R v Yavuz (No. 5)

1. [1]

   At the close of the Crown case Mr Littlemore QC for the accused made an application for a directed verdict. He submitted that taken at its highest, the prosecution evidence cannot establish any fact other than that the accused inflicted a non-fatal stabbing injury on the deceased, and thereafter fled the scene.

2. [2]

   The principles on which a trial judge should direct a verdict of acquittal are well settled. The question is whether, at the time a no case to answer submission is made, the accused could lawfully be convicted on the evidence as it stood at that time: May v O’Sullivan (1955) 92 CLR 654 at 658; Regina v PL [2012] NSWCCA 31 at [31].

3. [3]

   In Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51 the High Court said at 212 and 214-215:

4. [4]

   Further, a judge in a case of circumstantial evidence cannot direct a verdict of acquittal if there is evidence in support of the Crown case upon which the accused can be convicted, even though a reasonable hypothesis consistent with innocence can be formulated: R v JMR (1991) 57 A Crim R 39 at 44.

5. [5]

   Mr Littlemore said that the evidence in relation to the stabbing was relevantly the following:

6. [6]

   Mr Littlemore submitted, on the basis of those facts, that there was no evidence that the fatal wound was inflicted by the accused. He submitted that it was no answer to his submissions that the pathologists considered that there was another wound, which they described as the atypical stab wound, as being the cause of death. He submitted that the descriptions given by Mr Elmrabt and Mrs El-Azzi were of the stab wound to the left clavicular area. He said that they only gave evidence of a single stab wound. He submitted that the evidence disclosed that neither the ambulance officers nor Dr Novy observed the atypical stab wound said to have led to the blood loss and death.

7. [7]

   Mr Littlemore submitted that it was no part of the accused’s responsibility to explain the presence of the atypical wound, whether to suggest that it was caused by the ambulance officers or Dr Novy, or otherwise. He submitted that the evidence did not demonstrate that that injury was the act of the accused.

8. [8]

   In my opinion, there is evidence which can be taken into account by the jury in its deliberations which is capable of supporting a verdict of guilty. I do not consider that the evidence is weak or tenuous or vague.

9. [9]

   This case, as the Crown confirmed in submissions, is both a direct evidence case and a circumstantial evidence case. The direct evidence, relevantly for this application, is the evidence of Mrs El-Azzi and Mr Elmrabt. Both reported seeing a stab to the left clavicular area. The circumstantial evidence, however, includes a number of matters not referred to by Mr Littlemore in the facts which he set out. Those circumstances are these:

1. Mrs El-Azzi and Mr Elmrabt

1. [10]

   It is apparent that Mrs El-Azzi did not see the whole of the altercation between the accused and Charlie. Her evidence was that:

2. [11]

   She was then asked where Charlie was at this point and what John did. She said that Charlie was sitting on the stairs and John pushed the knife in his chest. She said he lunged at him, and she demonstrated a stabbing motion downwards with her right fist and arm.

3. [12]

   That evidence is capable of supporting an inference that the accused inflicted two wounds. The first was the one that had been inflicted by the time Mrs El-Azzi stood up and saw the knife in his chest, and the second being a subsequent thrust as she described. She said that when she ran towards Charlie, John “took out the knife”. The jury may well conclude that “taking out the knife” is not what happened when a fairly superficial wound was inflicted below the left clavicle.

4. [13]

   Mr Elmrabt’s evidence was that the man with the knife went up to the other man who stayed seated and he “stabbed him in his left side of his chest. … He had gone straight in with the knife.” He then described the accused as having “pulled the knife out”. He said the knife was in for a couple of seconds. The jury may also conclude that Mr Elmrabt could not have been describing the superficial wound to the left clavicular area.

5. [14]

   Mr Elmrabt also said that there was a split second where he did not see the accused when he was behind the shrubs just after the stabbing.

6. [15]

   Taken with other matters to which I will come, the evidence of Mrs El-Azzi and Mr Elmrabt is capable of demonstrating that there was more than one stab wound although not expressly described by Mr Elmrabt.

