R v Yucel (Ruling No 4)
[2018] VSC 62
•16 February 2018
| 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, 12 and 15 February 2018 |
DATE OF RULING: | 16 February 2018 |
CASE MAY BE CITED AS: | R v Yucel (Ruling No 4) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 62 |
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CRIMINAL LAW – Criminal Procedure – Whether to reserve a question of law for the Court of Appeal in respect of a public interest immunity ruling requiring the Commonwealth to disclose certain information to an accused charged with murder – Whether Court has power to reserve question of law where Court has ruled on the public interest immunity claim and where the Commonwealth is not a party to the proceeding against the accused – Whether appropriate to reserve question of law – Question of law reserved – Criminal Procedure Act 2009 ss 302, 305, 337 – R v Yucel (Ruling No 3) [2018] VSC 51 – DPP (Cth) vGalloway (a pseudonym) & Ors [2014] VSCA 272; (2014) 46 VR 809.
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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 Commonwealth | Mr G Livermore | Australian Government Solicitors Office |
HIS HONOUR:
Introduction
In R v Yucel (Ruling No 3),[1] handed down on 13 February 2018, I rejected the Commonwealth’s claim of public interest immunity (PII) in respect of the last three paragraphs[2] on page 3 of a draft Intelligence Bulletin titled ‘Fatal Shooting of Rahat Khan on 12 July 2016 and dated 27 July 2016 (the Information). I ordered the Commonwealth to disclose the Information to the defence in the trial of Mr Yucel on a charge of murder. The Commonwealth sought a stay of my order to preserve their rights of appeal. Without objection, I stayed my order until further order.
[1]This ruling should be read in conjunction with R v Yucel (Ruling No 1) [2017] VSC 807, R v Yucel (Ruling No 2) [2018] VSC 27 and R v Yucel (Ruling No 3) [2018] VSC 51.
[2]Including footnotes 5 & 6.
The Commonwealth asked me to reserve a question of law under s 302 of the Criminal Procedure Act 2009 (the Act) as to the correctness of my decision in R vYucel (Ruling No 3). The question of law which the Commonwealth proposed was:
whether on the material filed before [me] it was correct to rule that the public interest in disclosure of the subject three paragraphs outweighed the public interest in non‑disclosure of those three paragraphs.
The defence opposed the application,[3] submitting that I have no power to reserve a question of law under s 302 of the Act. In written submissions, the defence relied on the fact the Commonwealth is not a party to the criminal proceeding against Mr Yucel and the fact that I have already made a ruling on the Commonwealth’s PII claim.[4] The defence also submitted that, even if I had the power, it was not in the interests of justice for me to reserve a question of law.
[3]But not vigorously once the Commonwealth indicated that, if I declined to reserve a question of law under s 302 of the Act, it would bring proceedings under s 304 of the Act for an order by the Court of Appeal that I reserve a question of law.
[4]The defence contended that, consequently, no question ‘arises’.
On the 15 February 2018, I ruled that I had power to reserve a question of law under s 302 of the Act and that it was appropriate to do so on my own motion. I reserved a question of law in the terms set out below. I said I would give written reasons later and I do so now.
Legislation
Turning to the relevant statutory provisions, s 302 of the Act, which is headed ‘Reservation of question of law’, relevantly provides:
(1)This section applies to a proceeding in…the Trial Division of the Supreme Court for the prosecution of an indictable offence.
(2)In a proceeding referred to in subsection (1), if a question of law arises before …the trial, the court may reserve the question for determination by the Court of Appeal if the court is satisfied that it is in the interests of justice to do so, having regard to—
(a)the extent of any disruption or delay to the trial process that may arise if the question of law is reserved; and
(b) whether the determination of the question of law may—
(i) render the trial unnecessary; or
(ii) substantially reduce the time required for the trial; or
(iii)resolve a novel question of law that is necessary for the proper conduct of the trial; or
(iv)reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial.
The question of law – in short, whether it was correct for me to make the PII ruling I did in R v Yucel(Ruling No 3) – has arisen ‘before the trial’. No jury has been empanelled in this case. Section 210 of the Act, which is headed ‘When trial commences’, relevantly provides:
(1)A trial commences when the accused pleads not guilty on arraignment in the presence of the jury panel in accordance with section 217.
Section 305 of the Act, which is headed ‘Case to be stated if question of law reserved’, relevantly provides:
(1)If a court reserves a question of law under section 302…it must state a case, setting out the question and the circumstances in which the question has arisen.
(2)The court must sign the case stated and transmit it within a reasonable time to the Court of Appeal.
(3)The Court of Appeal may return a case stated transmitted to it under subsection (2) for amendment and the court that stated the case must amend it as required.
I will return to the requirement to ‘state a case’ in my concluding remarks.
Section 337 of the Act, which is headed ‘Court may act on application or on own motion,’ relevantly provides:
(1)Unless the context otherwise requires, a power or discretion conferred on a court by or under this Act may be exercised by the court on the application of a party or on its own motion.
Analysis
The natural meaning of the words in s 302 seems to me to extend to a scenario such as this one. A question of law has arisen.[5] The fact that I have made a ruling on the issue is not problematic. In DPP (Cth) vGalloway (a pseudonym) & Ors,[6] the trial judge made a ruling on a question of client legal privilege but that did not prevent the Court of Appeal from entertaining a proceeding under s 302.
