R v Yavuz (No. 5) [2018] NSWSC 1796

Supreme Court New South Wales

Medium Neutral Citation: R v Yavuz (No. 5) [2018] NSWSC 1796 Hearing dates: 20 November 2018 Date of orders: 22 November 2018 Decision date: 22 November 2018 Jurisdiction: Common Law - Criminal Before: Davies J Decision: The no case application is refused Catchwords: CRIMINAL LAW – murder – stabbing - no case application – where no direct evidence that fatal wound inflicted by accused – eye-witnesses give evidence only of inflicting of non-fatal wound – where case partly circumstantial – no other cause of death – immediate collapse and blood loss after stabbing –whether evidence capable of sustaining a guilty verdict – application rejected Legislation Cited: Nil Cases Cited: Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51 May v O'Sullivan (1955) 92 CLR 654; [1955] HCA 38 R v JMR (1991) 57 A Crim R 39 Regina v PL [2012] NSWCCA 31 Texts Cited: Nil Category: Procedural and other rulings Parties: Crown John Can Yavuz (Accused) Representation: Counsel: N Williams (Crown) S Littlemore QC (Accused)

Solicitors: Office of the Director of Public Prosecutions (NSW) (Crown) Matouk Joyner Lawyers (Accused) File Number(s): 2015/335208

Judgment 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. 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. In Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51 the High Court said at 212 and 214-215: There is no doubt that it is a trial judge's duty to direct such a verdict if the evidence cannot sustain a guilty verdict or, as is commonly said, if there is no evidence upon which a jury could convict. … It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty. It is necessary only to observe that neither the power of a court of criminal appeal to set aside a verdict that is unsafe or unsatisfactory (as to which see Whitehorn, Chamberlain v. The Queen (No.2) [1984] HCA 7; (1984) 153 CLR 521 and Morris v. The Queen [1987] HCA 50; (1987) 163 CLR 454) nor the inherent power of a court to prevent an abuse of process (as to which see Jago v. District Court (N.S.W.) [1989] HCA 46; (1989) 168 CLR 23) provides any basis for enlarging the powers of a trial judge at the expense of the traditional jury function. The power of a court of criminal appeal to set aside a verdict on the ground that it is unsafe or unsatisfactory, like other appellate powers, is supervisory in nature. Its application to the fact-finding function of a jury does not involve an interference with the traditional division of functions between judge and jury in a criminal trial. 1. 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. 2. Mr Littlemore said that the evidence in relation to the stabbing was relevantly the following: 1. As the accused approached Mr El Azzi, Mr El Azzi was seated on the top step at the front of his mother's house. 2. He did not rise or attempt to rise; and he did not raise his hands or his arms. 3. The accused stabbed Mr El Azzi once, momentarily. The knife was in his chest for one or two seconds. 4. The knife struck Mr El Azzi's left anterior chest, 2cm below the collarbone. 5. The accused either pulled out the knife or it fell out, but it fell to the ground. 6. That stab injury was not life-threatening and could not have been fatal because it did not penetrate the chest wall. 7. Immediately after stabbing Mr El Azzi once, the accused retrieved the knife from the ground and ran away, jumping the fence of the property. 8. Mr El Azzi did not move from the steps after he was stabbed. 9. His mother cradled him at the bottom of the steps. 10. Mr El Azzi's torso was bare at the time he was stabbed, and thereafter. 11. Neither of the first team of ambulance officers to arrive saw any wound to Mr El Azzi except that in his left anterior chest. 12. Neither of the second team of two paramedics to arrive saw any wound to Mr El Azzi except that in his left anterior chest. 13. The chest decompression wounds made by the paramedics did not cause Mr El Azzi's death. 14. Neither member of the surgical unit, who arrived third, saw any wound to Mr El Azzi except that in his left anterior chest. 15. Mr Lisle was in close contact with Mr El Azzi's left side, and his ribs, in finding a location to insert a scalpel for the purposes of a finger thoracotomy. 16. A large volume of blood flowed from Mr Lisle's finger thoracotomy wound. 17. The origin of that blood is unknown. 18. Dr Novy was in close contact with Mr El Azzi's right side, and his ribs, in finding a location to insert a scalpel for the purposes of a finger thoracotomy. 19. Dr Novy opened Mr El Azzi's chest with a large scalpel for the purpose of performing a clamshell thoracotomy. 20. Dr Novy has no recollection of whether he joined the two thoracotomy wounds in opening Mr El Azzi's chest or used those wounds as 'landmarks', making his incision at a point slightly above where the finger thoracotomies were performed. 21. lt is possible that Dr Novy's clamshell incision was performed 'a little bit above' the left-sided finger thoracotomy wound made by Mr Lisle. 22. At autopsy, Dr Irvine found four wounds to the right lung. 23. The right lung wounds were at least possibly made during Dr Novy's performance of the clamshell thoracotomy. 24. The cause of death was a penetrating wound to the left lateral chest between the 8th and 9th ribs. 1. 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. 2. 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. 3. 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. 4. 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: