Court of Criminal Appeal Supreme Court New South Wales 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 1. 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. 2. The appeal against conviction is based upon a single ground: that the verdict of guilty was unreasonable and could not be supported by the evidence. Essentially, this ground turns on the Crown not having established beyond reasonable doubt that a stab wound inflicted by the applicant caused the death of the deceased, and follows the lines of a no case application made at the conclusion of the Crown case: R v Yavuz (No 5) [2018] NSWSC 1796. Factual background Overview 1. There was no dispute about any of the following three paragraphs. 2. At about 1:30pm on 13 November 2015, the applicant's partner drove to Wangee Road, Greenacre, to meet him. She parked her car around the corner from where the applicant lived, on Roberts Road, and across the road from the house where the deceased was living with his mother. The applicant entered the car, sat in the passenger seat and had been speaking with his partner for several minutes when the deceased approached them. The applicant asked the deceased if he was okay, to which the deceased responded "I'm fucking okay, I'm just walking on the footpath" and proceeded to throw punches into the car through the passenger side window, which was open. These punches connected with the applicant's head. The applicant managed to get out of the car and the assault continued. Following the assault, the applicant told his partner to call the police, and walked towards his house on Roberts Road. 3. The applicant obtained a kitchen knife from his home and returned to the deceased's house. The applicant called out to the deceased and demanded an apology. None was forthcoming. The applicant also said to the deceased that he was going to kill him (the primary judge found this for the purpose of sentencing, and there was no appeal from that finding: R v Yavuz (No 6) [2019] NSWSC 95 at [21]). When the deceased failed to respond, the applicant jumped over the fence and ran towards the front steps, where the deceased was sitting. The deceased's mother attempted to block the applicant, but he pushed her to the ground and stabbed the deceased in the left chest region. The applicant ran away with the knife towards Roberts Road. 4. Almost immediately afterwards, a witness, Mr Elmrabt, made a triple-0 call. The transcript of that call records Mr Elmrabt telling the operator that there was blood coming out of the deceased's nose and mouth and that the deceased was barely moving. At trial, Mr Elmrabt gave evidence that a few minutes after the stabbing, he saw blood coming out of the deceased's chest and mouth. Another witness, Mr Ramadani, performed CPR on the deceased while on the phone to an ambulance service. He noted that the deceased was bleeding very heavily. By the time the first ambulance arrived, some seven minutes after the triple-0 call was made, the deceased was unconscious, had no pulse, and had only agonal respiration. Despite a number of medical procedures carried out by paramedics and a doctor, involving incisions into, and the opening of, the chest cavity, the deceased died at the scene. 5. Hence, there was no dispute that the applicant stabbed the deceased, or that the deceased died shortly thereafter. There was no challenge in this Court to there being evidence entitling the jury to be satisfied beyond reasonable doubt that the applicant had intended to inflict grievous bodily harm. Senior counsel for the applicant at trial confirmed no issue was taken as to the Crown negativing self-defence. The critical and indeed only issue, so far as is relevant to the appeal against conviction, was whether the Crown had proved beyond reasonable doubt that the stab wound inflicted by the applicant was the cause of the deceased's death. 6. The applicant's case was that a finding of causation was not open to the jury based upon the evidence of the two individuals who witnessed the stabbing, the paramedics and doctor who attended the scene of the stabbing, and the two medical experts called by the Crown. It will be necessary, having regard to the nature of this ground, to address their evidence in some detail. The most convenient course will be to summarise the evidence in three chronological sections: first, the evidence of the two witnesses who observed the stabbing; secondly, the evidence of the paramedics and doctor who attended the scene of the stabbing, in order of their arrival at the scene; thirdly, the expert opinion evidence. Evidence of Mrs Mirna El-Azzi and Mr Yourness Elmrabt 1. The stabbing was witnessed by Mrs Mirna El-Azzi, the mother of the deceased, and Mr Yourness Elmrabt, a plumber working at the house next door. Both witnesses gave evidence of seeing a single stab, as opposed to multiple stabs. The applicant submitted that their evidence corresponded to a non-penetrating stab wound just below the deceased's left clavicle, which did not cause the deceased's death. 