[5]It may be a mixed question of law and fact but that does not rob it of its character as a question of law. The defence have not submitted otherwise.
[6][2014] VSCA 272; (2014) 46 VR 809.
It is not necessary for me to determine whether or not the Commonwealth is a party since I can reserve a question of law on my own motion, pursuant to s 302 of the Act, read in conjunction with s 337.
I turn then to consider the appropriateness of exercising the power to reserve, having regard to the considerations mentioned in s 302. The ultimate test is whether it is in the interests of justice to reserve the question of law. Section 302(2) requires that I have regard to certain matters in applying that test.
First, there is the issue of delay and disruption to the trial to consider. The prosecution and defence agreed that it would not be appropriate to proceed with the trial until the question of law has been answered by the Court of Appeal. But I was informed that the Court of Appeal could hear the matter within a matter of weeks, so the delay, at least in relation to the appeal process, may not be great. As mentioned, no jury has been empanelled in this case. This minimises the disruption that will be caused by the reservation of a question of law. Whether the trial will be able to resume in Term One once the appeal is determined is another matter: it is possible that the trial will have to be adjourned because of other court commitments. I am told that if a new trial date has to be set it could be sometime in early June. That is not an inordinate delay.
Next, might the trial be rendered unnecessary by the Court of Appeal’s determination of the question of law? If the Court of Appeal confirms my ruling, it is not inconceivable that discussions may take place between the Commonwealth and State Directors of Public Prosecutions as to whether the trial against Mr Yucel should proceed. The State DPP may consider that the introduction of the information into evidence, by one route or another, would so diminish the prospects of securing a conviction that the public interest is better served by discontinuing the prosecution and preserving the confidentiality of the Information. There is necessarily a degree of speculation involved here, but I do not think I should ignore this possibility.
Next, will the Court of Appeal be resolving a novel question of law? No, the Court of Appeal will be applying settled principles of law in relation to PII.
Next, will the determination of the question of law reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial? It is difficult to see how the Court of Appeal’s determination of the question of law, whether it affirms or overturns Ruling No 3, could have any bearing on the outcome of a conviction appeal.
Having had regard to these mandatory considerations, I come back to the ultimate test, namely, whether it is in the interests of justice to reserve the question of law.
I consider it is in the interests of justice to reserve a question of law under s 302 principally because of what is at stake and the fact that the PII claim is not devoid of merit. If I was mistaken in my reasoning in R v Yucel (Ruling No 3) as to the legitimacy of the Commonwealth’s primary concern, then disclosure of the Information may have the consequences suggested by the Commonwealth. Even though the question of law which I have reserved is a narrow one, that does not mean it is unimportant. As regards merit, the Commonwealth argued for non-disclosure of the information on a number of bases. Whilst I may have strongly rejected its primary argument,[7] that is not to say that its other arguments are devoid of merit, even though they did not persuade me to uphold the Commonwealth’s PII claim.
[7]See, for example, [73] and [74] of its first confidential affidavit.
Question of law reserved for the Court of Appeal
As mentioned, the question of law which the Commonwealth wanted me to reserve for the Court of Appeal read:
whether on the material filed before [me] it was correct to rule that the public interest in disclosure of the subject three paragraphs outweighed the public interest in non‑disclosure of those three paragraphs.
The question of law suggested by the Commonwealth does not seem to me to reflect the terms of s 130(1) of the Evidence Act 2008[8] as modified by s 131A of that Act.
[8] Section 130 of the Evidence Act2008 relevantly provides:
(1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.
I needed to be satisfied that the public interest in non-disclosure outweighed the public interest in disclosure, not the other way around.
Accordingly, I reserved a question of law in these terms:
(a)On ‘the material filed before the Court’ was the Court correct to find in R v Yucel (Ruling No 3) [2018] VSC 51 that the public interest in non- disclosure of ‘the Information’ did not outweigh the public interest in disclosure of ‘the Information’?
(b)‘[T]he Information’ means the last 3 paragraphs (including footnotes 5 and 6 ) on page 3 of a draft Intelligence Bulletin titled ‘Fatal Shooting of Rahat Khan on 12 July 2016’ and dated 27 July 2016.
(c)‘[T]he material filed before the Court’ means:
(i) The Depositions;
(ii) The Prosecution Summary of Opening dated 13 September 2017;
(iii) The Defence Response dated 27 September 2017;
(iv) The Commonwealth’s written submissions (confidential and non-confidential) dated 4 December 2017, 29 January 2018, 8 February 2018 and 13 February 2018;
(v) The Commonwealth’s confidential affidavits dated 28 November 2017, 8 February 2018 and 13 February 2018;
(vi) The Defence’s written submissions dated 6 December 2017, 9 December 2017 and 12 February 2018; and
(vii) The material filed by the Chief Commissioner of Victoria Police in response to the Defence subpoena dated 12 September 2017.
Conclusion
Pursuant to s 305 of the Act, it is necessary for me to state a case which includes a description of the circumstances in which the question of law has arisen. Though that may be self-evident upon a reading of my three earlier rulings, it is appropriate for the Commonwealth especially to have input into how the case is stated and so I have directed the Commonwealth today to file and serve a draft ‘case’ by 5pm on Monday 19 February 2018. I have invited the defence to respond by 5pm on Tuesday 20 February 2018.
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