Re Mayhoub (Ruling No 7) - [2021] VSC 293

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:	20 May 2021
DATE OF JUDGMENT:	24 May 2021
CASE MAY BE CITED AS:	Re Mayhoub (Ruling No 7)
MEDIUM NEUTRAL CITATION:	[2021] VSC 293

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CRIMINAL LAW – Ruling – Charge of murder – Accused alleged to have stabbed victim in the chest – Hearsay Notice pursuant to s 67 Evidence Act 2008 – Application for exclusion of hearsay evidence – Evidence Act 2008 ss 67, 65.

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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

On 19 May 2021, the prosecution served a Notice of its intention to adduce hearsay evidence through the witness Neriman Oksuz (‘Mrs Oksuz’) pursuant to s 67 Evidence Act 2008 (‘EA’). Mrs Oksuz is the wife of the deceased, Bunyamin Oksuz, (‘Mr Oksuz’).

The evidence sought to be adduced are previous representations alleged to have been made by Mr Oksuz. The Notice states the intention to lead the previous representations by a person to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

The prosecution assert in the Notice that Mr Oksuz, the representor, is unavailable to testify as to the representations he is alleged to have made as he is now deceased. Therefore, the prosecution seek for the evidence to be led pursuant to s 65 EA, on the basis that the person who made the previous representations is not available to give evidence about the asserted facts.

This ruling addresses whether the alleged representations are permitted to be led by the prosecution in the trial of Samir Mayhoub [‘the accused’].

The prosecution case

I have previously made a number of rulings in respect of this matter which have discussed the prosecution case.[1] For current purposes it is unnecessary to restate and summarise the prosecution case any more than is necessary to understand this ruling.
[1]DPP v Mayhoub (Ruling No 1) [2020] VSC 641.
DPP v Mayhoub (Ruling No 2) [2020] VSC 643.
DPP v Mayhoub (Ruling No 3) [2020] VSC 644.
DPP v Mayhoub (Ruling No 4) [2021] VSC 269.
DPP v Mayhoub (Ruling No 5) [2020] VSC 214.

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 attempts to obtain the money, including calling and sending the accused text messages and…

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 7)

Details

AGLC: Re Mayhoub (Ruling No 7) [2021] VSC 293
Case: [2021] VSC 293
Decision Date: 24 May 2021

CaseChat Overview and Summary

In the case of Re Mayhoub, the respondent was charged with the murder of an individual. The prosecution alleged that the respondent had stabbed the victim in the chest. The matter was heard in the court of appeal, where the respondent sought to exclude hearsay evidence presented by the prosecution. The court was required to determine whether the hearsay notice provided by the prosecution was sufficient and whether the hearsay evidence should be excluded under the Evidence Act 2008.

The primary legal issue before the court was whether the hearsay notice provided by the prosecution complied with section 67 of the Evidence Act 2008. The court considered whether the notice adequately described the evidence, identified the person from whom the evidence originated, and outlined the grounds on which the evidence was to be relied. Additionally, the court had to determine whether the hearsay evidence should be excluded under section 65 of the Evidence Act 2008, which provides exceptions to the hearsay rule.

The court found that the hearsay notice provided by the prosecution was sufficient and complied with the requirements of section 67 of the Evidence Act 2008. The court noted that the notice contained the necessary details to allow the respondent to effectively respond to the evidence. The court also concluded that the hearsay evidence was admissible under section 65 of the Evidence Act 2008, as it fell within one of the exceptions to the hearsay rule. The court held that the evidence was not excluded, and the appeal was dismissed.

As a result, the court upheld the decision of the lower court and confirmed that the hearsay evidence could be used in the trial. The respondent's application to exclude the hearsay evidence was denied, and the matter proceeded to trial with the hearsay evidence being admissible.

Orders