R v Yucel (Ruling No 4) - [2018] VSC 62

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, 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…

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 4)

Details

AGLC: R v Yucel (Ruling No 4) [2018] VSC 62
Case: [2018] VSC 62
Decision Date: 16 February 2018

CaseChat Overview and Summary

The case of R v Yucel, Ruling No 4, involved the determination of a question of law reserved for the Court of Appeal by the Supreme Court of Victoria. The respondent, Mr Yucel, was charged with murder. The dispute centred on the application of public interest immunity by the Commonwealth, which sought to withhold certain information from the accused. The Supreme Court was required to decide whether it had the power to reserve a question of law concerning the public interest immunity ruling, given that the Commonwealth was not a party to the proceedings against Mr Yucel. Additionally, the Court needed to determine whether it was appropriate to reserve such a question of law.

The Supreme Court considered the provisions of the Criminal Procedure Act 2009, specifically sections 302, 305, and 337, which pertain to the reservation of questions of law. The Court also referred to previous cases, including R v Yucel (Ruling No 3) [2018] VSC 51, and DPP (Cth) v Galloway (a pseudonym) & Ors [2014] VSCA 272; (2014) 46 VR 809. The Court held that it did indeed have the power to reserve a question of law, despite the Commonwealth not being a party to the proceeding. The Court found it appropriate to reserve the question of law in this instance, as it involved a significant issue of public interest immunity with potential implications for the administration of justice.

In conclusion, the Supreme Court of Victoria reserved the question of law concerning the public interest immunity ruling and referred it to the Court of Appeal. The Court's decision was based on its interpretation of the relevant statutory provisions and the precedents set by previous cases. This ruling ensures that the matter of public interest immunity and its application in criminal proceedings against Mr Yucel will be further examined by the higher court.

Orders