7. [16]

   Both Mrs El-Azzi and Mr Elmrabt said that the knife was dropped as it was being pulled out or taken out, the accused picked it up and ran away. Mrs El-Azzi said that Charlie fell to the side and she cradled him. Mr Elmrabt said that within a couple of minutes blood started coming out of Charlie’s mouth. That evidence was corroborated by Mr Ramadani who saw the man jump the fence and run away. Mr Ramadani then went over to the young man lying down and saw that he was bleeding heavily through the mouth. He commenced CPR on him.

8. [17]

   The evidence of that blood loss and his lapse into unconsciousness is indicative of a stab wound that penetrated much more deeply than the wound to the left clavicular area.

2. Ambulance officers and Dr Novy

1. [18]

   The first ambulance officer to arrive was Matthew Carter with another officer. He described the young man lying down with a lady cradling him in her arms and holding his left chest area. The man was unconscious with no pulse. He started CPR and a large amount of blood started to come from his mouth and nose. That was before any invasive procedures were undertaken.

2. [19]

   The next ambulance officer was Ms Hill who arrived and found the man unconscious, not breathing and in cardiac arrest. She observed a great amount of frothy blood coming from his mouth. That was prior to her performing the first invasive procedure which was a needle thoracostomy.

3. [20]

   When ambulance officer Lisle subsequently arrived, he observed a man lying at the foot of a small set of stairs with his left side towards the steps and his head in an easterly/south-easterly direction parallel with the house. Mr Lisle was jammed in between the steps and the man, whom he did not move in order to perform the finger thoracostomy.

4. [21]

   Dr Novy also arrived at the same time. He said that he did not examine the body for wounds and, having undertaken the clam shell thoracotomy, although he performed a Hilar twist on the left side, he did not examine the left lung for stab wounds. He explained that a Hilar twist is a twist of the left lung around itself to “sort of almost stop the blood going into that side if that is where the wound is”. Basically he said it was to stop or block the hole in the circulatory pathway. Dr Novy’s evidence about not examining the body for wounds gave further credibility to Dr Irvine’s evidence that he could have missed a fatal wound.

5. [22]

   It is clear from the evidence of the various ambulance officers that they were intent on resuscitating the deceased and not inspecting for wounds and lesions. I accept that Mr Lisle said that he did not notice a lesion in that area “getting in [the] way” of his making an incision for the finger thoracostomy and the clamshell thoracotomy, but he did not say he was looking for any such lesion. Further, the position of the deceased provides a ready explanation, in addition to that, for the atypical wound not having been seen at the time by the ambulance officers. It cannot be doubted that it was there because it was found at the autopsy.

3. Dr Irvine and Professor Duflou

1. [23]

   Dr Irvine gave as her expert opinion that the atypical stab wound caused the death of the deceased. Further, it was Professor Duflou’s preferred theory that the atypical wound was responsible for the exsanguinating blood loss that caused death. Both Dr Irvine and Professor Duflou considered that the atypical wound was not caused by the paramedics or Dr Novy.

2. [24]

   Both Dr Irvine and Professor Duflou considered that the wound in the clavicular area did not contribute to death. Professor Duflou said that the sharp force injury that led to the blood loss happened before the paramedics arrived. He said when they arrived the patient was in extremis.

Conclusion

1. [25]

   In circumstances where the atypical wound was considered by the pathologists to be what led to the blood loss and death, and to be present before the ambulance officers arrived, and where the deceased commenced bleeding heavily through the mouth within minutes of being stabbed by the accused, and in circumstances where no other person was near the deceased except his mother and those attempting to help him after the accused left the scene, there is substantial evidence available for the jury to consider whether or not the accused is guilty of murder.

2. [26]

   The presence of that wound is capable of being explained without speculation. It is clearly open to the jury to accept the evidence of both the pathologists that that wound caused the death, and that it must have been caused by the accused stabbing the deceased in that position even though the two eye-witnesses do not appear to describe it being inflicted in the position it was on the deceased. What happened is likely to have happened very quickly and both eyewitnesses did not see everything that occurred.

3. [27]

   Taken at its highest, the evidence is capable of sustaining a verdict of guilty.

4. [28]

   In those circumstances, the no case application is refused.