Re Mayhoub (Ruling No 5)
[2021] VSC 214
•17 May 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0286
| 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: | 17 May 2021 |
CASE MAY BE CITED AS: | Re Mayhoub (Ruling No 5) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 214 |
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CRIMINAL LAW – Ruling – Notice of Incriminating Conduct – Charge of murder – Accused alleged to have stabbed victim in the chest – Prosecution propose to rely on evidence of incriminating conduct – Attempting to call deceased four times – Sending deceased text message after alleged stabbing occurred – Decision – Prosecution not permitted to open the evidence to the jury as incriminating conduct – Decision on whether evidence can be used as incriminating conduct deferred to close of all the evidence.
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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
By Notice of Incriminating Conduct (‘the Notice’) dated 23 July 2020, the prosecution intends to adduce evidence of post-offence conduct of Samir Mayhoub (’the accused’). The prosecution alleges the evidence amounts to incriminating conduct.
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. The case for murder is put by the prosecution that the accused without lawful excuse or justification engaged in a physical altercation with the deceased while armed with a knife, during which he deliberately stabbed the deceased. Further, the prosecution case is that none of the accused’s actions on the evening of 22 May 2019 occurred in self-defence, or that the stabbing occurred accidentally.
This ruling addresses whether the prosecution should be permitted to lead the relevant evidence for the purpose sought. Additionally, the ruling addresses the question of how the prosecution can use the evidence, should it not be permitted to adduce it as incriminating conduct. The Court heard oral arguments on these issues.
The prosecution case
I have previously outlined the prosecution case and the relevant aspects of the defence response to the prosecution case in previous rulings.[1] It is not necessary to repeat those matters for present purposes, save as necessary to explain this ruling.
[1]See Re Mayhoub (Ruling No 1) [2020] VSC 641R; Re Mayhoub (Ruling No 2) [2020] 643R; Re Mayhoub (Ruling No 3) [2020]VSC 644R.
On 22 May 2019 at approximately 9.00pm, the deceased and his friend, Kenan Kaya, went to the accused’s house to discuss a debt of $8,400 alleged to have been 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.
The prosecution case is that an argument took place on the front porch of the deceased’s house during which the accused stabbed the deceased once to the chest area. After the blow inflicted to the deceased the accused went back inside his house and the front door closed. Around this time the deceased retreated from the porch and collapsed onto the road outside the accused’s house, where he died shortly after.
The relevant evidence
The prosecution seeks to lead the following evidence as set out in the Notice that the accused carried out the following actions after the alleged offending, namely that he:
(a) Attempted to telephone the deceased at:
(i) 9:04:41pm
(ii) 9:05:51pm
(iii) 9:07:43pm
(iv) 9:08:08pm, and,
(b) Sent the deceased a text message, ‘Answer the phone or I’m going to call police’ at 9:06:47pm.
The four attempts to call the deceased did not result in messages being left in any recorded form.
It is argued by the prosecution that the four attempted phone calls and single text message took place in the minutes after the accused struck the fatal blow to the deceased. It is contended that the actions amount to evidence of post-offence incriminating conduct.
The Notice expresses the prosecution’s position is that the accused’s calls and text message to the deceased amounted to an implied admission, being that the accused was aware that he probably caused the deceased really serious injury, and the purpose of the attempted communications were to ascertain the extent of such. As will be observed, that the accused caused the fatal injury appears not be in issue.
Attached to the Notice is an extract of call charge records which provide evidence of the communications set out above.
The defence response
It is not disputed that the accused man attempted to call the deceased, and sent the text message.
In the Defence Response to the Summary of Prosecution Opening, dated 20 March 2020 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. However, 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.
As above, the accused does not dispute that the knife that he held entered the body of the deceased and as a result the injury that caused the death of the deceased occurred. There is dispute as to the reason why, and how, the knife entered the deceased’s body. The accused denies he is guilty of murder or manslaughter, and claims his the action that led to the death of the deceased occurred accidentally, or that he was acting in self-defence.
The prosecution’s submissions
In order to place the challenged evidence into its proper context, the prosecution first points to the chronology of events that took place at the accused’s house. It is asserted that after the fatal blow on the front porch, the accused went into his house and thereupon the front door of the house closed at 9:02:50pm, which event was followed by the sequence of attempted communications. Referring to relevant CCTV footage, the prosecution points to evidence that the accused exited his house after the series of attempted calls and the text message was sent.
