sections 130 and 130A of the Act. The defence argued that the evidence was necessary to establish the accused's defence of self-defence. The prosecution contended that the evidence was protected by public interest immunity, and its disclosure would harm the public interest.

The court examined the nature of the evidence and the potential harm that might result from its disclosure. It considered the public interest in the administration of justice and the protection of national security. The court ultimately concluded that the evidence was subject to public interest immunity and could not be disclosed. The court found that the potential harm to the public interest outweighed the need for the evidence to establish the accused's defence of self-defence. As a result, the evidence was excluded from the trial.

The final orders of the court were that the evidence in question would not be admitted into evidence in the trial. This decision meant that the accused could not rely on the excluded evidence to support their defence of self-defence. The court's ruling was based on the balance between the public interest in the administration of justice and the protection of national security. The trial proceeded without the excluded evidence, and the accused was found guilty of murder.

Orders