2. The Crown's case was that the applicant had stabbed the deceased more than once, resulting in at least two wounds – the wound below the clavicle that did not penetrate the chest cavity and a wound to the left lateral chest described as "atypical", which caused the deceased's death. 3. The Crown called both Mrs El-Azzi and Mr Elmrabt to give evidence on Wednesday, 14 November 2018. Their evidence occupied the greater part of that day. 4. Mrs El-Azzi's evidence was that after the applicant jumped over the fence of her house, he pushed her over causing her to fall on the grass. She said that her back was to the deceased initially, but that she looked back towards him as she was trying to get up, and saw the applicant stab the deceased. As heard by the jury, this evidence was as follows: "Q. Before I ask you some questions about the chair, you told us that John had pushed you over, and you ended up on the grass? A. Yes. Q. When this happened, what's the next thing that you remember happening after that? A. By the time I was trying to get up, I looked back towards Charlie, and John was in an upper position holding the knife in his chest. Q. Where was Charlie at this point? A. Sitting on the stairs, sitting on the stairs. Q. What was Charlie doing at that point? A. He was just sitting. Q. What did John do? A. He pushed the knife in his chest. … Q. Thank you. What did you do when you saw this happen? A. I ran towards Charlie and called the ambulance. Q. Did you see John do anything at that point? A. He took, he took out the knife and I think it fell on the grass, or something, on the dirt, and he picked it up and he ran away." 1. In cross-examination, Mrs El-Azzi gave evidence that she had "a clear view" of the stabbing, that she saw the knife strike the deceased's bare skin, and that the knife went "in and out" of the deceased's chest. In response to defence counsel's question: "John did nothing else than stab, dropped the knife, picked the knife up and run away?", Mrs El-Azzi said "Yes.". 2. Mr Elmrabt's evidence was that the applicant had stabbed the deceased in the left side of his chest and that the knife remained in the deceased for "a couple of seconds maximum", following which the applicant pulled out the knife, dropped and retrieved the knife and "took off". He said that prior to the applicant stabbing the deceased, the deceased remained sitting and did not put his arms up. Mr Elmrabt gave evidence that he only saw the applicant stab the deceased once, but conceded in cross-examination that there was a short period of time where his view of the applicant was obstructed: "Q. … but he was only stabbed once, right? A. Correct. Q. You didn't take your eyes off him? A. Correct. Q. Indeed you didn't take your eyes off him until he cleared the fence to go away? A. Correct. Q. You are quite sure of that? A. No, it was a split second of a – Q. What? A. There was a split second where I didn't see him. Q. When was that? A. When he was behind the shrubs. Q. Leaving? A. No, when he [was] covered by the shrubs. Q. When did that happen? A. That happened just after the stabbing." 1. It was also put to Mr Elmrabt in cross-examination that the deceased was stabbed "below [the] left collarbone about directly above your left nipple". Mr Elmrabt disputed this. Mr Elmrabt did not agree on the exact location of the stab, but maintained that it was "through the left side of the chest". 2. Also in evidence was the sound recording and a transcript of the triple-0 call Mr Elmrabt made almost immediately after the stabbing. On that call, Mr Elmrabt stated that there was blood coming out of the deceased's nose and mouth, that the deceased was barely moving, and that he had one wound on the left side of his chest. Approximately 7 minutes into the call, Mr Elmrabt noted that police had arrived at the scene. Shortly after, Mr Elmrabt confirmed that the ambulance had arrived. 3. The evidence of the two eye-witnesses was, therefore, that they saw a single stab wound. Their evidence of location was consistent with that wound being either the non-penetrating clavicular wound, or the atypical wound. 4. In closing submissions, counsel for the defence stressed that the Crown was asking the jury to "infer against the evidence that there was an unseen struggle and from that inference draw the further inference that Charlie El-Azzi was fatally stabbed again, unseen". Before this Court, the Crown submitted that the evidence established that "[n]either witness had an uninterrupted view of the entire incident, Mrs El-Azzi because she was knocked over and Mr Elmrabt because for a brief period his view was blocked by shrubs between the two houses". Evidence of the paramedics and doctor 1. The applicant submitted that "none of the five highly trained and diligent ambulance officers, and the attending doctor … saw any wound other than that near the deceased's collarbone", being the clavicular wound. The evidence of the paramedics was given briefly, over the course of Thursday 15 November 2018. The evidence of the doctor was given on the morning of Friday 16 November 2018. 