R v Yavuz (No. 3)

1. [1]

   The accused is charged with murdering Charlie El-Azzi on 13 November 2015.

2. [2]

   The Crown case, in summary, is that the accused was sitting in a passenger seat of a car with his girlfriend. The deceased walked up to the passenger side window and then walked around the vehicle looking at it. The accused then asked the deceased if he was okay, to which the deceased replied:

3. [3]

   Thereafter, the deceased threw two punches at the accused through the open car window and they connected with the accused’s head. The accused got out of the car and, when the two men were on the nature strip, the deceased proceeded to attack the accused. The altercation proceeded for a short period of time until the accused managed to get away from the deceased. The accused then made his way to his own home on foot and at some point the deceased went to his house which was near to that of the accused.

4. [4]

   Subsequently, the accused went to the deceased’s property with a knife he had retrieved from his own house. It is alleged the accused called out to the deceased to come out and apologise to him. When that did not happen the accused approached the deceased who was sitting on the front steps of his house and stabbed him just below the collarbone near the heart.

The triple 0 call and the discharge of the jury

1. [5]

   One of the significant witnesses to the stabbing of the deceased was Youness Elmrabt. Mr Elmrabt was a plumber’s apprentice who was working at the adjoining property. In his evidence, Mr Elmrabt said that he called triple 0 from his mobile phone, asked for the police, and told the operator what had happened.

2. [6]

   Mr Elmrabt also gave evidence that, after the fighting between the accused and the deceased stopped on the first occasion, the accused ran back towards Roberts Road:

3. [7]

   Mr Elmrabt gave evidence of what was said when the man returned:

4. [8]

   Mr Elmrabt was cross-examined by Mr Littlemore QC for the accused. Mr Littlemore challenged Mr Elmrabt’s honesty and credibility. The detail of the challenge is set out in R v Yavuz (No. 2) [2017] NSWSC 1705.

5. [9]

   As that judgment made clear, on the sixth day of the trial and at the end of the Crown case the Crown sought to tender a DVD containing a triple 0 call made by Mr Elmrabt together with a transcript of that call.

6. [10]

   I refused the Crown’s application to tender the triple 0 call and transcript with the result that the Crown sought a discharge of the jury. I acceded to that application and the reasons for so doing are set out in R v Yavuz (No. 2).

7. [11]

   During the argument in relation to a discharge the following exchange occurred:

8. [12]

   The accused now seeks an order that the proceedings be stayed until costs thrown away by the discharge of the jury are paid by the Crown. Those costs are said to total $112,090 made up as follows:

9. [13]

   The trial commenced on 27 November 2017. On that day the solicitor for the accused had a telephone conversation with the solicitor from the DPP in which the accused’s solicitor requested a copy of the triple 0 call made by Mr Elmrabt. The solicitor received an email from the DPP attaching a transcript of two triple 0 calls, those made by Mirna El Azzi and the other by Sevdail Ramadani.

10. [14]

    The trial re-commenced with a new jury on 28 November. On 29 November Mr Elmrabt gave evidence and was cross-examined. When he asserted that he had made a triple 0 call Mr Littlemore called for the transcript or record of that call. The Crown Prosecutor replied:

11. [15]

    On Monday 4 December, the sixth day of the trial, the Crown said that further enquiries were successful and that a copy of the triple 0 call was available. The Crown said that it had been served on the previous Friday.

12. [16]

    The following day the Crown called Detective McCann, the officer in charge of the case. She gave evidence that a computer request was made through iAsk to obtain all triple 0 calls with respect to the matter. She received a file which contained the two calls already referred to. She was asked if she made any further enquiries but she said that she did not. She assumed that they had sent all that they had. She only enquired further after Mr Elmrabt had given his evidence and the call had been made for the transcript and the recording of the call.

13. [17]

    At the end of her cross-examination she gave the following evidence in answer to questions from me:

Submissions

1. [18]

   The accused submitted that there were statutory requirements on the Crown to make available the evidence on which the Crown would rely. Reference was made to sections 75, 141, 142(1)(j), 147 and 148 of the Criminal Procedure Act 1986 (NSW). In addition, there was an obligation under the ODPP Guidelines in relation to disclosure by prosecutors.

2. [19]

   The accused pointed to the importance of the particular evidence of the triple 0 call by Mr Elmrabt, something which the Crown acknowledged at the time the Crown sought to tender the evidence. The accused then submitted that the evidence was not served in due time as a result of the fault of the Crown although no allegation of mala fides was made.

3. [20]

   The accused submitted that the Crown’s fault in that regard led to unfairness on him because he was not in a position again to fund legal expenses of another trial. Finally, the accused drew attention to the legal principles that applied to such an application, particularly those set out in R v Carbone (No. 2) [2017] NSWSC 346.

