R v Yucel (Ruling No 5)
[2018] VSC 69
•20 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: | 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.
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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 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 documents were helpfully provided to the Court in redacted and un-redacted form. They are paginated and the page references after the description of each document below are to those pages. The documents containing the redacted information are:
i. A briefing note of 5 May 2015 from DSC Doyle to the Officer in Charge re “Op Polysulfide – Non fatal shooting outside 1/15 Motto Dr, Coolaroo (Hume Islamic Youth Centre)” (pp 1–5);
ii. An email of 1 October 2015 from Julia Doyle to Kevin Squires re “FW: Rasooli Request.docx” forwarding an email of 1 October 2015 from Stephen Clark to Eduard Logonder, cc Julia Doyle attaching “Rasooli Request.docx” (pp 6–9);
iii. An email of 28 November 2017 from Julia Doyle to Kevin Squires re “FW: Farshad Rasooli” forwarding an email of 16 May 2015 from Scott Leach to Tim McKerracher, cc various persons re “Farshad Rasooli” and an email of 16 May 2015 from Tim McKerracher to Scott Leach and Julia Doyle re “FW: Farshad Rasooli” and an email of 16 May 2015 from Eduard Logonder to Tim McKerracher re “Farshad Raooli” (pp 10–11);
iv. An email of 28 November 2017 from Julia Doyle to Kevin Squires re “Investigation Polysulfide” forwarding an email of 26 May 2015 from Scott Leach to various persons re “Investigation Polysulfide”(pp 12–13);
v. An email of 9 October 2015 from Scott Leach to Mark Burnett re “FW: Information” and an email of 9 October 2015 from Ian Milner to Scott Leach re “FW: Information” and an email of 9 October 2015 from Brian Curley to Ian Milner re “FW: Information” and an email of 9 October 2015 from Gaetano Ilardi to Brian Curley and Jason Behan re “FW: Information” and an email of 8 October 2015 from Gaetano Ilardi to Brian Curley re “Information” (pp 14–16);
vi. An email of 12 October 2015 from Scott Leach to various persons re “FW: VicPol Op Polysulfide” and an email of 12 October 2015 from Mark McKiernan to Scott Leach and Mathew Thorp re “FW: VicPol Op Polysulfide” and an email of 12 October from Adam Stephens to various persons re “VicPol Op Polysulfide” and an email of 9 October 2015 from Sarah Jess to Adam Stephens and Mark McKiernan re “VicPol Op Polysulfide” and an email of 9 October 2015 from Adam Stephens to TID – Supervisors re “VicPol Op Polysulfide” (pp 17-21);
vii. An email of 12 October 2015 from Scott Leach to various persons re “FW: VicPol Op Polysulfide” and an email of 12 October 2015 from Mark McKiernan to Scott Leach and Mathew Thorp re “FW: ETS – Protected VicPol Op Polysulfide” and an email of 12 October from Adam Stephens to Mark McKiernan and Shaun ODonnell re “FW: ETS – Protected VicPol Op Polysulfide” and an email of 12 October from Adam Stephens to Adam Stephens (sic) re “FW: ETS – Protected VicPol Op Polysulfide” (pp 22–23);
viii. An email of 9 October 2015 from Daniel Bonnici to various persons attaching “One Page SW Action Plan.doc” (pp 24–27); and
ix. An email of 9 October 2015 from Kevin Squires to Scott Leach re “Emailing: Overview.docx”(pp 28–29).
Conclusion
Having inspected document X, I am satisfied that it relates to matters of state and that the public interest in non-disclosure outweighs the public interest in disclosure to the defence. In reaching that conclusion I have had regard, in particular, to the scope of the material already disclosed to the defence in a document described in [5] of the confidential affidavit of Detective Senior Sergeant Jamie Wayne Walker dated 13 February 2018.
Having inspected the redacted Information, I am also satisfied that it relates to matters of state and that the public interest in non-disclosure outweighs the public interest in disclosure to the defence.
I consequently direct, pursuant to s 130(2) of the Evidence Act 2008, that the disputed material not be disclosed.
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