Re Mayhoub (Ruling No 1) - [2020] VSC 641

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0286

IN THE MATTER of the Director of Public Prosecutions

Samir MAYHOUB

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JUDGE:	CHAMPION J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 July 2020
DATE OF JUDGMENT:	2 October 2020
CASE MAY BE CITED AS:	Re Mayhoub (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2020] VSC 641

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CRIMINAL LAW – Ruling – Admissibility of evidence – Charge of murder – Accused alleged to have stabbed victim in the chest – Evidence of purported representations by accused at scene – Prosecution contends evidence relevant to issues of causation, deliberateness, self-defence and/or defence of another – Defence disputes relevance – ss 55, 56, 66 and 137 Evidence Act 2008.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hayward with Ms K. Hamill	Office of the Public Prosecutions
For the Accused	Ms R. Shann with Ms F. Fox	Stary Norton Halphen

HIS HONOUR:

Introduction

The prosecution intends to lead evidence from Michael Tower and Martin Tower in the trial of Samir Mayhoub (‘the accused’). The accused is charged with the murder of Bunyamin Oksuz (‘the deceased’). In the alternative, the prosecution allege that the accused is guilty of manslaughter by unlawful and dangerous act.

This ruling addresses the admissibility of the evidence of Michael Tower and Martin Tower. The Court received written submissions on this preliminary issue and heard oral argument.

The prosecution case

On 22 May 2019 at approximately 9.00pm, the deceased and his friend, Kenan Kaya, went to the accused’s house. It is alleged that the purpose of this visit was to discuss a debt of $8,400 owed by the accused for cabinet making work performed by the deceased. The prosecution argues that this debt had been outstanding since May 2018 and that the deceased had made numerous non-violent requests to obtain the money, including sending the accused text messages and attending his house with his wife on 20 May 2019.

When the deceased and Kaya arrived at the house, it is alleged that an argument occurred on the front porch with the accused, followed by a brief physical altercation amongst the three men inside the house. The accused’s wife then ejected the deceased and Kaya from the house. After arming himself with a knife, the accused went back onto the porch and continued arguing with the deceased. Despite attempts by his wife to de-escalate the conflict, it is alleged that the accused stabbed the deceased in the chest during the course of the confrontation which had become physical, and in which the accused’s wife had become involved. The deceased then retreated from the porch and collapsed onto the road outside the accused’s house, where he died shortly after.

A CCTV camera had been installed near the front door, which captured all of the events on the porch, though without sound being recorded.

Both Michael and Martin Tower attended the road outside the accused’s home where the victim had…

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 Re Mayhoub (Ruling No 1)

Details

AGLC: Re Mayhoub (Ruling No 1) [2020] VSC 641
Case: [2020] VSC 641
Decision Date: 2 October 2020

CaseChat Overview and Summary

The case of Re Mayhoub (Ruling No 1) involved a criminal matter in which the accused faced a charge of murder. The prosecution alleged that the accused had stabbed the victim in the chest, leading to the victim’s death. The matter before the court was the admissibility of specific evidence regarding representations allegedly made by the accused at the scene of the crime. The prosecution argued that this evidence was relevant to several issues, including causation, the deliberate nature of the act, and potential defences such as self-defence or defence of another. The defence, however, contested the relevance of the evidence, raising questions under the Evidence Act 2008.

The legal issues before the court centred on the interpretation and application of the admissibility provisions of the Evidence Act 2008, specifically sections 55, 56, 66, and 137. The court had to determine whether the evidence in question was sufficiently relevant to the issues at hand and whether its probative value outweighed any prejudicial effect it might have. This involved assessing the potential impact of the evidence on the jury’s understanding of the circumstances surrounding the alleged murder and the accused’s possible motivations or state of mind.

The court found that the evidence of the accused’s representations was indeed relevant to the issues of causation, the deliberateness of the act, and potential defences. It concluded that the probative value of the evidence outweighed its prejudicial effect, thus deeming it admissible. The court relied on the principles that evidence is relevant if it could logically affect the assessment of any fact in issue and that the probative value of evidence is not necessarily outweighed by its potential to cause prejudice. This reasoning was grounded in the statutory provisions and case law interpreting the Evidence Act 2008.

The final orders of the court were that the evidence of the accused’s representations at the scene of the crime was to be admitted as part of the trial evidence. This ruling allowed the prosecution to present the evidence to support their case, while also providing the defence with an opportunity to challenge its relevance and reliability through cross-examination and other means. The trial could proceed with this evidence being considered by the jury in their deliberations.

Orders