2. The first paramedics to arrive at the scene following the stabbing of the deceased were Officer Carter and Officer Prestoe. They arrived shortly after 2pm, at which point the deceased was already "unconscious, with no pulse". Officer Carter gave evidence that he noticed only one injury on the deceased, being a stab wound below the left clavicle, which was about two centimetres in length. He confirmed that he had been trained in examining injured persons and looked at the exposed parts of the deceased's body, but noted that the deceased was lying on his back. Officer Carter stated that he commenced CPR, rotating with Officer Prestoe, during which blood came from the deceased's nose and mouth. Officer Prestoe was not called as a witness during the trial, but provided a statement on 9 December 2015 which was read into evidence. Officer Prestoe's statement notes that he "did not see any other injuries" beyond the "single stab wound under [the deceased's] left clavicle". 3. Officer Hill and Officer McDonald were the next paramedics to arrive at the scene. Officer Hill gave evidence that she noticed one wound to the left side of the deceased's chest, approximately two centimetres under his left collarbone and about two centimetres in length. Officer Hill performed chest decompressions on the deceased by making two incisions with a scalpel on the deceased's body, one below the observed stab wound which was "a little bit too far to the left", and a second incision just below the stab wound. She gave evidence that the first chest decompression, at the site of the first incision, was unsuccessful as the cannula slipped out due to the amount of blood coming from the wound. She then reinserted another cannula into the second incision. The purpose of the decompression was "to let air out so the lung can deflate". 4. Officer McDonald's statement, which was read before the jury, stated that "the patient had a single stab wound to the left side of his upper chest roughly between the first and second rib". In cross-examination, Officer McDonald agreed that this coincided roughly with the position of the stab wound according to Officer Hill's evidence. Officer McDonald's statement also noted that, prior to the decompressions taking place, "it was established that the patient had no breath sounds on the left side of his lung, and deceased sounds on the right lung" and that the likely meaning of this was that the deceased had a large hole in the left lung. 5. Officer Lisle and Dr Novy were the third medical crew to arrive at the scene. At the point of their arrival, the deceased had been intubated and was being ventilated, among other things. Officer Lisle's evidence was that he noticed a single stab wound to the left upper chest, and was instructed by Dr Novy to perform a finger thoracostomy on the left lateral chest wall at the same time that Dr Novy performed a finger thoracostomy on the deceased's right hand side. The finger thoracostomy was described by Officer Lisle as "an incision partly caused by a scalpel and then a finger which protrudes into the chest wall through the ribs and it's designed to release any pressure that may have built up in the potential space that is usually occupied by the lung." Officer Lisle noted that pooled blood issued from his incision, and that the blood appeared to be "no longer part of [the deceased's] circulatory volume". In cross-examination, Officer Lisle stated that in making the incision for the finger thoracostomy, he made "an educated attempt" to go to the fifth intercostal space. 6. Dr Novy noticed that the deceased had a single stab wound to the left anterior chest wall at the mid-clavicular line, which was about 4 centimetres long. He gave evidence that he performed a finger thoracostomy on the right hand side, following which he could feel that the lung on the right hand side had not collapsed. Dr Novy noted that, consistent with Officer Lisle's evidence, the blood that came out of the left side was dark and unoxygenated, meaning it was not arterial blood. As the finger thoracostomies did not restore signs of life to the deceased, Dr Novy performed a clamshell thoracotomy which he described as "essentially … open heart surgery", involving a cut from one side of the chest to the other, joining the finger thoracostomies together. In re-examination, Dr Novy conceded that there was "a possibility that in fact the clamshell was performed a little bit above where the finger thoracostomies were initially undertaken", noting that the procedure was done "on a front yard with blood everywhere". 