Re Mayhoub (Ruling No 5) - [2020] VSC 214

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0286

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:	17 May 2021
CASE MAY BE CITED AS:	Re Mayhoub (Ruling No 5)
MEDIUM NEUTRAL CITATION:	[2020] 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…

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 5)

Details

AGLC: Re Mayhoub (Ruling No 5) [2020] VSC 214
Case: [2020] VSC 214
Decision Date: 17 May 2021

CaseChat Overview and Summary

In the case of Re Mayhoub, the defendant faced a charge of murder, accused of stabbing a victim in the chest. The prosecution proposed to rely on certain evidence as incriminating conduct, which included the defendant's attempts to contact the deceased on four occasions and sending a text message to the deceased after the alleged stabbing. This matter was brought before the court to determine the admissibility of this evidence under the relevant provisions of the criminal law.

The primary legal issue before the court was whether the proposed evidence of the defendant's attempts to contact the deceased and the subsequent text message could be considered as incriminating conduct. The court had to assess whether such evidence could be admitted to show the defendant's consciousness of guilt in relation to the alleged offence.

The court determined that the prosecution was not permitted to open the evidence to the jury as incriminating conduct. However, the decision on whether this evidence could be used as incriminating conduct was deferred until the close of all the evidence. The court recognised the potential relevance of the defendant's actions following the alleged stabbing, but also acknowledged the need to consider the broader context and the admissibility of such evidence under the criminal law.

The court's ruling did not definitively exclude the evidence from being considered as incriminating conduct but rather deferred the decision until a later stage in the proceedings. The defendant's right to a fair trial and the potential impact of this evidence on the jury's assessment of the case were central considerations in the court's reasoning.

Orders