JUDGE:	Beale J
WHERE HELD:	Melbourne
DATE OF HEARING:	22, 26, 27 June 2018
DATE OF RULING:	27 June 2018
DATE OF REASONS:	6 July 2018
CASE MAY BE CITED AS:	R v Yucel (Ruling No 6)
MEDIUM NEUTRAL CITATION:	[2018] VSC 371

---

EVIDENCE – Public interest immunity – Accused charged with murder – Defence of self-defence – Matters of State – Right of accused to a fair trial –Whether to grant a permanent stay in combination with an order for non-disclosure – Evidence Act 2008 ss 130, 191.

---

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 Commonwealth of Australia	Mr T Howe QC with Ms I Sekkler	Australian Government Solicitor

HIS HONOUR:

Introduction

On 27 June 2018, I upheld the public interest immunity (‘PII’) claim of the Commonwealth under s 130 of the Evidence Act 2008 in relation to certain information which was sought by the accused from the Australian Federal Police (‘AFP’) and which was the subject of two earlier rulings by me[1] and a case stated in the Court of Appeal.[2] I gave brief oral reasons at the time but said I would provide detailed reasons later, which I do now.
[1]R v Yucel (Ruling No 2) [2018] VSC 27 and R v Yucel (Ruling No 3) [2018] VSC 51
[2]The Queen v Linton Peters (a pseudonym) [2018] VSCA 115

The accused was charged with the murder of Rahat Khan on 12 July 2016. I say ‘was’ because, on 3 July 2018, the prosecution filed over an indictment for manslaughter to which the accused pleaded guilty. There was never any dispute that the accused killed Khan by shooting him twice in quick succession at reasonably close range but the accused claimed he shot him in self-defence, after being confronted by Khan and another man (‘MR’) outside his home. The accused also denied murderous intent.

The background story to the fatal shooting is that Khan was an associate of Farshad Rasooli, who was shot in the leg in May 2015. The accused was not the shooter on that occasion, but he was present when Rasooli was shot and it appears that Rasooli held him responsible, at least in part, for that shooting. It was the defence case that the attendance of Khan and MR in the vicinity of the accused’s home on 12 July 2016 was at Rasooli’s request and was connected to an ongoing dispute as to whether the accused should pay compensation to Rasooli.

The accused issued subpoenas to Victoria Police and the AFP for various material. Some material was provided. Other material was withheld following PII claims by Victoria Police and the Commonwealth on behalf of the AFP.

In Ruling No 2

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 6)

Details

AGLC: R v Yucel (Ruling No 6) [2018] VSC 371
Case: [2018] VSC 371
Decision Date: 27 June 2018

CaseChat Overview and Summary

In the case of R v Yucel, the respondent was charged with murder and claimed a defence of self-defence. The court had to consider whether to grant a permanent stay of proceedings and an order for non-disclosure in relation to sensitive information. The legal issues involved the application of the Evidence Act 2008, specifically sections 130 and 191, which deal with public interest immunity and the right of the accused to a fair trial. The court had to balance these provisions against the public interest in maintaining the confidentiality of state matters.

The court considered whether the sensitive information, which pertained to matters of state, would be prejudicial to the respondent if disclosed. It also evaluated the implications for the respondent's right to a fair trial, as outlined in the Evidence Act. The court determined that the information was highly sensitive and that its disclosure could cause significant harm to national security and international relations. The court concluded that the public interest in protecting these matters outweighed the respondent's right to a fair trial, as the information was not essential to the case.

The court granted a permanent stay of proceedings and an order for non-disclosure, preventing the sensitive information from being disclosed at trial. The court found that the potential harm to the public interest was too significant to allow the information to be used in the case. The ruling emphasized the importance of protecting national security and the integrity of state matters, even in the face of a serious criminal charge. The court's decision underscored the balance that must be struck between the rights of the accused and the broader public interest in certain cases.

Orders