R v Yucel (Ruling No 6)

[2018] VSC 371

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:	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

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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.

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

HIS HONOUR:

Introduction

1. 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

1. 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.

1. 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.

1. 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.

1. In Ruling No 2,[3] I rejected the Commonwealth’s claim of PII in relation to certain information contained in a draft Intelligence Bulletin headed ‘Fatal Shooting of Rahat Khan on 12 July 2016’ dated 27 July 2016 (‘the document’). The relevant information appeared in the last three paragraphs on page three of the document (‘the Information’).

   [3][2018] VSC 27.

1. In Ruling No 3,[4] following receipt of further affidavit material and submissions from the Commonwealth, I revisited but confirmed Ruling No 2.

   [4][2018] VSC 51.

1. On the application of the Commonwealth, I stayed my order for disclosure of the Information to the accused. I stated a case for the Court of Appeal, which found that while it was open to me to find that disclosure of the Information could be of significant assistance to the accused in the conduct of his defence, it was not open to me to find that the disclosure of the Information is not likely to significantly undermine the competing public interest for which the Commonwealth contends.

1. The Court of Appeal directed me to undertake the s 130 balancing exercise afresh.

Court of Appeal’s reasons

1. A number of passages from the Court of Appeal’s published reasons[5] are particularly noteworthy in connection with this ruling.

   [5]The Court of Appeal also provided confidential reasons to the Commonwealth and me.

1. The first relates to the assessment of the risk to the public interest from disclosure:

[48]…the gravity of the harm identified in the material filed on behalf of the Commonwealth is such that a real risk of the eventuation of that harm should be regarded as significant.[6] The facts giving rise to the unacceptable risk must themselves be established on the balance of probabilities[7] but not the prospect of the eventuation of the risk itself.

[49] In our view, the affidavit material substantiated a real risk of the eventuation of grave harm to the public interest asserted on behalf of the Commonwealth. In turn, it was not open (on the material referred to in the case stated) to find that that interest is unlikely to be significantly undermined by the disclosure of the Information. (Italics added)

[6]Conway v Rimmer [1968] AC 910, 940 referred to with approval by Gibbs ACJ in Sankey v Whitlam (1978) 142 CLR 1, 39; Rogers v Home Secretary [1973] AC 388, 410–11 (Lord Reid); Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1973] AC 405, 434; Burmah Oil Co Ltd v Bank ofEngland [1980] AC 1090, 1143 (Lord Scarman); The Australian Statistician v Leighton Contractors Pty Ltd [2008] 36 WAR 83, 93 [46] (Steytler P, McLure JA and Newnes AJA); Ryan v State of Victoria [2015] VSCA 353 [158] (Tate, Santamaria and Ferguson JJA); Kamasee v Commonwealth of Australia [No 4] [2016] VSC 492 [11]–[14]; AS v Minister for Immigration and Border Protection [2017] VSC 162 [40(b)] (Daly AsJ).

[7]Evidence Act 2008, s 142.

1. In relation to whether disclosure of the Information could significantly assist the accused in the conduct of his defence, and whether the disclosure of the Information could be regarded as raising an issue of the public interest in a fair trial, the court said:

[52] In our view, it was open to conclude that the Information adds materially to the information otherwise available to the accused as tending to raise a case of self-defence. We cannot elaborate the basis of this conclusion further in open reasons without revealing the substance of the Information itself.

[53] In turn, it is in our view that the Information could be regarded as meeting the test postulated in Jarvie v Magistrates Court of Victoria at Brunswick[8] as giving rise to a public interest in the applicant’s fair trial. Namely, whether there is good reason to think that the disclosure of the Information may be of substantial assistance to the accused in meeting the case against him.

[54] For completeness we should add however that as the Commonwealth submitted, and the accused accepted, the proper application of this test requires more than a mere possibility. As Brooking J himself made clear in Jarvie, a mere speculative possibility of assistance is not sufficient.[9] (Italics added)

[8][1995] 1 VR 84 (‘Jarvie’); R v Roberts (2004) 9 VR 295, 337 [103].

[9][1995] 1 VR 84, 89–90.

1. In directing me to revisit the s 130 balancing exercise, the Court of Appeal made the following remarks:

[55] It will be necessary for the trial judge to re-evaluate and balance the public interests he has identified as inherent in the Information. The answers that we have given to the questions reserved by the case stated will be relevant to that re-evaluation but the exercise will have to be undertaken anew and may not be able to be finally resolved on an ex parte basis.

…

[58] We would also wish to emphasise that our answers to the questions reserved should not be taken to indicate any concluded view as to what is necessary for a fair trial in this case.