7. Dr Novy was also shown two photographs taken during the deceased's autopsy, showing three wounds on the lower lobe of the deceased's right lung, and a paring injury to the middle lobe of the right lung. He said that he was not aware of causing any of these injuries. Evidence of the medical experts 1. The third aspect of the applicant's case was that the stab wound which was accepted by the Crown's two medical experts as substantially contributing to the deceased's death was not the clavicular wound observed by the paramedics and doctor treating the deceased. 2. It will be plain from what has already been summarised that the expert evidence was based on examination of a body which had been severely damaged by the efforts to treat or resuscitate a man who had been stabbed. 3. Dr Irvine conducted an autopsy on the deceased on 16 November 2015. She was called to give evidence by the Crown on Monday, 19 November 2018, and was cross-examined extensively. Dr Irvine gave evidence that the "cause of death was a stab wound of the chest", and that the wound which "certainly contributed to death more than any of the other injuries" was located near the bottom of the ribcage on the left hand side of the deceased. This wound was described by Dr Irvine as "atypical" due to its fairly large size, elliptical rather than slit-like shape, and the presence of an irregularity at, and scratches extending from, the edge of the wound. In cross-examination, Dr Irvine accepted that no such injury was observed by the paramedics or doctor, but gave evidence that it was possible for a person in Dr Novy's position to miss a fatal wound. 4. Dr Irvine noted that below this atypical wound were two defects, being two holes in the eighth and ninth intercostal spaces on the left side of the deceased. In Dr Irvine's opinion, these two defects were not caused by the clamshell thoracotomy or the finger thoracostomies performed by the paramedics and doctor at the scene, which were located higher up the body. Dr Irvine also noted that there were three stab wounds at the front of the lower lobe of the right lung and one paring type injury on the middle lobe of the right lung. Dr Irvine had hypothesised that the atypical stab wound on the left side, which was approximately 25 centimetres from the group of injuries on the right lung, "went across the inside of the chest to cause the injuries to the lower and middle lobe of the right lung". For this to occur, Dr Irvine stated that "you would have to have multiple passes of the blade through the body". 5. This theory was challenged in cross-examination, with counsel for the defence pointing to the contrary view of another expert, Professor Duflou, that the blade used by the applicant (which was around 12 centimetres in length) would not have been able to reach the right lung from the site of the atypical wound. It was also put to Dr Irvine in cross-examination that "[t]he medical intervention by Dr Novy is a credible and obvious solution to the quandary of the damage internally, isn't it, to the right lung?", to which Dr Irvine responded that it was "one possibility" which she had trouble accepting. Counsel for the defence also put to Dr Irvine that the atypical wound in the ribcage could not have been inflicted by the applicant without also hitting the deceased's arm if the deceased was "sitting on a step with his arms down, particularly his left arm by his side, and he didn't move that arm". Dr Irvine accepted that this was correct as a hypothetical. 6. A separate cluster of three stab wounds was identified by Dr Irvine on the left upper chest, below the clavicle. Dr Irvine's evidence in relation to the bottom two wounds was that, while she had not initially understood their cause, she now understood them to have been caused by a paramedic inserting a needle thoracostomy. Dr Irvine's evidence in relation to the third stab wound within the cluster, above the two needle thoracostomy wounds, was that this wound did not go into the chest cavity and did not substantially contribute to death. 7. Following the evidence of Dr Irvine, the Crown called a second forensic pathologist, Prof Duflou. His evidence occupied the afternoon of Monday 19 November, and the morning of Tuesday, 20 November 2018. Professor Duflou confirmed that he had played no role in the autopsy of the deceased, but had received the reports of Dr Irvine, including autopsy photographs of the deceased. It was Prof Duflou's opinion that if the wound under the deceased's collarbone did not enter the chest cavity, then it did not cause the death of the deceased. In Prof Duflou's view, there was only one plausible explanation for the deceased's death, which was "sharp force injury to the body which has resulted in exsanguinating blood loss". He stated that he did not believe this was caused by the medical intervention at the scene given the fact that the deceased "was at least in extremis at commencement of medical intervention". 8. Professor Duflou raised four theories as to the cause of the fatal injury. The first theory, which was his preferred theory, was that there was a "missed" stab injury to part of the left lung known as the hilum. Professor Duflou gave evidence that stab wounds were "very frequently" missed at scenes, and accepted that the injury to the hilum could have arisen from the knife passing from the site of the atypical wound. In cross-examination, Prof Duflou accepted that the theory was not without doubt. The second theory, preferred by Dr Irvine, was that the atypical stab wound was the cause of the injuries to the right lung. Professor Duflou noted a number of problems with the theory, including that it did not explain why the bleeding was predominantly on the left side of the deceased's body or how the left rather than right lung was collapsed. The third theory was that there were one or more additional wounds to the right side of the chest, which were inadvertently incorporated into the clamshell thoracotomy by Dr Novy. The fourth theory was that the wound below the clamshell thoracotomy was a stab wound. It was Prof Duflou's view that both the third and fourth theories could explain the wounds to the right lung, but did not explain the trauma to the deceased's left side. 9. In cross-examination, Prof Duflou was taken to part of his report in which he had stated that "the initial stabbing … then the extensive cutting of the body … during emergency surgery make it exceptionally difficult to confidently analyse the injuries and significantly impairs the ability of the forensic pathologist to ascertain the nature" of what caused the injuries. He ultimately accepted that forming an opinion as to the mechanism of the deceased's death was a matter of speculation. 10. While Dr Irvine and Prof Duflou disagreed upon the precise mechanism of the deceased's death, both shared the opinions that (i) the clavicular wound did not cause the deceased's death; (ii) a different wound did cause the deceased's death (according to Dr Irvine's theory, this was the atypical wound; according to Prof Duflou's preferred theory, this was a wound which could have arisen from the atypical wound); and (iii) the deceased's death was not caused by medical intervention. Unreasonable verdict 1. An appeal on the ground that a verdict is unreasonable lies to this Court, with leave, pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). Subject to leave being granted, the question for this Court is whether upon the whole of the evidence it was open to the jury to be satisfied of the applicant's guilt beyond reasonable doubt: M v The Queen (1994) 181 CLR 487 at 492-493; [1994] HCA 63; Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] and Pell v The Queen [2020] HCA 12; 94 ALJR 394 at [43]-[45]. In Libke, the test was put in terms of "whether the jury must as distinct from might, have entertained a doubt about the applicant's guilt" (emphasis as in original). As stated by Hayne J: "It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the [parties] gave that was relevant to the issue" at [113]. 1. In answering that question, this Court must make its own independent assessment of the evidence, allowing for the limitations of the appellate process: M v The Queen at 492; Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [41]. It is not only the "advantage" of seeing and hearing the witnesses that must be considered. This Court must also strive to preserve the "functional or 'constitutional' demarcation between the province of the jury and the province of the appellate court": Pell v The Queen at [38]. 2. In The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, a unanimous High Court explained that demarcation as follows: "It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is 'the constitutional tribunal for deciding issues of fact'. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is 'unreasonable' within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal. With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court 'must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." (At [65]-[66], footnotes omitted). 1. More recently, a unanimous High Court in Pell v The Queen said: "[T]he assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function." (At [37], footnotes omitted). 1. Taking these principles into account, can it be concluded that upon an assessment of the whole of the evidence, it was not reasonably open to the jury to find that the applicant was guilty of the offence of murder? 