The prosecution argues that the relevant evidence is reasonably capable of being viewed by the jury as evidence of incriminating conduct, in that it could reasonably consider the evidence as amounting to an implied admission that the accused deliberately struck the victim with a knife. Although not explicitly stated, the submission appears to embrace the concept that the five events should be considered together as a united body of evidence amounting to the single admission sought to be led. At the same time, the prosecution acknowledges the existence of a contrary submission that the evidence may be equally capable of showing the accused’s awareness, after-the-fact, that he had accidentally struck the victim.
Further, the prosecution observes that if the evidence is admitted on the basis sought, there will be a contest as to why the accused attempted to make the calls and sent the SMS. The prosecution argues that if the evidence is admitted, the prosecution should be permitted to make its argument of incriminating conduct, because to disallow the evidence being put before the jury on this basis, would result in a ‘one-way argument’ from the defence that the acts of the accused are consistent with his innocence, with the accused attempting to contact the deceased out of a concern for his welfare.
The prosecution referred to s 20(1)(b) of the Jury Directions Act and argued that the Court should determine on the basis of the evidence as a whole that this evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct. The prosecution further noted the impact of s (21)(1)(a)(ii) of the Act which provides that if the prosecution is to rely on the evidence of conduct as incriminating conduct, the trial judge must direct the jury that it may treat the evidence as evidence that the accused believed that he or she had committed the offence charged, or an element of it, or that he or she had negated a defence to the offence charged, only if it concludes first, that the conduct occurred (which is not disputed in the present case), and that the only reasonable explanation of the conduct is that the accused held that belief as set out above.
The prosecution noted that there is no application to exclude this evidence from being led, so it is anticipated that the accused would likely argue that the evidence is entirely consistent with the accused accidentally injuring the person and then checking on his welfare. On the other hand, the prosecution seeks to argue to the jury that it can use the evidence to establish that the accused was aware that he had deliberately struck the victim, and that was what prompted him to make the attempted calls and send the text message.
The defence submissions
Counsel for the accused acknowledge the intention to argue that the attempted calls and text message are consistent with other evidence indicative of a concern for the deceased on the part of the accused after retreating back into his house. Counsel pointed out that a period of about seven minutes passed before the accused exited the house, during which time the four attempted calls were made, and the text message was sent. The obvious inference to be drawn is that these five events occurred when the accused was inside his house.
Counsel pointed out that when the accused emerged and went outside he did not take a weapon with him.
Counsel pointed out that the prosecution submission is that the relevant evidence amounts to an implied admission of deliberateness versus accident, but this is not what the Notice itself says. Rather, Counsel pointed out that the Notice asserts that the evidence demonstrates the accused may have had an awareness of the extent of the injury. Accordingly, Counsel points out the prosecution approach is that the evidence is somehow reasonably capable of supporting the conclusion that at the time the knife went into the deceased body, the accused was aware he had probably caused the deceased really serious injury. Counsel then referred to s 20 of the Act and argued that the task of the Court is to determine whether a rational jury could conclude that the explanation sought by the prosecution is the only reasonable explanation of the conduct in light of the evidence as a whole. Counsel argued that the statement contained in the Notice does not make sense in that it asserts that the accused is aware he probably caused really serious injury, but is seeking to determine the extent of the really serious injury. Counsel argued that this approach did not make any sense and it fell far short of the criteria to satisfy the threshold s 20 of the Act. Counsel argued that an awareness of being inside the house with the knife showing blood on it, is not an awareness or admission to having had the relevant mens rea at the time the knife entered the body.
Referring to s 18 of the Act which contains the definition of incriminating conduct that the relevant conduct must amount to an implied admission by the accused of having committed an offence charged, or an element of an offence charged, Counsel argued that the prosecution are seeking to support the argument that in attempting to call the deceased the accused was admitting to having the mens rea for reckless murder. However, Counsel pointed out that the Notice was cast in terms of the relevant evidence amounting to an implied admission that the deceased had ‘probably caused the deceased really serious injury’.
Counsel for the accused argued that in circumstances where the accused man observed the knife with blood on it, and there being no dispute that the fatal injury was caused by his action, the evidence is incapable of advancing anything relevant as to the accused man’s state of mind at the time the fatal blow occurred.
