Re Mayhoub (Ruling No 7)
[2021] VSC 293
•24 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: | 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 attending his house with his wife, Neriman Oksuz, on 20 May 2019.
When the deceased and Kaya arrived at the house, the accused opened the front door and an argument occurred on the outside porch, followed by a brief physical altercation amongst the three men inside the house, after the deceased and Kaya had gained entry. Mrs Mayhoub then ejected the deceased and Kaya from the house onto the front porch. Kaya left the porch shortly after emerging from the house, and moved away some distance. Meanwhile, the accused had obtained a knife from inside the house and went back on to the porch where the argument continued, in the presence of Mrs Mayhoub. The argument became violent with Mrs Mayhoub becoming physically involved in the events, coming between the accused and the deceased. Despite attempts by Mrs Mayhoub to de-escalate the conflict, it is alleged that the accused stabbed the deceased’s chest during the course of the struggle that had developed. The accused then retreated inside and closed the front door. The deceased left the porch and collapsed onto the road outside the accused’s house, where he died shortly after.
It is alleged that Mrs Oksuz received a communication informing her that her husband had been involved in events at the accused’s home, as a result, she attended the scene. It is evident that she was present and witnessed her husband receiving treatment from paramedics and other people. Other aspects of the evidence that will be called at the trial make it clear that during these events she was extremely upset and distraught at what was occurring.
Mrs Oksuz made a sworn statement to police on 18 November 2019 in which she deposed a number of matters concerning her husband’s business activities, and the arrangements and relationship that existed between the accused man and her husband. More particularly, she gives evidence about the nature of the relationship that developed between the two men following a dispute over the payment of money for work performed, as briefly discussed above.
The defence response
In his Response to the Summary of Prosecution Opening, the accused concedes that the deceased died as a result of a single stab wound to his chest, caused by a knife wielded by him. The accused denies having 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. The accused asserts that the knife accidently entered the deceased’s body during the physical struggle between the three persons on the front porch of the accused’s home.
Further, the accused asserts that the deceased attended his house with Kaya because he sought, by whatever means, to get the accused to pay the money to which the deceased claimed he was entitled.
For the purposes of this Ruling, it may be noted that the accused admits that he and his wife engaged the deceased to perform cabinetry work; that he attended the accused’s residence a number of times in 2017 – 2018 for the purpose of undertaking cabinetry work; that the deceased rendered invoice/s for the said works; that he paid the deceased some sums towards the said invoice/s; and, that the deceased claimed the sum of $8,400 was outstanding in respect of the said works.
The Hearsay Notice
Pursuant to s 67(1) EA, a party intending to adduce evidence pursuant to s 65 EA must give reasonable notice in writing of the party’s intention to adduce the evidence, and must state a number of matters within the notice.
The Notice sets out the name of the person who made the previous representation, and who is unavailable to testify, as Bunyamin Oksuz. As above, the basis for this unavailability is that he is deceased.
The Notice further sets out that the provisions of the EA on which the prosecution rely that set out the relevant exceptions to the rule against hearsay are s 65(2)(b) and s 65(2)(c) of the Act.
Further, the Notice attaches Tables A and B, providing particulars of the date, time and place and the circumstances in which each of the five previous representations were alleged to have been made, as well as the person who saw, heard or perceived the previous representation being made, namely, Mrs Oksuz. A copy of the Notice, including Tables A and B is attached to this Ruling for ease of reference. In those circumstances I do not propose to set out the detail of each representation within this Ruling.
Submissions for the prosecution
The prosecution submits that the five representations are admissible and can be led before the jury. The prosecution seeks to call the evidence to establish the narrative of an ongoing disagreement between the accused and the deceased about the non-payment of money. It is argued that it is general evidence, with the witness not discussing the conversations that occurred, but about the non-payment of money; that there were phone calls that were not answered; that there were WhatsApp communications and that there was an agreement for the deceased to attend the accused’s house on 20 May 2019. Accordingly, it is a narrative that is sought to be put, not by way of any detail of the conversations between the accused and the deceased.
It is submitted that the evidence is largely uncontroversial and there appears to be no issue taken that there was an ongoing disagreement between the two men. The prosecution assert that this evidence goes to explain the ongoing disagreement within the context of the relationship between the two men involved in it. Thus, it is submitted that there is nothing prejudicial in the narrative, and that it simply shows what the dispute was about, and provides some context to the text messages that the jury will have before them.