2. The following considerations lead me to conclude that the jury's verdict was reasonably open. 3. First, almost immediately after the stabbing, Mr Elmrabt made a triple-0 call, stating that blood was coming from the deceased's nose and mouth, and that the deceased was barely moving. When the first paramedics arrived at the scene, some seven minutes after that triple-0 call was made, their evidence was that the deceased was already unconscious, had no pulse, and had only agonal respiration. They also gave evidence that CPR caused blood to come from the deceased's nose and mouth. In the words of Prof Duflou, the deceased was "at least in extremis" by the time medical intervention commenced. 4. If the only stab wound proven beyond reasonable doubt to have been inflicted upon the deceased was the non-fatal clavicular wound, then why was the deceased in such a serious condition shortly after that stab being inflicted, and prior to any medical intervention? In response, counsel for the applicant contended that such an inquiry was asking the applicant to prove that he did not kill the deceased, thereby reversing the onus of proof. This led to the following exchange: "JOHNSON J: No that's not what's happening, what's happening is that the jury as the tribunal of fact and this Court on appeal is looking at all the evidence, is looking at a sequence of events. While it's not starting at the end with the experts and working back in the way that you're asking us to do, the Court is looking at what people saw who were actually there from beginning because there's no suggestion there's a second stabber as I understand it. It's not suggested Mr El-Azzi's mother or someone else injured him, the only person who stabbed him was your client, but the question then is where does one go with signs of injury and significant injury occurring long before any ambulance driver or paramedic got there. MCLACHLAN: Yes, no I accept that." 1. The applicant's concession was correctly made. The question for this Court is whether the jury's verdict was open upon the whole of the evidence. That evidence included the fact that shortly after an attack by a single stabber, there was unchallenged evidence that the deceased suffered significant blood loss, fell unconscious and had no pulse. 2. Secondly, the jury heard from both Dr Irvine and Prof Duflou that neither was of the opinion that the deceased's death was caused by medical intervention at the scene. This was so despite the fact that in cross-examination, counsel for the defence repeatedly questioned Dr Irvine and Prof Duflou on the possibility of the fatal wound being inflicted in the course of the medical intervention. 3. Thirdly, it was at least open to the jury to find that the stab that Mrs El-Azzi and Mr Elmrabt observed caused the "atypical" rather than the "clavicular" wound. The evidence of Mr Elmrabt was that the knife entered the deceased's "left chest", where it remained for a couple of seconds before being pulled out. He did not specify where on the left chest this was and refused to accept that the location of the stab was near the left clavicle when this was put to him repeatedly in questioning. Mrs El-Azzi's evidence was that she saw the applicant take the knife out of the deceased's "chest". In response, counsel for the applicant submitted that the witnesses' accounts were consistent with the deceased's ribcage (the site of the atypical wound) not being exposed. "LEEMING JA: We know there is a stab wound on the left side of the chest; we know that it penetrated into the cavity. We know the witness said to Mr Littlemore the knife entered the left side of the chest, we know the witness says the knife was in, was in for two seconds, and then was pulled out. Do you say the jury wasn't entitled to find that that was a reference to the atypical wound? That's what this aspect comes down to, doesn't it? MCLACHLAN: Yes, it does your Honour. That's not a reference to the atypical wound, it's a reference to what I call the upper, near the left collarbone wound, and that's what that goes to. … [T]he submission that's ultimately made is that the only act that the jury could have been satisfied that was committed by the applicant would have been the left stab to the collarbone area. There wasn't a second stabbing, and certainly, it's consistent with the deceased sitting there on the step with his arms down. In other words, he doesn't have his arms raised, which might then expose the rib cage." 1. Mr Elmrabt's evidence is consistent with him having witnessed a wound to the deceased's left ribcage, as opposed to the clavicular wound. Further, as noted by Dr Irvine in cross-examination, the impossibility of the stab observed being a stab to the ribcage depended upon the deceased not only sitting with his arms down, but not moving his left arm while he was stabbed. It was therefore open to the jury to make a finding that the two witnesses to the stabbing saw a single stab, which was the non-penetrating wound to the deceased's left ribcage. But the more important point is that the evidence of neither eye-witness precluded a finding that the applicant inflicted more than one stab wound. Neither witness had a completely uninterrupted view of the stabbing, Mrs El-Azzi because she had been pushed to the ground and had to turn in order to see the applicant stab the deceased, and Mr Elmrabt because his view was obscured by shrubs "just after" he saw the applicant stab the deceased. 