Re Mayhoub (Ruling No 1)
[2020] VSC 641
•2 October 2020
| 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 |
| v |
| 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 collapsed. Neither had been involved in the events that had occurred on the porch, only coming onto the scene at a later stage. It is alleged that they heard a number of statements uttered, which the prosecution intends to lead in its case against the accused.
The defence response
In the Response to the Summary of Prosecution Opening, the accused concedes that the deceased died as a result of a single stab wound to his chest, caused by a knife held by him. The accused denies that he deliberately caused the knife to enter the deceased’s body.
It is proposed that the issues of causation, deliberateness and self-defence or defence of another will arise, depending on how the prosecution particularises the unlawful and dangerous act/s. It is also asserted that the knife in his possession accidentally entered the deceased’s body during the struggle involving the three persons on the front porch of his house.
Further, the accused asserts that the deceased attended his house with Kaya because he sought, by whatever means, to get the accused to pay the money to which the deceased claimed he was entitled.
The relevant evidence
Evidence of Michael Tower
The prosecution proposes to lead the following evidence from Michael Tower:
(a) As a result of what his wife told him, he went to Augusta Avenue, observed the deceased on the ground, and contacted 000;
(b) While he was on the phone to 000, and before the police and ambulance attended the scene, he observed the accused;
(c) At that stage, he heard a man, asserted by the prosecution to be Kaya, say to the accused, “Why didn’t you pay him his money” and the accused reply, “What money? Or something similar”;
(d) He observed Kaya using his phone;
(e) Around the same time, he observed a person, alleged by the prosecution to be the accused’s wife, Taghrid Mayhoub, come out of her front door. She yelled out a name, which Michael Tower did not know. Rather, he remembers her crying and asking ‘what happened?’; and
(f) While he was on the phone to 000, he grabbed the accused ‘to try to keep him separated from Kaya’.
For the sake of clarity, the words, ‘What money?’, are alleged to have been said by the accused, as reflected in the statement of Michael Tower. The words, ‘Or something similar,’ appear to be Tower’s qualification that the words actually used by the accused may have been somewhat different.[1]
[1]Statement of Michael Tower at HUB p.57, para 11.
Evidence of Martin Tower
The prosecution also proposes to lead evidence from Martin Tower that he heard Kaya say to the accused, ‘Why didn’t you pay him his money?’ It is to be noted that Martin Tower does not give evidence as to what response, if any, was given to that question. It is the prosecution’s intention to call both Tower brothers on the basis that their evidence, to an extent, is corroborative of each other.
In written submissions, the prosecution sought to lead evidence from Martin Tower that Kaya stated ‘Why do you have to kill him?’ to the accused. However, in oral submissions, it did not press this utterance, conceding that it contains a degree of prejudice which may lead to unfairness against the accused if led.
Further, the prosecution does not intend to lead evidence that Martin Tower was present when a police officer asked, ‘Who’s the offender?’ and the accused replied, ‘I am’.
The prosecution’s submissions
The prosecution submits that the state of the relationship between the accused and the deceased will be a fact in issue in the trial. It is the prosecution case that the relationship was acrimonious due to the debt owed. As such, it is submitted that Michael Tower’s evidence of overhearing the accused say, ‘What money? Or something similar’, is relevant to the issue of whether the accused truly decided to pay the deceased money, thus being relevant to the true state of their relationship.
It is contended that Michael Tower’s evidence is capable of being used by the jury in the following ways:
(a) To dispel the argument that the deceased and Kaya were determined to use violence to obtain money, as Kaya called 000 after the incident and said to the accused, ‘Why didn’t you pay him his money’?;
(b) To dispel the argument that the accused decided to pay the money so that the deceased would leave his family alone, as the accused said to Kaya ‘What money?’; and
(c) As going to the accused’s credit.
The prosecution also relies on s 66 Evidence Act (‘EA’) to adduce the representation allegedly made by Kaya through the evidence of Michael Tower, on the basis that when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made it. It is argued that the asserted fact is that the accused owed money to the deceased and that all Kaya and the deceased wanted to achieve was to obtain that money, rather than start a fight.
It is also submitted that, in assessing whether to adduce the evidence of Michael and Martin Tower, the Court should have regard to the fact that the deceased’s wife, Neriman Oksuz, provides evidence as to the state of the relationship between the accused and the deceased. The prosecution contends that her evidence is ‘more compatible’ with that of Michael Tower, rather than the evidence of the accused.
