Re Mayhoub (Ruling No 3) - [2020] VSC 644

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 3)
MEDIUM NEUTRAL CITATION:	[2020] VSC 644

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CRIMINAL LAW – Ruling – Charge of murder – Accused alleged to have stabbed deceased in the chest – Description of hand movement of the accused as thrusting motion – Reliance on hand movement as incriminating conduct – Forensic pathologist evidence regarding degree of force – Admissibility of autopsy photographs – Prosecution not permitted to describe hand movement as thrusting motion – Hand movement not permitted to be placed before the jury as incriminating conduct – Forensic pathologist evidence permitted to be adduced – Autopsy photos permitted to be adduced – Jury Directions Act – Evidence Act – Criminal Procedure Act.

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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 accused Samir Mayhoub is charged with the murder of Bunyamin Oksuz (‘the deceased’). It is alleged that the accused caused the death of the deceased by stabbing him once in the chest with a knife.

This ruling addresses the following four issues:

(a) Whether the prosecution are permitted to open to the jury and conduct the trial on the basis that, during a conversation with a police officer, the accused demonstrated thrusting the knife into the deceased’s body;

(b) Whether the accused’s alleged demonstration of a thrusting motion can be used as post-offence conduct;

(c) Whether the opinion of a forensic pathologist that ‘at least moderate force was used’ to inflict the fatal wound can be led in evidence; and

(d) Whether two autopsy photographs should be admitted into evidence.

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 case is 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. Having armed himself with a knife, the accused went back onto the porch where the argument with the deceased continued. Despite attempts by his wife…

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 3)

Details

AGLC: Re Mayhoub (Ruling No 3) [2020] VSC 644
Case: [2020] VSC 644
Decision Date: 2 October 2020

CaseChat Overview and Summary

The case of Re Mayhoub (Ruling No 3) involved the accused facing a charge of murder after allegedly stabbing the deceased in the chest. The dispute centred on the admissibility of certain descriptions of the accused's hand movement and the relevance of forensic pathologist evidence regarding the degree of force used. The case was heard in the relevant court where the presiding judge was tasked with determining the admissibility of the evidence in question.

The court was required to decide whether the prosecution's description of the accused's hand movement as a thrusting motion could be presented to the jury as incriminating conduct. Additionally, the court needed to determine if the forensic pathologist's evidence regarding the degree of force used in the stabbing, as well as the admissibility of autopsy photographs, were permissible. The court's reasoning hinged on the interpretation of relevant statutory provisions, including the Jury Directions Act, the Evidence Act, and the Criminal Procedure Act.

The court found that the prosecution was not permitted to describe the hand movement as a thrusting motion, as it could be seen as prejudicial and potentially misleading to the jury. The hand movement itself was also not allowed to be placed before the jury as incriminating conduct. However, the court permitted the forensic pathologist's evidence regarding the degree of force used to be adduced, as it was relevant to the case. Furthermore, the court allowed the autopsy photos to be adduced, as they were necessary to illustrate the injuries sustained by the deceased. The court's decision was grounded in the need to ensure a fair trial while avoiding the introduction of prejudicial or irrelevant evidence.

The final orders of the court prohibited the prosecution from describing the accused's hand movement as a thrusting motion and from presenting it as incriminating conduct to the jury. The court permitted the forensic pathologist's evidence and the autopsy photos to be presented, as they were deemed relevant and necessary for the case. The decision was made in accordance with the statutory provisions mentioned above, ensuring that the trial would proceed in a fair and just manner.

Orders