2. Before this Court, the applicant submitted that "to the extent [Mrs El-Azzi] didn't see anything it was before … the relevant events … but to the extent that [Mr Elmrabt] didn't see anything he said it was after the stab … there is no gap in either account in respect of the actual relevant event" (emphasis added). But the fact of the matter is that the applicant was the sole attacker, multiple stab wounds were observed on the deceased, and both witnesses to the stabbing accepted that their vision of the deceased was obstructed around the time of the stabbing. In light of these other facts, it was at least open to the jury to consider beyond reasonable doubt that the applicant had inflicted more than one stab wound upon the deceased, including one which was not observed by either of the two witnesses to the stabbing. 3. Fourthly, it is true that the five paramedics and the doctor who treated the deceased at the scene only observed one stab wound, being the clavicular wound, and that the two expert witnesses were of the opinion that this wound did not cause the deceased's death. However, the evidence of Dr Irvine and Prof Duflou was that it was possible for wounds to be missed at scenes, and indeed, that this occurred "very frequently". When this is considered together with the evidence of the paramedics and doctor that they checked for wounds while the deceased was lying on his back, and that the deceased was lit by "light on a front yard, with blood everywhere", it was reasonably open to the jury to conclude that a wound had been missed and that, beyond reasonable doubt, the fatal injury was inflicted by the applicant. 4. For those reasons, I would grant leave to appeal the conviction, but dismiss the appeal. Appeal against sentence 1. The large majority of the applicant's written and oral submissions was directed towards the appeal against conviction. The written and, especially, the oral submissions on the appeal against sentence were very brief (they occupied a page and a half of transcript, and half of that was directed to the withdrawal of proposed ground 1(b)). I shall follow the same course. 2. A sentence of 21 years imprisonment, with a non-parole period of 15 years and 9 months, backdated to 13 November 2015, was imposed in 2019: R v Yavuz (No 6) [2019] NSWSC 95. The appeal against that sentence was based upon three grounds. First ground 1. The first ground was that: "In assessing the objective criminality of the offence, his Honour erred in: (a) Finding that the deceased's death was caused by a stab wound which was inflicted by the applicant; (b) Finding that the applicant's offending was "entirely unprovoked"; and (c) Ultimately finding that the offence was "low in the mid-range" of objective seriousness." 1. For the reasons already set out above, I do not accept that the primary judge erred in finding that the deceased's death was caused by a stab wound which was inflicted by the applicant. This alleged error rises and falls with the appeal against conviction. 2. The second error advanced by the applicant, that the primary judge found that the applicant's offending was "entirely unprovoked", was based on a misreading of R v Yavuz (No 6) [2019] NSWSC 95 at [39] and not pressed before this Court. 3. The third error, being the finding that the offence was "low in the mid-range" of objective seriousness was not elaborated orally. In his written submissions, it was put by the applicant that when all factors were properly considered, including the errors asserted in respect of causation and provocation, the offending fell in the "lowest" range of objective seriousness. In circumstances where the error with respect to the primary judge's finding on causation has not been made out, and the finding about provocation has not been pressed, I am not persuaded that his Honour erred in assessing the objective criminality of the offence as being "low in the mid-range". Second ground 1. The second ground advanced by the applicant was that "his Honour erred in failing to properly consider the issue of delay". The applicant submitted that he had spent over three years in remand and that such a lengthy delay had to assume material significance in the sentencing process (though he conceded that both the Crown and the defence were partly responsible for that delay). 