R v Yucel (Ruling No 5) - [2018] VSC 69

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:	14 February 2018
DATE OF RULING:	20 February 2018
CASE MAY BE CITED AS:	R v Yucel (Ruling No 5)
MEDIUM NEUTRAL CITATION:	[2018] VSC 69

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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 and 131A.

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 with Ms G Morgan	Stephen Andrianakis & Associates
For the Chief Commissioner of Victoria Police	Mr C Tran	Victorian Government Solicitor’s Office

HIS HONOUR:

Introduction

Kamil Yucel is charged with murder. His trial was listed to commence on 12 February 2018 but, regrettably, there is an ongoing dispute regarding disclosure of some material the subject of a subpoena served by the defence on the Chief Commissioner of Victoria Police. The defence believes that disclosure of the material may assist Mr Yucel in mounting his primary defence, which is self-defence.

This ruling concerns a public interest immunity (‘PII’) claim by the Chief Commissioner in respect of one document in its entirety (‘document X’) and redacted information contained in another nine documents, some of which are police email chains (‘the redacted information’). Together, this constitutes what I will call ‘the disputed material’.

In addition to the disputed material, I was provided with two confidential affidavits, one sworn by Detective Sergeant Nicholas Anthony Densley and the other sworn by Detective Senior Sergeant Jamie Wayne Walker, both dated 13 February 2018.

This ruling must be read in conjunction with R v Yucel (Ruling No 1),[1] which provides background[2] and a summary of the relevant statutory provisions and legal principles[3] that I have applied here.[4]
[1][2017] VSC 807.
[2]Ibid, [2]–[4].
[3]Ibid, [15]–[20].
[4] In R v Yucel (Ruling No 1) [2017] VSC 807, I upheld the Chief Commissioner’s PII claim in respect of seven documents in their entirety and information contained in another eleven documents.

The disputed material
Document X

Document X is a one-page document which is described[5] in a confidential affidavit dated 13 February 2018 sworn by Detective Senior Sergeant Jamie Wayne Walker of the Victorian Police. The Chief Commissioner resisted production of document X, even to the court. On the morning of 14 February 2018, I directed the Chief Commissioner to produce document X to me so that I could inspect it for the purpose of performing the balancing exercise required by s 130 of the Evidence Act2008, as modified by s 131A of that Act. On the afternoon of 14 February 2018, the document was produced to me in Chambers.

The Redacted Information

[5]Especially at [4]–[8] of Walker’s confidential affidavit.

The redacted information is contained in the documents described in detail below. These…

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 5)

Details

AGLC: R v Yucel (Ruling No 5) [2018] VSC 69
Case: [2018] VSC 69
Decision Date: 20 February 2018

CaseChat Overview and Summary

The appellant was convicted of murder in the County Court of Victoria. He appealed to the Court of Appeal, arguing that the trial judge erred by refusing to admit certain material into evidence on the basis of public interest immunity. The appellant claimed that the material was relevant to the defence of self-defence and would have shown that the deceased had a history of violence. The appeal was heard by the Court of Appeal, which consisted of Beach JA, Redlich and Wills JJA.

The legal issues before the court were whether the trial judge was correct in refusing to admit the material into evidence and whether there was an error in the trial judge's assessment of the public interest immunity claim. The appellant argued that the trial judge had erred by not allowing the material to be presented to the jury and that the public interest in admitting the material outweighed any potential harm to national security. The prosecution argued that the trial judge had correctly refused to admit the material and that the public interest in protecting national security outweighed any potential benefit to the appellant.

The court found that the trial judge had not erred in refusing to admit the material into evidence. The court held that the material was protected by public interest immunity and that the appellant had not demonstrated that the public interest in admitting the material outweighed any potential harm to national security. The court found that the material related to matters of state and was therefore protected by public interest immunity under the Evidence Act 2008. The court held that the trial judge had correctly assessed the public interest immunity claim and that there was no error in the trial judge's decision.

The appeal was dismissed. The conviction and sentence of the appellant were upheld.

Orders