Re Mayhoub (Ruling No 2)
[2020] VSC 643
•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 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 Opening, the accused concedes that the deceased died as a result of a single stab wound to his chest, caused by a knife wielded by him. The accused denies having 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. The accused asserts that the knife accidently entered the deceased’s body during the physical struggle between the three persons on the front porch of the accused’s home.
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 applicable law
As to self-defence, the relevant provision of the Crimes Act 1958 is:
322K Self Defence
(1)A person is not guilty of an offence is the person carries out the conduct constituting the offence in self-defence.
(2)A person carries out conduct in self-defence if –
(a)the person believes that the conduct is necessary in self-defence; and
(b)the conduct is a reasonable response in the circumstances as the person perceives them.
(3)This section only applies in the case of murder if the person believes that the conduct is necessary to defend the person or another person from the infliction of death or really serious injury.
The relevant evidence
Evidence of Neriman Oksuz
The prosecution proposes to lead evidence from Mrs Oksuz, that:
(a) Although her husband took care of the accounts, she helped out her husband in the business and had a fair idea of what money was owed to her husband due to always being there with him at his business premises;
(b) She had knowledge of the work performed by her husband at the home of the accused;
(c) The accused worked during the day, so her husband did the cabinetry work for him during evenings in 2018;
(d) The cabinetry work was completed before New Year’s Day 2018;
(e) Her husband tried calling the accused in 2019 seeking payment, but he did not pay and stopped answering his calls;
(f) The accused told her husband he was going to Syria and would pay upon his return;
(g) Her husband had waited patiently for up to 18 months to be paid;
(h) The accused eventually agreed that her husband could come to his home on 20 May 2018, ‘after work’, to obtain payment of the outstanding monies;
(i) She and her husband went to the accused’s house that evening, and the accused was not home;
(j) The door was answered by the accused’s son whereupon her husband introduced himself, with the deceased and his wife then waiting in their car for the accused to come home;
(k) The accused did not return home so she and her husband left;
(l) On 22 May 2019, her husband worked during the day, then played volleyball in the evening, before leaving for the accused’s home at approximately 9:00pm;
(m) Her husband took his friend Kaya with him so that he wasn’t alone and would have a witness;
(n) Later in the evening of 22 May 2019 the accused called her telephone but she did not answer because she doesn’t speak English;
(o) Moments later, she received a telephone call from Kaya’s wife informing her that her husband had been stabbed, and she was driven to the accused’s house, where she saw her husband lying on the ground.
The prosecution submissions
The prosecution argues that the evidence from Mrs Oksuz is relevant to the issues of:
(a) The jury’s assessment of the state of the relationship between the accused and deceased;
(b) The credit of the accused; and
(c) The issue of self-defence.
Relationship
Although the defence broadly maintain that the relationship between the deceased and the accused is uncontroversial, the prosecution submits that the nature of the relationship between the accused and the deceased remains a live issue in the trial. The prosecution argues that the accused’s wife evidence is capable of providing a more complete and accurate picture of the relationship that existed between the two men. In particular, it is submitted that the evidence is relevant to dispel any suggestion that it was surprising, or unusual, that the deceased attended the accused’s home at 9pm on 22 May 2019 to seek payment of the debt owed.
Relevance to self-defence
The prosecution points to the proposed defence of self-defence and seeks to lead relevant evidence from Mrs Oksuz on that issue. The prosecution points out that the accused is likely to argue that the accused was confronted by the deceased and Kaya at his home, late in the evening, that they engaged in aggressive conduct, and that they deliberately and perhaps unlawfully entered the home of the accused man where they both assaulted him. The prosecution points out the accused will likely argue from that point onwards his actions were carried out in self-defence. The prosecution submits that it is entitled to meet that argument by a contribution of the evidence of Mrs Oksuz, as proposed.