With respect to the accused’s credit, it is submitted that he told the police in his record of interview that he owed money to the deceased. He stated that, on the night, there was a knock on his door and his wife said ‘that must be the carpenter’ and he told her ‘if it’s him I’m gunna pay him’.
In contrast, Michael Tower’s evidence is that he heard the accused say, ‘What money? Or something similar’. It is submitted that this representation is an admission, contrary to the accused’s assertion in the record of interview. The prosecution contends that the representation, ‘What money?’, implies that the accused in fact had no desire to pay the deceased, thus being capable of diminishing his credit.
It is submitted that an assessment of the accused’s credit will be relevant in the jury’s consideration of the issues of self-defence and voluntariness. The prosecution contends that it will inform a jury’s assessment of the truthfulness of other assertions made by the accused, namely that he was threatened, acted in self-defence and did not deliberately strike the deceased with the knife, and that it was an accident.
In relation to self-defence, it is submitted that Michael Tower’s evidence is probative, as in the absence of his evidence, the jury might be left with the misleading impression that:
(a) The accused was willing to pay money owed to the deceased;
(b) The deceased’s attendance at the accused’s house on 22 May 2019 was unusual or surprising;
(c) The accused was therefore ‘reacting’ to a strange and unexpected occurrence; and
(d) The deceased and Kaya’s true motive in going to the accused man’s home was to carry out a home invasion.
Instead, it is submitted that the true state of affairs is that the accused:
(a) Had failed to pay the deceased money in the past, contrary to his representations to the deceased;
(b) Was accustomed to the deceased coming to his home during the evenings; and
(c) Could not have been surprised that the deceased attended his home on the evening of 22 May 2019.
It is contended that Michael Tower’s evidence is relevant to the charge of murder, where the jury must consider whether the accused’s response was reasonable in the circumstances as he perceived them. The prosecution case is that the true circumstances as the accused perceived them was that the deceased had attended his house yet again, in an effort to be paid money owed to him, and did so at a time not unusual for him to attend the accused’s house. It is argued that a misleading picture may be presented to the jury, namely that the accused should never have expected the deceased to attend his home seeking money, and was surprised by such a visit at that time.
Further, it is contended that Michael Tower’s evidence is also relevant to the credit of Taghrid Mayhoub. The prosecution notes that the defence may lead evidence through Taghrid Mayhoub of the state of the relationship between the accused and deceased being one where the accused decided to pay him, was willing to pay him and told his wife, ‘they are welcome’, as the deceased and Kaya knocked on their door. It is submitted that Michael Tower’s evidence of hearing Taghrid Mayhoub say ‘What happened’ after the fatal incident contradicts that picture, and is relevant to the assessment of that relationship.
The prosecution notes that the submissions made in respect of Michael Tower’s evidence also apply to that of Martin Tower.
The defence’s submissions
The defence contends that the prosecution has not passed the thresholds in s 55 and 56 EA, having not established that the evidence of Michael and Martin Tower is relevant to the assessment of a fact or facts in issue. It is submitted that the accused knew that the deceased was pursuing payment of the debt and thus the evidence of the Towers does nothing to explain the nature of their relationship or whether there was a legitimate dispute over the debt. It is further contended that their relationship is not fact in issue, being one where the deceased was seeking payment of a debt from the accused.
As such, the defence submits that the prosecution relies on the ‘What money? Or something similar’ statement as an attempt by the accused to claim ignorance, thus constituting incriminating conduct reasoning which is non-compliant with the Jury Directions Act (‘JDA’). It contended that the prosecution case is that the statement in and of itself is a lie, thus triggering the operation of the JDA. However, it is submitted that the JDA does not need to be grappled with if this Court finds that the evidence does not meet the relevance thresholds.
Further, the defence contends there is a degree of uncertainty in Michael Tower’s evidence that the accused stated ‘What money? Or something similar’. As Tower does not know the exact words, it is submitted they cannot rationally affect the assessment of a fact in issue as required by the Act. It is further submitted that the purported representation does not equate to the accused not acknowledging the debt nor does it indicate that he never wanted or intended to pay the money prior to the deceased and Kaya attending his home.