It is submitted that the five representations set out in the Notice should come as no surprise to the accused, it being evident that they were matters the prosecution always maintained would be led before the jury, as reflected in the substance of Ruling No 2[2] made in this matter. Counsel for the prosecution referred the Court to aspects of the Notice, and explained in more detail what was sought to be led as hearsay, and what was not to be led. It was submitted that in conformity with Ruling No 2,[3] the evidence sought to be led goes to the nature of the relationship between the two men, and the nature of the disagreement, being something relevant for the jury to understand. It was submitted that it was being abundantly cautious to file a Hearsay Notice, which followed earlier evidence given by Mrs Oksuz in which it was made clear where the line was drawn between first and second hearsay evidence.
[2]DPP v Mayhoub [2002] VSC 643R, at [8]
[3]Ibid.
With respect to the application of s 67 EA, and whether or not it is highly probable that the representations were reliable, it was conceded that there is no evidence when particular conversations happened but that the inference could be drawn that they happened around the time the disagreement was going on between the two men. Next, it was submitted that in the assessment of whether or not it was highly probable that the representations are reliable, the prosecution relied on the WhatsApp messages that went back and forth, and although not going to the circumstances of the making of the representations, it was nevertheless suggestive that the representations were reliable. Next, it was submitted that there is evidence of Mrs Oksuz that she had an active role in the business, that she was present, and that she was involved in keeping the books. Accordingly, it was submitted that it was reasonable to conclude that Mr and Mrs Oksuz were running the business side of things together, and this was relevant in an assessment of whether the representations were reliable, and whether it was highly probable that they were reliable.
Finally, it was noted that the issue of the disagreement that occurred between the accused and the deceased is not challenged by the defence, as being relevant to the determination of this application.
Submissions for the accused
The accused objects to the five hearsay representations being led in evidence. First, it is submitted that reasonable notice pursuant to s 67(1) EA was not provided, in that the Notice was provided the day before the evidence of Mrs Oksuz was to be pre-recorded. It is submitted that the Court should reject the Notice in the circumstances.
As a preliminary argument, it is submitted that Mrs Oksuz should not give evidence in this trial at all on the basis that she is a grieving widow, and it is problematic from the defence perspective that she should give evidence, particularly as what is proposed to be led pursuant to the hearsay notice largely amount to uncontroversial facts. It is pointed out that there are a series of text messages and invoices, which should be capable of satisfying the need to call evidence about the disagreement. Further, there is objective evidence that the deceased and his wife went to the accused house on 20 May 2018. Additionally, the evidence that Mrs Oksuz gave on a s 198B hearing demonstrated that there are issues with her language and memory, as well as some inconsistent accounts of events that add to the defence’s reluctance to cross-examine her in front of the jury. It is submitted that there is no need to call her in circumstances where she is not an eyewitness to events and she does not provide a narrative flowing from eyewitness account, all events that are central to what occurred.
With respect to the application of s 65(2(b) EA the accused referred to Azizi v The Queen[4] and submitted that in order for this provision to be enlivened, ’there must be evidence before the court to enable a judgement to be made as to the temporal connection between the occurrence of the asserted fact in the making of the representation’. In Azizi[5] the court concluded that there was no evidence as to when the asserted fact occurred relative to the representation being made so that the question of whether there were circumstances that made it unlikely that the representation was a fabrication. Further, the court stated that the provision, ‘cannot be applied to this representation so as to render the hearsay rule inapplicable to it without some evidence as to whether the representation was made at the time or shortly after the events described occurred’. The court concluded that without such evidence the provision could not be applied.[6]
[4][2012] VSCA 205; 224 A Crim R 325 at [47].
[5]Ibid.
[6]Azizi v The Queen [2012] VSCA 205; A Crim R 325.
Accordingly, it was submitted that within Table A there are no details of date, place or circumstances of the representations alleged to have been made. It is argued there is no evidence about when the conversations happened and therefore no evidence as to their relationship to the asserted facts.
It is submitted that the Crown’s argument that the use of the WhatsApp messages to aid in making it highly probable that the representations were reliable falls on the concession being made by the Crown that the messages do not go to the circumstances of making the representations. Counsel argues that that amounts to a proper concession. Further, the circumstances surrounding the representations alleged to have been made to Mrs Oksuz cannot be evaluated.