In oral submissions Counsel further pointed out that the prosecution appeared to accept that there was another reasonable explanation for the five communications. Counsel argued on the basis of that concession, the s 20 threshold is not met. Further, it was argued that it is not relevant to the proper application of s 20 of the Act that the prosecution wished to be able to have an answer to what the accused might say about the evidence.
Counsel noted the use of the evidence of this kind as an implied admission, could involve inviting the jury to engage in a particularly dangerous type of reasoning, so there has always been a high threshold before the prosecution are permitted to use evidence of this kind in the way proposed. Counsel argued that the fact that the defence may have a good argument about the evidence, but the prosecution on the other hand might not in turn have a good argument about it, is not a matter of proper consideration by the Court.
Counsel further noted that the Court is bound to consider the whole of the evidence when looking at the competing interpretations of the evidence. In support of this submission, Counsel pointed to some surrounding circumstances such as the accused taking steps to seek assistance for the deceased, his apparent remorse and being in a state of shock, and his attempts to assist first aiders in helping the deceased. Further, it was pointed out that the accused was in observable shock when told that the deceased had fact died. In support, Counsel pointed to aspects of the record of interview with the accused.
Counsel also pointed out that the service of the Notice came as something of an afterthought, following discussion in pre-trial argument.
Finally, Counsel acknowledged that the challenged evidence is admissible as part of the sequence of events after the altercation between the accused and deceased. However, it was submitted that the prosecution simply have to live with the fact that it may look like the man being now accused of murder was concerned about the welfare of the deceased.
Analysis and conclusion
The prosecution case is that the accused knew he had stabbed the accused at the moment he thrust the knife into his body. The prosecution argues that the fatal blow was deliberately delivered. The prosecution seeks to lead the evidence under challenge as amounting to an admission that the act was a deliberate one.
In my opinion the evidence does not go far enough in its nature and content to amount to an admission. In forming this conclusion I have considered ‘the whole of the evidence’, pursuant to s 20 (2)(b) of the Act.
The evidence in question is capable of assisting in the conclusion that after the accused had retreated into his house he had knowledge that the knife he had been holding had injured the deceased. There is evidence that the accused became aware there was blood on the knife, after the altercation had ended on the porch. That said, there is no dispute that the knife held by the accused inflicted the fatal injury. The question under consideration is whether on the whole of the evidence the evidence is reasonably capable of being viewed by the jury as evidence of incriminating conduct, namely that the four attempted telephone calls, and the SMS message, can be so regarded.
As can be readily seen, the four attempted telephone calls contain no narrative that could have not only informed the jury as to what was actually said, and from which the purpose of the communications might have been established. The absence of evidence in this respect means the prosecution case must seek the jury to draw the inference as to why the communications were attempted. Further, in my opinion the language used in the SMS message does little to determine what intention lay behind that communication.
In my opinion this absence of a narrative in the four attempted calls, and the words actually used in the SMS message, stands in the way of the prosecution using the evidence for the purpose sought. There is nothing in the surrounding circumstances that illuminates what the intention of the accused was. In my opinion the jury would have to engage in speculation to form a conclusion as to the intended meaning and purpose behind the sending of the communications by the accused.
Does the evidence under consideration have relevance to a fact in issue? The accused concedes that the evidence has relevance to the sequence of events. Given the somewhat neutral nature of the attempts to call the deceased, and the words of the SMS message sent, I presently have reservations that the evidence has relevance to a fact or facts in issue, however at this stage I will permit the evidence to be led. Depending on the course of events at the trial, the evidence may take on a different character altogether.
I note that as presently drafted the Notice does not assert circumstances that go to an issue between the parties – that is, whether there was intention, whether the actions were deliberate or an accident, or whether the accused acted in self-defence.
As things presently stand, I am not persuaded that the evidence is capable of informing the jury about the state of mind of the accused at the relevant time, which fortifies my opinion that at this point I am not satisfied it is capable of amounting to evidence which incriminates the accused.
Accordingly, I will disallow the prosecution from relying on the challenged evidence as evidence of incriminating conduct. However, depending on how the trial plays out, that opinion may change, and the issue can be re-ventilated at the end of all the evidence, if needs be.
Accordingly, I propose to wait until the close of the evidence in order to determine whether the prosecution can use the evidence as sought by the Notice. I will not permit the prosecution to open the evidence to the jury as incriminating conduct.
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