Re Mayhoub (Ruling No 2) - [2020] VSC 643

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 2)
MEDIUM NEUTRAL CITATION:	[2020] VSC 643

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CRIMINAL LAW – Ruling – Admissibility of evidence – Charge of murder – Accused alleged to have stabbed victim in the chest – Prosecution contends evidence of deceased wife relevant to the relationship between deceased and accused, accused credit and issues of self-defence and/or defence of another – Defence disputes relevance – s 55, 56 and 137 Evidence Act 2008.

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

HIS HONOUR:

Introduction

The prosecution intends to lead evidence from Neriman Oksuz in the trial of Samir Mayhoub (‘the accused’). The accused is charged with the murder of Bunyamin Oksuz, the husband of Neriman Oksuz. This ruling addresses the admissibility of the evidence proposed to be led from Neriman Oksuz.

The prosecution case

On 22 May 2019 at approximately 9.00pm, Bunyamin Oksuz (‘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 case is that this debt had been outstanding since May 2018 and that the deceased had made numerous non-violent attempts to obtain the money, including calling and sending the accused text messages then attending his house with his wife, Neriman Oksuz, on 20 May 2019.

When the deceased and Kaya arrived at the house, the accused opened the front door and an argument occurred on the outside porch, followed by a brief physical altercation amongst the three men inside the house, after the deceased and Kaya had gained entry. The accused’s wife then ejected the deceased and Kaya from the house onto the front porch. Kaya left the porch shortly after emerging from the house, and moved away some distance. Meanwhile the accused had obtained a knife from inside the house and went back on to the porch where the argument continued, then in the presence of his wife. The argument became violent with the accused’s wife becoming physically involved in the events, coming between the accused and the deceased. Despite attempts by the accused’s wife to de-escalate the conflict, it is alleged that the accused stabbed the victim’s chest during the course of the struggle that had developed. The accused then retreated inside and closed the front door. The deceased left the porch and collapsed onto the road outside the accused’s house, where he died shortly after.

The defence response

In his Response to the Summary of Prosecution…

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 2)

Details

AGLC: Re Mayhoub (Ruling No 2) [2020] VSC 643
Case: [2020] VSC 643
Decision Date: 2 October 2020

CaseChat Overview and Summary

The case of Re Mayhoub (Ruling No 2) involved the accused facing a charge of murder for allegedly stabbing the victim in the chest. The prosecution argued that evidence of the relationship between the deceased and the accused was relevant to the accused’s credibility and potential defences such as self-defence or defence of another. The defence contested the relevance of this evidence under sections 55, 56 and 137 of the Evidence Act 2008. The court had to decide whether the evidence of the deceased’s wife was admissible.

The court considered whether the evidence of the deceased’s wife was relevant to the accused's credibility, the relationship between the deceased and the accused, and the potential defences of self-defence or defence of another. It examined the statutory provisions, particularly sections 55, 56 and 137 of the Evidence Act 2008, which address relevance, character evidence, and discretion to exclude evidence. The court had to balance the probative value of the evidence against any potential prejudicial effect it might have.

The court determined that the evidence was relevant to the issues of the accused’s credibility, the relationship between the deceased and the accused, and the potential defences. It found that the probative value of the evidence outweighed any prejudicial effect it might have. Therefore, the evidence was deemed admissible. The court ruled that the evidence of the deceased’s wife was relevant to the case and could be considered by the jury.

Orders