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Yavuz v The Queen

Yavuz v The Queen

Case [2020] NSWCCA 226 11 September 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Yavuz v R [2020] NSWCCA 226
Hearing dates: 21 August 2020
Decision date: 11 September 2020
Before: Leeming JA at [1];
Johnson J at [65];
Rothman J at [66].
Decision:
1. Grant leave to appeal against the conviction, but dismiss the appeal against conviction.
2. Refuse leave to appeal against sentence.

Catchwords:
CRIMINAL LAW – appeal against conviction and sentence – appellant found guilty of murder – whether verdict unreasonable – whether evidence capable of supporting verdict – sentence of 21 years with non-parole period of 15 years and 9 months – whether error in assessing objective criminality of offence – whether issue of delay properly considered – whether sentence manifestly excessive – appeal dismissed

Legislation Cited:
Criminal Appeal Act 1912 (NSW), s 5(1)(b)

Cases Cited:
Carr v R [2009] NSWSC 995
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MB v R [2013] NSWCCA 254
Pell v The Queen [2020] HCA 12; 94 ALJR 394
R v Brooks (No 5) [2017] NSWSC 824
R v Do (No 4) [2015] NSWSC 512
R v Robert Martin Hicks [2013] NSWSC 1324
R v Ronald Shiels [2011] NSWSC 1177
R v Yavuz (No 1) [2017] NSWSC 1645
R v Yavuz (No 2) [2017] NSWSC 1705
R v Yavuz (No 5) [2018] NSWSC 1796
R v Yavuz (No 6) [2019] NSWSC 95
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81

Category: Principal judgment
Parties: John Can Yavuz (Applicant)
Regina (Respondent)
Representation:
Counsel:
I McLachlan (Applicant)
S Dowling SC, T Krayem (Respondent)
Solicitors:
Matouk Joyner Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/335208
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law - Criminal

Citation:

[2019] NSWSC 95

Date of Decision:

15 February 2019

Before:

Davies J

File Number(s):

2015/335208

Judgment

LEEMING JA: Mr John Can Yavuz, the applicant, stabbed Mr Charlie El-Azzi on 13 November 2015, while he was sitting on the front steps of his house. Although a triple-0 call was made by one of the eye-witnesses almost immediately, and despite the efforts of five paramedics and a doctor, Mr El-Azzi died at the scene. The applicant was taken into custody on that day. He was charged with murder, pleaded not guilty, and ultimately stood trial in the Supreme Court of New South Wales before a judge and jury of 12, three years later, in 2018, after two juries had been discharged in 2017. The jury returned a guilty verdict. He was sentenced to 21 years’ imprisonment, with a non-parole period of 15 years and 9 months, backdated so that the sentence commenced on 13 November 2015. The applicant seeks leave to appeal against his conviction and the sentence imposed.
The appeal against conviction…

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 Yavuz v The Queen

Details

AGLC: Yavuz v The Queen [2020] NSWCCA 226
Case: [2020] NSWCCA 226
Decision Date: 11 September 2020

CaseChat Overview and Summary

In the case of Yavuz v The Queen, the appellant, Yavuz, appealed against his conviction and sentence for the murder of an individual. The dispute was heard in the High Court of Australia. The central issue before the court was whether the verdict of the jury was unreasonable and whether the evidence presented was capable of supporting the conviction. Additionally, the court examined the sentence of 21 years imprisonment with a non-parole period of 15 years and 9 months to determine if there was an error in assessing the objective criminality of the offence. The court also considered whether the issue of delay in bringing the case to trial was appropriately assessed and if the sentence was manifestly excessive.

The court meticulously reviewed the evidence presented at the trial and found that it was sufficient to support the jury's verdict of guilty. The reasoning of the court emphasised that the evidence, including witness testimonies and forensic evidence, was compelling enough to lead a properly directed jury to conclude beyond reasonable doubt that the appellant was the murderer. The court dismissed the contention that the verdict was unreasonable. Regarding the sentence, the court found no error in the assessment of the objective criminality of the offence. It held that the sentence was neither manifestly excessive nor disproportionate to the gravity of the crime, taking into account all relevant factors.

The High Court found no basis to interfere with the sentence imposed by the lower court. It concluded that the trial judge had appropriately considered all relevant matters, including the delay in bringing the case to trial, and had exercised judicial discretion in a manner consistent with legal principles. Consequently, the appeal was dismissed, and the conviction and sentence stood as originally determined.

Orders