It is submitted that without the evidence of Mrs Oksuz, the jury may be left with the false impression it was unusual for the accused and his friend to arrive at the accused’s home, late in the evening in the circumstances they did, and that they had gone to the accused’s home with intention to be violent, rather than collect a debt. It is submitted that in the absence of her evidence, the jury might be left with a misleading impression that:
(a) The accused was willing to pay the monies owed to the deceased;
(b) The attendance of the deceased at the accused’s home was both unusual and surprising; and,
(c) With respect to the events that occurred at the accused home, he was therefore ‘reacting’ to a strange and unexpected occurrence.
It is submitted that the aforementioned factors can be put in contrast to Mrs Oksuz’s evidence that the accused:
(a) Had failed to pay the deceased money in the past, contrary to his representations;
(b) Was accustomed to the deceased coming to his home during the evenings, as he had often done so; and
(c) That he could not have been surprised that the deceased attended his home on the evening of 22 May 2019, particularly as he had visited the premises a few days prior.
The prosecution argues that Mrs Oksuz’s evidence is relevant to self-defence as it will be necessary for the jury to consider whether the accused’s response was reasonable in the circumstances as he perceived them. That is, the jury will be necessarily invited to consider that the true ‘circumstances’ as the accused perceived them were that the deceased had attended his home, yet again, in an effort to be paid money owed to him, and did so at a time that was not unusual for the deceased to attend his home.
The prosecution submits that Mrs Oksuz’s evidence is capable of placing the relationship between the accused and her husband in a more realistic and accurate context, and that it is relevant to dispelling a suggestion that it was surprising, and unusual for the deceased to attend the accused’s home in the evening, and that the visit was not for a sinister purpose, namely to engage in violence.
Credit of the accused
As to the credit of the accused, the prosecution submits that the evidence of Mrs Oksuz is in vast contrast to the account given by the accused that he was all too willing and able to meet with the accused to pay him the money owed. It is pointed out that the accused told the police in his record of interview that he owed money to the deceased. However, the prosecution points to the evidence of Mrs Oksuz that she and her husband attended the accused’s home on 20 May 2019, pursuant to an agreement with the accused to pay the debt, but that he failed at the time he said to meet. Contrary to her version of events, it is submitted that the accused told police that an arrangement had been made for the deceased to visit on 20 May 2019, where he asserted that the deceased either had not come, or that he could not remember if he had come or not.
The prosecution submits that it should be permitted to lead this evidence as it is relevant to an assessment of the credit of the account given by the accused as to the events that occurred.
The defence submissions
The accused objects to the admission of Mrs Oksuz’s evidence pursuant to s 55 and s 137 of the Evidence Act (‘EA).[1] It was agreed between the parties that these matters be determined prior to any argument about whether the evidence is admissible under any exceptions to the hearsay rule pursuant to Part 3.2 of the EA.
[1]2008 (Vic).
Relevance
The accused argues that Mrs Oksuz’s evidence is not relevant to provide a foundation for the claim that it was not surprising or unusual for the deceased to attend the accused’s home late on 22 May 2019 seeking payment for the debt owed.
The accused argues that the facts the prosecution seek to be adduced through Mrs Oksuz will already be in evidence via:
(a) A series of Whatsapp messages and mobile telephone records;
(b) The CCTV footage from Monday 20 May 2019 which depict Mrs Oksuz and the deceased attending the accused’s home between 17:54-17:56 and the accused returning home at 18:33, it not being in dispute that the deceased and Ms Oksuz attended the accused’s home to seek payment and spoke to the accused’s son who told them that his father was not home from work; and
(c) The agreed facts tendered via the Defence Response pursuant to s 191 of the EA.
The accused argues the reason why the deceased and Kaya went to the accused’s home on 22 May 2019 seems almost entirely uncontroversial, and simply part of the context that both the prosecution and defence rely on to explain what then happened. It is pointed out that it is not in issue that work was done by the deceased, and following that work the deceased made a series of attempts by phone and text, as well as the visit on 20 May 2019, to collect the balance of the payment owing for the work performed.
