R v Yavuz (No. 1)

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

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:

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.

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 jury was empanelled and the Crown opened the case to the jury. Mr Littlemore QC then opened his case to the jury. During the course of so doing Mr Littlemore said the following:

Mr Littlemore then gave the accused’s account of how it was that the deceased was stabbed. He said it was not an intentional act at all and was certainly not done with the specific intention to kill or to cause really serious injury. He then went on to say this:

At the conclusion of Mr Littlemore’s address, and in the absence of the jury, the Crown submitted that the jury should be discharged on the basis that Mr Littlemore’s address breached s 159(2) of the Criminal Procedure Act 1986 (NSW).

The Crown submitted that the opening address by defence counsel was more in the nature of a closing address. The Crown submitted it was argumentative and put propositions that were entirely speculative such as that the deceased was on ‘ice’ when there was no evidence to support that. The Crown submitted that a further basis for the discharge was the repeated reference to the accused being of good character. When I enquired if that was in fact the case Mr Littlemore informed me that his instructions were inadequate. The true position was that the accused had a prior conviction for assault occasioning actual bodily harm.

The Crown also objected to Mr Littlemore referring on a number of occasions to whether the accused had a murderous intention. The Crown submitted that to speak in terms of a murderous intention simply misstated the law.

After some debate Mr Littlemore said that he considered himself bound to ask for a discharge because of what he described as his own error. I took that to be a reference to asserting, on the basis of the instructions he then had, that his client was of good character.

I indicated to the parties that I considered that the jury should be discharged and, at the Crown’s request, I would provide reasons at a later time. I then had the jury brought back to court where I discharged them. These are my reasons for so doing.

Section 159 of the Criminal Procedure Act relevantly provides:

In R v MM [2004] NSWCCA 81; (2004) 145 A Crim R 148 Howie J discussed s 159, including the Law Reform Commission report from which the section originated, and the Second Reading Speech when it was enacted. His Honour then said:

Having then dealt with the address by the Crown in that case, his Honour said that since writing that part of his judgment dealing with s 159 he had become aware of a decision of R v Hansen (2002) 84 SASR 54; [2002] 84 SASR 54; 134 A Crim R 227 in the Court of Criminal Appeal of South Australia. His Honour then referred to the address by two defence counsel in Hansen and said this:

In my opinion, defence counsel’s address in the present case did not comply with s 159(2). It went well beyond setting out the real issues in the trial and what the accused might say in answer to the Crown’s allegation. It involved reference to the onus and standard of proof, it delved into a critique of evidence which the Crown had indicated was likely to be given by Crown witnesses and, in that way, highlighted in advance of the prosecution case what was said to be weaknesses in it.

There were three specific matters of concern. The first was the reference to it being highly possible that the deceased was on ‘ice’ at the time of the altercation which was said to be an “awful drug that has ruined so many lives and enraged so many people into appalling conduct” and, additionally, the assault by the deceased was said to have been carried out when he was “under the influence of dreadful, illicit drugs, indeed, a cocktail of drugs”.

What appears from the toxicology report that forms part of the post mortem report is that Delta-9-tetrahydrocannabinol and Delta-9-THC acid (both of which I understand to be derivatives from cannabis) were detected in the deceased’s blood. However, no amphetamines were detected. The accused relied on the LC-QTOF-MS test which, it is suggested, showed that methamphetamine and amphetamine were detected in that screen test. That inference appears to derive from a two page document listing more than 150 drugs with different but minute quantities recorded. At the time I heard argument in this matter neither party intended to call any person to explain the meaning of this document. In the absence of such evidence it is speculative to infer that the document points to amphetamine or methamphetamine in the deceased’s system.

It does not appear that Mr Littlemore intends to lead toxicological evidence. He said that he intended to cross-examine Dr Irvine, the pathologist about those matters. He also anticipated Dr Irvine would say, when asked, that the antidepressant drug Desvenlafaxine produces mania. Mr Littlemore indicated that he had medical literature which he would be putting to Dr Irvine in that regard.

Apart from the statements about ‘ice’ and the antidepressant drug in their terms going beyond what I consider s 159 permits, I am by no means persuaded at the present time that what toxicological evidence there is will support the statements that the deceased was “possibly” on ‘ice’ or was in fact suffering mania from the antidepressant drug.

First, Dr Irvine is a pathologist and may claim to have no expertise in toxicology. Mr Littlemore may not get the support from Dr Irvine that he hopes, and it is not known what any other expert who might be called will say about these matters. Secondly, it is one thing for mania to be a known side-effect of the drug Desvenlafaxine. It is another to prove the drug had caused mania in the deceased at the time of the altercation. I have seen no evidence to support that.

Subsequent to argument and prior to finalisation of these reasons the Crown said that a toxicologist would be called. However, what evidence will be given by the toxicologist has not yet been disclosed. Whether the deceased had amphetamine in any form in his blood remains entirely speculative. So too does the effect of Desvenlafaxine in producing mania, and whether it did in the deceased.

It is no answer to say that the accused is hoist by his own petard if those matters do not come up to proof. The prejudice in the jury’s mind would be considerable, particularly because of the way ‘ice’ and the other drugs were described by Mr Littlemore and because of community perceptions about ‘ice’ in particular.

The second matter concerned the accused’s character and antecedents. When the jury has been told twice that the accused was of good character and had never been in any trouble of any kind or charged with a crime, it would not be fair to the accused for that position to be corrected and his criminal record disclosed. The Crown Prosecutor rightly submitted that she wanted to ensure the accused had a fair trial.

Since Mr Littlemore himself subsequently asked for the jury to be discharged, for this reason it is not necessary to say anything further about this matter.

The third matter concerned the following. Mr Littlemore said this:

The Crown submitted that referring to a “murderous intention” misstated the law because, of course, it was not necessary for the accused to have an intention to kill – it would be sufficient to have an intention to cause grievous bodily harm.

Although the Crown had referred to the alternative states of mind embraced by murder and Mr Littlemore had made mention of it in the first passage I have quoted, that was very likely to be lost by the perhaps unfortunate use of the term “murderous intention”. Whilst lawyers understand murder can be committed in circumstances where a person only intends to inflict grievous bodily harm, most lay people are likely to have the view that to be guilty of murder one needs an intention to kill. That is what “murderous intention” would be understood as meaning.

The entitlement to an address provided for in s 159 is in addition to, but is to be contrasted with, the opening which the defence is entitled to present at the conclusion of the case for the prosecution and before calling any evidence. The present address went beyond what is permissible for either of those opening addresses. A good deal of the material was appropriate only for a closing address.

These reasons form the basis for my decision to discharge the jury.