With respect to the application of s 65(2)(c) EA the accused again referred to Azizi v The Queen[7] and submitted that all although this provision does not require a temporal connection to be made, making it unlikely that the representation is a fabrication, nevertheless an additionally high burden rests on the applicant to show that the representation was made in circumstances making it highly probable that the representation is reliable. Referring to Azizi, Counsel pointed to the principle that, ‘there must be evidence of the circumstances which make it not just probable but highly probable that the representation is reliable’.[8] Counsel also referred to the decision in R v Ambrosoli,[9] as cited in Azizi, in which the New South Wales Court of Criminal Appeal stated:
I would however, emphasise that prior or later stage or conduct of the person making the previous representation are only to be considered to the extent that they touch the reliability of the circumstances of the making of that previous representation. If they do no more than tend to address the asserted fact or ultimate issue they have no bearing on the issues presented by s 65(2).[10]
[7]Ibid.
[8]Azizi v The Queen [2012] VSCA 205; A Crim R 325 at [48] to [50].
[9]R v Ambrosoli (2002) 55 NSWLR 603.
[10]Azizi v The Queen [2012] VSCA 205; A Crim R 325 at [50].
It was submitted that Azizi makes clear, ‘the high probability of the reliability of the representation for the purposes of s 65(2)(c) rests on the party seeking to invoke the section’. Referring to the relevant representation in that case, the court concluded that without any further information about the circumstances in which the representation was made, there was no basis for concluding that it met the criterion set out in the section.
It is submitted that another matter relied on by the Crown to the effect that Mrs Oksuz had an active role in her husband business, was not supported by the evidence. The evidence is that she helped with cleaning in the factory, and would make coffee and food for people. Further, in Mrs Oksuz’s statement she said that her husband would take care of the business and would send the accounts and receive payment. It was submitted that there was no part of her account in which she said she was co-running the business. As to whether she had a fair idea of money that was owed, it was pointed out that her evidence as to this information came directly from her husband.
It was pointed out that the first representation in Table A amounted to an assertion that the accused owed the representor money for cabinetry work rather than being a statement by the deceased made to Mrs Oksuz that he was in fact owed money. Similarly, it is submitted that the second representation falls into the same category, and does not amount to a representation but rather an assertion about a state of affairs.
Accordingly, the reasons set out above, it was submitted that of the five representations set out in Table A, neither s 65(2)b) or s 65(2)(c) can be enlivened, there being no material by which the Court can assess the circumstances of the representation against the asserted fact. Rather, it is submitted that the matters sought to be placed before the jury can be done in a neutral way, avoiding the need to call the witness.
Conclusions
It is regrettable that the Notice required by s 67(1) was provided to the accused only a short time before the witness was due to give her evidence. However, the evidence from the witness was deferred and is now to be pre-recorded prior to Counsel opening their respective cases in this matter. In those circumstances what might have been an unreasonable timeframe for the accused to respond, in my opinion no longer applies. There is now adequate time for the accused to consider the evidence of this witness, particularly given that it appears to me that some aspects of the evidence sought to be led appear to be not so controversial.
Accordingly, I shall not reject the Notice on the basis that the prosecution has not given reasonable notice.
In circumstances where the maker of a previous representation is not available to give evidence about asserted fact, s 65 EA permits the previous representation to be given by a person who saw, heard or otherwise perceived the representation being made. This is subject to either s 65(2)(b) or s 65(2)(c), or both, being satisfied.
Both s 65(2)(b) and s 65(2)(c) were discussed in Azizi v The Queen, cited above. Both subsections are enlivened by different matters, however both are underpinned by the broad in-principle approach that the evidence to be admitted under the section is reliable. Thus, under s 65(2)(b) particular focus is given to whether there is evidence before the Court to enable a judgement to be made as to the temporal connection between the occurrence of the asserted fact in the making of a representation which makes it unlikely that it is a fabrication. Under s 65(2)(c), whether there is evidence before the Court of the circumstances which make it highly probable that the representation sought to be led is reliable.
Both subsections require the Court to consider what evidence there may be to assist in making the necessary judgements.
First, in respect of the five representations as set out in the Notice, the circumstances of each representation are stated to be, ‘representation made during a conversation/s with the representor’s wife, Neriman Oksuz’. No further specification of circumstances is set out. However, Table B to the Notice sets out paragraph references in which it is asserted each representation may be found in the statement of Mrs Oksuz.
