Re Mayhoub (Ruling No 4) - [2021] VSC 269

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 – 17 July 2020
DATE OF JUDGMENT:	19 May 2021
CASE MAY BE CITED AS:	Re Mayhoub (Ruling No 4)
MEDIUM NEUTRAL CITATION:	[2021] VSC 269

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CRIMINAL LAW – Ruling – Admissibility of evidence – Charge of murder – Accused alleged to have stabbed victim in the chest over debt – Whether accused was placed under arrest with caution and rights – Accused found not to have been arrested – Alleged admissions captured on body worn camera footage – Whether statements are admissions – s 90 Evidence Act 2008 applied to exclude admission from being led in evidence – ss 55, 56, 90, 137, 138 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

At the trial of Samir Mayhoub (‘the accused’), the prosecution intends to lead evidence of a conversation that occurred between Detective Senior Constable Dean Hartwell (‘Hartwell’), and the accused, during which it is alleged that Hartwell arrested the accused, administered a caution, and gave him his rights. In addition, it is proposed to adduce evidence of footage from the body worn cameras of Constable Natasha Leigh (‘Leigh’) and Sergeant Stephen Solyom (‘Solyom’) during which the participants made various statements. This ruling addresses the admissibility of pieces of evidence arising from these conversations, as discussed further below.

From 15 to 16 July 2020, a voir dire was conducted and addressed the issue of whether Hartwell arrested the accused and provided him with his rights and a caution. The Court heard evidence from Hartwell, Detective Senior Constable Stuart Briggs (‘Briggs’) Solyom, Detective Leading Senior Constable Stephen Eppingstall (‘Eppingstall’), and the accused on this issue. The evidence was followed by submissions made by both parties.

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 the purpose of this visit was to discuss a debt of $8,400 owed by the accused for cabinet making work previously 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 sending the accused text messages and attending his house with his wife on 20 May 2019.

When the deceased and Kaya arrived at the accused’s home on 22 May 2019, it is alleged that a verbal altercation occurred on the front porch with the accused, followed by a brief physical altercation amongst the three men within the accused’s home. The accused’s wife then ejected the deceased and Kaya from the house. With…

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 4)

Details

AGLC: Re Mayhoub (Ruling No 4) [2021] VSC 269
Case: [2021] VSC 269
Decision Date: 19 May 2021

CaseChat Overview and Summary

The case before the court involved a ruling regarding the admissibility of evidence in a criminal matter. The accused, Mayhoub, was charged with the murder of a victim who had been stabbed in the chest over a debt. The dispute centred on whether Mayhoub had been placed under arrest with caution and informed of his rights prior to any alleged admissions being made, and whether those admissions could be admitted as evidence under the Evidence Act 2008. The case was heard in the Magistrates' Court of Victoria.

The court was required to determine the admissibility of statements made by the accused, which were captured on body-worn camera footage, and whether those statements constituted admissions under the Evidence Act 2008. The central issue was whether the accused had been arrested and cautioned before making the statements, as this would affect the admissibility of the evidence under sections 55, 56, 90, 137, and 138 of the Evidence Act 2008. Additionally, the court needed to consider whether the evidence could be excluded under section 90 of the Act due to the potential for unfair prejudice or to protect the rights of the accused.

The court found that the accused had not been arrested or cautioned before making the alleged admissions, which meant that the statements were not admissible under sections 55 and 56 of the Evidence Act 2008. The court applied section 90 of the Act to exclude the admissions from being led in evidence, as it was deemed that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. The court also considered sections 137 and 138, which pertain to the admissibility of evidence obtained from an accused person, and concluded that the evidence should be excluded in this instance. Ultimately, the court ruled that the alleged admissions could not be admitted as evidence against Mayhoub.

In light of the court's ruling, the accused's alleged admissions captured on the body-worn camera footage were excluded from being led in evidence. The court's decision was based on the application of sections 55, 56, 90, 137, and 138 of the Evidence Act 2008, which led to the exclusion of the evidence due to the lack of a formal arrest and caution, as well as the potential for unfair prejudice.

Orders