[59] Further, the consequences of the re-evaluation made by the trial judge under s 130 may not be binary in the sense that the information is either disclosed to, or withheld from, the defence for the purposes of the trial. It may require consideration of procedural alternatives to the provision of the Information in its current form or at all. The conduct and outcome of the re-evaluation must be a matter for the trial judge. It will require care to ensure procedural fairness is accorded to any party who may be adversely affected by its outcome. (Italics added)

Additional material received since the Court of Appeal’s decision.

1. On 22 June 2018, the Commonwealth, no doubt mindful of the Court of Appeal’s observations (especially at [59]), provided the Court and the parties with a summary in the following terms:

The AFP acknowledges that there was dispute and conflict between the accused, Farshad Rasooli and associates of Farshad Rasooli arising from (i) the shooting of Farshad Rasooli in May 2015 and (ii) Farshad Rasooli's determination to receive compensation from the accused for the shooting, which continued to escalate and came to a head immediately prior to the shooting, and which included threats of retribution on the part of Farshad Rasooli. The AFP does not know the precise form or severity of the threats of retribution, but it likely included threats of violence.

1. This summary, which was based on the Information, was put forward as a means by which both the public interest in a fair trial and the public interest in non-disclosure of the Information could be safeguarded.

1. The accused indicated that he wanted this summary to be incorporated in an agreement of facts with the prosecution pursuant to s 191 of the Evidence Act 2008. The prosecution eventually acceded to this proposal.

1. In my view, such an agreement of facts, which a jury would have been directed to regard as established facts, would have provided a proper basis for the jury drawing the inferences that it might have drawn if the Information had been adduced in evidence. More particularly, a jury could have inferred from the agreement of facts, when considered in combination with other evidence which showed an association between Rasooli and Khan (including call charge records for the day of the fatal shooting itself), that it was at least a reasonable possibility that Khan and MR confronted the accused in a hostile manner on behalf of Rasooli immediately prior to the fatal shooting.

1. The accused nonetheless continued to oppose the Commonwealth’s application for an order directing non-disclosure of the Information. In the event that I was minded to make the order sought, the accused submitted that I should permanently stay the trial on the basis that the accused could not receive a fair trial without the disclosure of the Information.   

Mandatory Statutory Considerations

1. Section 130(5) of the Evidence Act 2008 sets out an inclusive list of considerations which must be taken into account in balancing the competing public interests.

1. Regarding (a), I considered the Information to be important to the accused. As previously discussed, if disclosed it was likely to substantially assist the accused in the conduct of his defence to the charge of murder.

1. Regarding (b), it was the accused who sought disclosure.

1. Regarding (c), the accused was being prosecuted for murder. The stakes for him could not have been higher.

1. I pause to comment that the above three considerations militated strongly in favour of disclosure.

1. Regarding (d), I accepted the Court of Appeal’s view that, if disclosure was ordered, there was a significant risk that grave harm would be done to the public interest for which the Commonwealth contended. Even if I closed the court to the public, and prohibited publication of the Information, I considered that that risk would remain significant.

1. Regarding (e), the Information had not already been published. Its secrecy was jealously guarded.

1. Regarding (f), if I ordered non-disclosure in circumstances where there was no agreement of facts as referred to above, it was difficult to see how the accused could receive a fair trial. To my mind, no directions that I could give the jury would have made up for the absence of the Information. Prior to the parties settling the agreement of facts, this inclined me to the view that I could only make an order for non-disclosure if it was combined with an order permanently staying the accused’s trial. Of course, a permanent stay should only be granted in extreme and rare circumstances and so I gave careful consideration to the principles which must inform the decision whether or not to grant a permanent stay. I noted in particular the observation of Mason CJ and Toohey J in their joint judgment in Glennon:

…a permanent stay will only be ordered in an extreme case[10] and there must be a fundamental defect ‘of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences’.[11]

[10]Jagov District Court (NSW) (1989) 168 CLR 23, 34.

[11]Barton v The Queen (1980) 147 CLR 75, 111 per Wilson J. See also Kaye J’s summary of legal principles regarding permanent stay applications in R vMokbel [2009] VSC 342 at [82]-[105]. See also Peek J’s summary in Thompkins v Medical Board of Australia [2018] SASC 72 at [31] to [48].

1. But there was an agreement of fact, and, on the strength of that agreement, I was persuaded, essentially for the reasons set out in [16] above, that I could order non-disclosure of the Information without the trial being unfair to the accused. Accordingly, I granted the Commonwealth’s application under s 130 for non-disclosure of the Information and rejected the accused’s application for a permanent stay.