Further, it is noted that a lot had occurred in the period following the events on the porch to when the question was asked by Kaya. It was not asked at the time of the physical altercation. As such, it is submitted that it would be irrational to attribute a statement by Kaya, standing next to his friend who is in a state of emergency, as amounting to a rational inference about his earlier intention. In any event, it is contended that the actions of the deceased and Kaya were almost entirely captured on CCTV footage.
It is also submitted that the natural implication of the representation suggests a lack of understanding when Kaya asked ‘Why didn’t you pay him his money?’ As such, it is contended that ‘What money? Or something similar’ cannot be used to contradict the accused’s version of events in his police interview.
Further, the defence points out that the purported statement is only found in Michael Tower’s statement. At the committal hearing, Kaya gave evidence that he did not ask the accused, ‘Why didn’t you pay him his money?’, but rather, ‘Are you happy with what you’ve done? If you had of paid it none of this would have happened.’ It is noted that Michael Tower only gave his statement to the police two weeks after the incident and that neither of the Towers gave evidence at the committal hearing.
Finally, the defence contends that evidence which is only relevant because it affects the credit of a prosecution witness, being Taghrid Mayhoub, prior to leave being granted to cross-examine that witness on credit, should not form part of a prosecution opening. In oral submissions, it disputed that the evidence of her stating ‘What happened?’ could paint a different picture of the relationship between the deceased and the accused.
Analysis
The words alleged to have been said between Kaya and the accused occurred while they were near the deceased, as he lay on the road outside the accused’s house. The atmosphere was clearly dramatic and highly emotional, as graphically demonstrated in footage depicting the events at the scene.
There is no dispute that the knife which caused the death of the deceased had been wielded by the accused. There can be no doubt that he knew of that fact at the time he allegedly said the words, ‘What money? Or something similar’. The ultimate issue in this trial is whether the prosecution can establish the accused’s state of mind at the time the knife entered the body of the deceased and whether his actions were voluntary.
As outlined above, the prosecution seeks the admission of evidence of the statements made by Kaya and the accused for a number of reasons. In the circumstances, I am of the opinion that the advancement of each reason depends on the meaning to be attributed to ‘What money? Or something similar’. The meaning of these words is significant, compared to a case where the mere fact of particular words having been uttered is of relevance. I note that if these words are not before the jury, the question allegedly asked by Kaya is of no relevance and should not be adduced.
In light of the issues the jury will have to consider, my opinion is that the words, ‘What money? Or something similar’, are not of themselves, or in combination with other facts, sufficiently clear as to the meaning that can be attributed to them. Fundamentally, to be admissible, the utterances must be probative and relevant to a fact or facts in issue in the proceeding. In my opinion, the words ‘What money’ could not be capable of bearing sufficient meaning to be probative of the matters in issue between the prosecution and defence. It may be added to this observation that the actual words used lack precision as they have been expressly qualified by Michael Towers, such that he expressed a degree of uncertainty about what was actually said. In my opinion they bear insufficient connection to the issues to acquire relevance. Accordingly, the evidence does not satisfy the requirement under s 55EA.
In the event that I am incorrect about my conclusion as to admissibility, I would nevertheless exclude the words from being adduced into evidence pursuant to s 137EA, for the following reasons.
First, Kaya, who is alleged to be the only person involved in the conversation with the accused, did not give evidence that the accused responded with those words. Second, Michael Tower, who gives evidence of having heard the two men speaking, made his police statement approximately two weeks after the events took place. There is a real question as to whether the words were still sufficiently fresh in his memory to recall them accurately. This then relates to the third reason, being that Tower’s statement of what the accused allegedly said is equivocal and qualified. In my opinion, the words, ‘Or something similar’, suggest an element of doubt or lack of clear memory. It conveys an impression of what the accused may have said, rather than what was actually said. Given the suggested importance to be attributed to the words by the prosecution, I am persuaded that in light of the doubt attaching to what was actually said, there is a risk the jury will place undue weight on the words in circumstances where there is, in my opinion, doubt as to what was actually said.
In light of these reasons, I am of the opinion that the probative value of the statement allegedly made by the accused is outweighed by the danger of unfair prejudice to him. In my opinion, there is a risk that the words reported by Tower may be misused by the jury and that too much weight may be placed on them. In the circumstances of this case, I do not think that any judicial direction could remove that risk.
Accordingly, I will exclude the evidence from being admitted.
Given the basis on which I will exclude the utterances from being adduced into evidence it is not necessary to consider other grounds the prosecution have argued as to the admissibility of the statements.
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