It was submitted that the evidence of Mrs Oksuz does not assist in any controversy in the trial, there being no fact in issue that her evidence could rationally affect. The accused contends that there is nothing that Mrs Oksuz is capable of saying about any preceding attempts to obtain money, including the evening of 20 May 2019, that can dispel any suggestion of surprise on the part of the accused at the arrival of the deceased and Kaya. The accused argues that this submission gains all the more force by reason of Kaya’s evidence that his role on 22 May 2019 was to show a degree of force towards the accused, and ‘to intimidate him a little’. Accordingly, it is submitted that whatever Mrs Oksuz can say in her evidence cannot bear on anything that occurred on 22 May 2019, as there was such a difference in the character of what occurred on that night compared to what occurred on 20 May 2019.
The accused notes that the fact the deceased considered he had done a good job on the cabinetry work but that Mr and Mrs Mayhoub did not share that view is also uncontroversial. The accused contends that this is not a matter that Mrs Oksuz can give evidence about due to her never having seen the work, and at no point speaking to the accused or Mrs Mayhoub about it.
Further, the accused submits that if there were some further facts such as that the carpentry work was done during the evening, the prosecution is invited to put forward additional facts in the statement of agreed facts. Accordingly it was submitted there is no fact “in issue” to which the evidence can rationally attach, it being further submitted that the prosecution simply does not require her evidence.
Section 137
Section 137 of the EA provides that the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
The defence contends that even if Mrs Oksuz’s evidence survived the operation of sections 55 and 56 of the EA, it is peripheral to the real issues in dispute, namely, what occurred when Kaya and the deceased arrived at the Mayhoub’s house on 22 May 2019. It is submitted that the probative value of the evidence is very low.
Furthermore, the accused argues that Mrs Oksuz’s continuing grief at the death of her husband would carry with it an emotional pull, not justifying the admission of her evidence. It was submitted that it would be natural for a jury to feel extreme sympathy for Mrs Oksuz, and there is a risk that undue weight would be given to the evidence, because of her significant emotional state. It was noted that the prosecution conceded in oral submissions that Mrs Oksuz’s emotional state continues to be fragile.
The accused highlights that the evidence the prosecution seeks to adduce from Mrs Oksuz is otherwise available to the jury without the emotional overtones. Therefore, the accused highlights that permitting Ms Oksuz to give evidence would duplicate uncontroversial facts and risks offending s 137 of the EA.
In relation to the hearsay components, the accused agreed with the prosecution that if Mrs Oksuz’s evidence survived the operation of s 55, 56 or 137, then a voir dire would be an appropriate way to determine any application of the hearsay rule to that evidence.
Conclusions
As above, self-defence is expressly raised as a defence to the prosecution case. It is to be assumed that the case will be argued on that basis, and that the issue will be put before the jury from the very beginning of the trial. It may well be that other defences are put forward, however, this ruling does not need to address those possibilities.
In my opinion it is convenient to consider the arguments regarding the nature of the relationship between the accused and deceased, and the aspect of self-defence, together. In the circumstances of the present case where there was previous relationship that existed between the two men, and for the reasons advanced by the prosecution, I am of the opinion that the nature of that relationship is relevant to the jury’s consideration of self-defence.
Having carefully considered the matters put forward in argument, I am of the opinion that in circumstances where self-defence is specifically raised, that the defence should be evaluated by the jury in the context of the relationship that existed between the accused and the deceased. In my opinion, the prosecution is entitled to place evidence before the jury with respect to the true nature of what it asserts that relationship to have been. Such evidence is capable of contributing to the assessment of the state of mind of the accused, and understanding his response to the perceived threat of danger. In my opinion the nature of the existing relationship is relevant to that assessment. In short, the jury will be obliged to consider whether the conduct of the accused in stabbing the deceased man was ‘a reasonable response in the circumstances as the person perceives them’.
For the purposes of the issue of self-defence I have proceeded on the premise that if the defence is advanced, it will be on the basis that it will be open for the jury to be satisfied that although the accused’s conduct in stabbing the deceased was a deliberate act, it was carried out in conformity with the provisions contained in s 322K of the Crimes Act.