As a preliminary observation, in my opinion, Representation 1 as set out in the notice, when compared to paragraph 18 of Mrs Oksuz’ statement, although perhaps ultimately capable of amounting to a representation made by Mr Oksuz that the accused owed the deceased money for cabinetry work, and that he requested the accused to pay him a sum of money for that work, the alleged representation as asserted does not reflect the evidence that appears in paragraph 18 of Mrs Oksuz’ statement. Accordingly, I will not permit it to be led in evidence pursuant to the Hearsay Notice.
More broadly, in the case of the remaining four representations detailed, it is conceded by the prosecution that no particular time can be identified when the representations were made. It would appear that they would have to have been made at some time after the cabinetry work finished, following which there appears to have been a growing dispute between the deceased and the accused as to payment over 2018, and up to when the fatal events occurred.
To have application, s 65(2)(b) provides that the previous representation given by a person who saw, heard or otherwise perceived the representation being made, was made when or shortly after the asserted fact occurred, and in circumstances that make it unlikely that the representation is a fabrication. In my opinion there is insufficient evidence to conclude that the representation was made at the time or shortly after the event described occurred, and without that evidence the section cannot be applied. Accordingly, I cannot conclude that the evidence is admissible pursuant to the application of s 65(2)(b) EA.
Turning to the application of s 65(2)(c) and the requirement that the circumstances make it highly probable that the representation is reliable, the statements would be relevant only, ‘to the extent that they touch the reliability of the circumstances of the making of the relevant representation’. There must be information as to the circumstances in which each of the representations was made. Applying the principle outlined in Ambrosoli,[11] there is at least some information as to the circumstances in which the representations were made. Each appears to have been made in circumstances where there was an ongoing dispute over payment of money between the accused and the deceased, there were a series of messages over a considerable period of time, an invoice was sent, Mrs and Mrs Oksuz attended the accused’s home on 20 May 2019, and Mr Oksuz and Kaya went to the accused’s home on 22 May 2019.
[11](2002) 55 NSWLR 603.
Furthermore, the accused in his record of interview conducted on 23 May 2019, spoke in considerable detail about the arrangement entered into between the two men for cabinetry work to be done at the accused premises, and agreed that there was an ongoing dispute as to the payment of money, and that the deceased had requested the payment of what he considered to be the balance of $8,400 which was outstanding.
With the above observed, as to the application in the current circumstances, s 65(2) is enlivened by a previous representation having been made by a person, in this instance, the deceased Mr Oksuz. In the case of the four representations set out in the Notice none appear to me to amount to examples of representations that qualify under the provision. At no point in her statement does Mrs Oksuz explicitly say that her husband stated the matters to her that are said to have amounted to his representations. I have carefully reviewed each of the paragraphs upon which the argued substance of the previous representation is said to rely. In my opinion each item of evidence relied on does not make clear that the deceased made the alleged representation. In each instance it is equally open to conclude that Mrs Oksuz is speaking from her own knowledge and could have been present when the deceased attempted to call the accused; that she was present when the accused stopped answering her husband’s calls, that she was personally aware a reminder invoice was sent in the post, that she was present when her husband and the accused communicated by WhatsApp, and she was present and was personally aware of the matters expressed in paragraph 24 of her statement.
In each instance, it appears to me that nothing stated in her statement provides enough information to conclude that what is sought to be led are actually representations that were made by her husband to her. Bearing in mind a general statement that she made at paragraph 8 that says, ‘I was always there with him’, it seems to me likely that the statement of Mr Oksuz represents a mixture of matters that she was generally aware of as a result of her overall knowledge of the business, that she was aware of the dispute as to outstanding payments as a result of discussing ongoing issues with her husband, and that she may well have become aware of as a result of her own personal level of involvement or presence. As it turns out, her statement lacks specificity as to how any of her knowledge was acquired.
In forming the above conclusion I have taken into account that the Dictionary of the EA provides that a representation includes, ‘a representation to be inferred from conduct’. However, I am not satisfied that in all the circumstances that the matters put forward are fairly to be inferred from conduct of Mr Oksuz as amounting to representations.
Accordingly, I am unable to conclude that any of the five alleged representations comply with what is required under s 65 EA, such that the evidence may be led in conformity with that provision.
In the circumstances, none of the representations can be led in evidence as an exception to the hearsay rule.
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