2. There was uncontroversial evidence that the following matters gave rise to the substantial delay in this trial. First, the jury in the first trial, which commenced in November 2017, had to be discharged due to the opening address by counsel for the defence: see R v Yavuz (No 1) [2017] NSWSC 1645. A second jury was empanelled shortly thereafter, but was discharged in December 2017 as a consequence of (speaking generally) the Crown's failure to produce the sound recording and transcript of Mr Elmrabt's triple-0 call: R v Yavuz (No 2) [2017] NSWSC 1705. The third was the defence's belated service of the reports of a forensic pathologist, resulting in a successful application by the Crown for the trial dates to be vacated (ultimately, the pathologist was not called at trial). Thus part (but by no means all) of the delay was attributable to the applicant. However, the primary judge gave full credit for the time that the applicant had been in custody. It follows that the delay in bringing the prosecution to trial did not contribute to any additional period of imprisonment imposed. This ground is not made out. Third ground 1. The applicant's third ground was that "the sentence was otherwise manifestly excessive". In oral submissions, counsel for the applicant placed emphasis on the following findings of the primary judge: 1. The intention of the applicant was only to inflict grievous bodily harm. 2. The applicant was subject to "provocative assaults" carried out by the deceased, resulting in a "heightened state of arousal" on the part of the applicant. 3. The applicant was at a low risk of re-offending. 1. Those findings may be accepted, but I am unpersuaded that they establish that the sentence imposed was manifestly excessive, particularly in light of the primary judge's findings that there was not proper remorse and contrition on the part of the applicant, and that the offence was aggravated by having been committed at the deceased's home: R v Yavuz (No 6) [2019] NSWSC 95 at [56] and [76]. It is to be recalled that the maximum penalty is life imprisonment, and the standard non-parole period is 20 years. A sentence of 21 years with a non-parole period of 15 years and 9 months is not manifestly excessive. 2. The applicant emphasised the length of the non-parole period of 15 years and 9 months. However, that was a consequence of the failure to find special circumstances, which was plainly available when the applicant would be, if granted parole at the conclusion of the non-parole period, subject to supervision for a period exceeding 5 years. 3. The applicant also supplied a table of six cases, said to be comparable and said to support a conclusion that the sentence imposed was manifestly excessive. These cases are readily distinguishable from the present case. In three of the cases, the sentences quoted included discounts (of 15% for pleas of guilty in Carr v R [2009] NSWSC 995; R v Robert Martin Hicks [2013] NSWSC 1324; and 5% for assistance in R v Brooks (No 5) [2017] NSWSC 824). The undiscounted sentences (of almost 19 years, 20 years and 21 years) broadly align with the sentence imposed on the applicant. A fourth concerned an offender who was 16 years old at the time of offending: MB v R [2013] NSWCCA 254, which accounts for a head sentence of 17 years imprisonment. A fifth concerned an offender with mental health issues who was affected by alcohol at the time of offending: R v Ronald Shiels [2011] NSWSC 1177. The head sentence of 20 years is comparable to that imposed upon the applicant, while the non-parole period of 13 years is attributable to a finding of special circumstances. The final decision, R v Do (No 4) [2015] NSWSC 512, concerned the sentence imposed for an offence found to be below the mid-range of objective seriousness of 23 years, with a non-parole period of 16 years. None of these cases dissuades me from the view that the applicant has failed to establish that his sentence was manifestly excessive. 4. Consistently with the appeal from sentence being given scant attention in the applicant's submissions, none of the proposed grounds of appeal against sentence withstands scrutiny. I do not think a case has been made out for the grant of leave. Orders 1. For those reasons, I propose the following orders: 1. Grant leave to appeal against the conviction, but dismiss the appeal against conviction. 2. Refuse leave to appeal against sentence. 1. JOHNSON J: I agree with Leeming JA. 2. ROTHMAN J: I agree with the reasons for judgment of Leeming JA and with the orders his Honour proposes. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 September 2020