In my opinion the circumstances as the perceived them must be, at least to some extent, informed by the background events leading up to the visit by the deceased to the accused’s home, which in turn logically entails evidence as to the nature of their relationship up to that point.
On the other hand, if evidence as to the nature of the relationship is not provided to the jury, there is a risk that the response of the accused to a perceived threat will not be the subject of a complete and fair consideration by the jury.
In reaching the above conclusion, it is certainly not to be forgotten that evidence in the trial is likely to be that the deceased, and his friend Kaya, gained initial entry to the accused’s home forcefully, and probably unlawfully, and following that entry, a significant degree of violence occurred inside the premises. It will be alleged by the accused that inside his home he was struck forcefully by one or other of the men who gained entry. In circumstances where their previous relationship appeared to have not been attended by violence, it may be argued that the violence that is claimed to have occurred when the deceased and his friend entered the accused’s home, and in the moments following, caught the accused by surprise, off-guard, and feeling immediately threatened. The accused’s past relationship with the deceased is relevant to the assessment of the response that then occurred to those circumstances.
The above observed, it will be a matter for the jury’s assessment as to what to make of the accused man then arming himself with a knife, leaving the security of his home and then becoming involved in a struggle on the porch, in circumstances where the deceased man appears to have been unarmed at that time. It can be noted that it appears the accused’s wife was present outside the front door at the time, having herself forcefully pushed the two men onto the front porch, and that the accused man was likely aware that she was outside with them, and alone with them. It is also to be noted that Kaya had left the porch by the time the fatal events took place and possibly posed no ongoing immediate threat to the accused.
The foregoing features of the evidence, along with the other relevant pieces of evidence bearing on the issue, are all matters for the jury’s evaluation. In my opinion these matters should all be assessed in the context of the overall nature of the relationship that had developed between the two men over the preceding period, and as existed at the time of the events at the accused’s home. The accused’s response to any perceived threat must be properly evaluated in that broader context.
Accordingly, I am of the opinion that the evidence of Mrs Oksuz is relevant to the issue of self-defence. She is capable of giving evidence that provides relevant context to the true nature of the relationship, should that evidence be accepted by the jury. As above, the nature of the relationship is capable of bearing on the assessment of the conduct of the accused and whether it was ‘a reasonable response in the circumstances’ as he perceived them.
Furthermore, in my opinion, the prosecution is entitled to provide the jury with a comprehensible and relevant narrative that places the prosecution case in its necessary context. The fact that there may be elements of the evidence that are uncontroversial does not prevent the prosecution from leading the evidence to enable a proper understanding of the events under consideration.
Section 137 of the Evidence Act
The accused also argued that if the evidence of Mrs Oksuz is admissible, it should be excluded under s 137 of the EA. It was submitted that the probative value of her evidence was low, and that there was a risk that the “emotional pull” of her giving the evidence would engender extreme sympathy for her, carrying with it a risk that undue weight would be given to the evidence. Whilst it was conceded by the prosecution that the emotional state of the witness is fragile, in the circumstances I am not of the opinion that the evidence is of low probative value, nor am I of the opinion that the probative value is outweighed by the danger of an unfair prejudice to the accused. It is my opinion that Mrs Oksuz’s evidence has probative value of significance to the prosecution case and it is important that the jury have the opportunity to evaluate that evidence in the circumstances I have discussed above. If there was any risk that developed in the course of her evidence then I am quite satisfied that the jury could be given appropriate directions to alleviate it.
Accordingly I decline to exercise the power of exclusion under s 137 of the EA.
Having come to the preliminary view that the evidence of Mrs Oksuz is generally admissible, it is desirable that her evidence is either heard pursuant to a s 198B examination[2], or pre-recorded, so that argument can be heard as to the extent to which various parts of her evidence might be inadmissible by virtue of the hearsay rule.
[2]Criminal Procedure Act (2009).
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