4. [21]

   The Crown submitted that the facts in the present case differed markedly from the facts in Carbone and in R v Michael John Issakidis [2015] NSWCCA 834. The Crown pointed out that in Issakidis, the accused was facing his fourth trial.

5. [22]

   The Crown submitted that the omission to serve the triple 0 call, whilst most regrettable, was not something which could be categorised as delinquent, unconscionable or grossly unfair. It involved no mala fides. In that way, the case was distinguishable from cases like Carbone and other cases referred to in that judgment.

6. [23]

   The Crown submitted that the costs sought are unreasonable. It was submitted that there was no need for both senior and junior counsel as the matter was not overly complex. The Crown pointed to the first discharge of the jury as a result of the accused’s senior counsel’s opening. The Crown submitted that the costs of preparation were not thrown away because it was a requirement for any trial and would not need to be undertaken afresh.

Nature of the Crown’s fault

1. [24]

   In Carbone (No. 2) I discussed the various authorities. It is not necessary to repeat all that I said there. It is sufficient to note the most recent authoritative statement about what is required to obtain a stay until costs are paid in Lee v Attorney-General for NSW [2017] NSWCCA 27, where Hoeben CJ at CL (with whom Latham and Price JJ agreed) said:

2. [25]

   In my opinion the Crown’s failure here was more than a simple fault. When the Crown applied to discharge the jury, the significance of the evidence of the triple 0 call was stressed again and again. The Crown described it as “a fundamental part of the Crown case”, “so highly probative”, “powerful evidence which supports the main witness”, and “critical evidence”.

3. [26]

   That was obviously the case. Mr Elmrabt was the principal witness who would give evidence of hearing the accused threaten to kill the deceased. It is difficult to think of more critical evidence than a triple 0 call made contemporaneously with the events and which corroborated Mr Elmrabt’s oral evidence.

4. [27]

   The officer in charge knew that Mr Elmrabt claimed to have made a triple 0 call from as long ago as 2015. Simply to make a computer request for all relevant triple 0 calls and thereafter not to check to see that the crucial call had been received goes beyond a simple fault.

5. [28]

   Although Detective McCann accepted that it was her responsibility to make sure that all of the evidence was in, I consider that it is most unsatisfactory, if it is the case, that no solicitor at the DPP ever ensured that all of the evidence which would be needed at the trial was available. I would have expected that at some point a solicitor would need to ensure that the evidence was available and what evidence was there was admissible. Detective McCann is not a lawyer. No evidence was given by any person from the DPP to inform the Court what they had done in relation to this matter.

6. [29]

   This was a significant failure on the part of the prosecuting authorities generally.

7. [30]

   In my opinion, this failure was unfair to the accused because it resulted in the discharge of the jury. It is not necessary to reiterate my reasons for considering that that was the appropriate course. My reasons appear in Yavuz (No. 2). The accused is now in the position where he must face a second trial and that means he must outlay the necessary funds for his legal advisors so that that can occur.

8. [31]

   In my opinion, this is a very clear case of the type which is discussed in the authorities to which I have referred.

What costs are payable?

1. [32]

   In Issakidis Beech-Jones J reviewed the authorities on the question of what costs should be payable. His Honour said:

2. [33]

   Other authorities such as R v Fisher (2003) 56 NSWLR 625; [2003] NSWCCA 41 and R v Bucksath [2000] NSWCCA 135 at [28] both refer to the payment of reasonable costs and that the costs should not be indemnity costs.

3. [34]

   I accept the Crown’s submission in relation to junior counsel. This was a relatively straightforward trial estimated to take about two weeks of hearing. The only foreshadowed legal issue was the tendency of the deceased to behave in the way that he did. The accused is entitled, of course, to have both senior and junior counsel represent him but I do not consider that the costs of junior counsel are reasonable costs which the Crown should pay.

4. [35]

   I note that the accused’s claim now omits the costs of the first day of the aborted trial.

5. [36]

   In relation to senior counsel’s fees I would allow $5,000 in total for conferences and further preparation. There is no suggestion that the trial will not proceed exactly as it did previously apart from the introduction of the triple 0 phone call by Mr Elmrabt. The total I would allow for senior counsel’s fees is therefore $59,000 together with GST at $5,900.

6. [37]

   As far as solicitors fees are concerned there is no suggestion of any pre-trial court appearances before the resumed trial. I consider that any further preparation on the part of the solicitors for the resumed trial would be minimal. I would allow in total $2,000 for conferences and preparation by the solicitor. The solicitor’s costs are therefore allowed in the sum of $14,000 together with GST at $1,400.

7. [38]

   In my opinion it would be reasonable for the Crown to pay the accused’s costs in the sum of $80,000 being costs thrown away by senior counsel and solicitors in respect of the aborted trial.

8. [39]

   Accordingly, I make the following orders: