[2002] SASC 208134 A Crim R 227
R v MM [2004] NSWCCA 81
Judgment (3 paragraphs)
[1]
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Matouk Joyner Lawyers (Accused)
File Number(s): 2015/335208
[2]
Judgment
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:
Yeah, I'm okay, I'm fucking okay. I'm walking on the footpath. What the fuck's your problem, bro?
The accused said:
I don't have a problem, I'm just sitting here with my missus, man.
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:
So our case is, in a nutshell, that John Yavuz, a quiet, gentle, law abiding man, minding his own business, speaking with his girlfriend in the front seat of the car with the window down was subjected to a vicious and unprovoked attack by Charlie El Azzi, a man who you, I hope, will well understand from the expert evidence was, it is highly possible, on ice, that awful drug that has ruined so many lives and enraged so many people into appalling conduct.
This is why it was so unfair of Madam Crown to talk about an "altercation" or a "fight". It was a vicious, unprovoked act of a man under the influence of dreadful, illicit drugs, indeed, a cocktail of drugs. It would appear that one of the drugs that he was on was a prescription drug for depression, a very high strength antidepressant which I anticipate the pathologist will tell you produces mania.
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:
John Yavuz is not going to attempt to obfuscate any of that, avoid any of that. He is facing up to that. But what he was saying to you, ladies and gentlemen, is, "I've never been in any trouble of any kind. I've never been charged with a crime. I've never been arrested. I am 35 years old. I am a person of good character. That is not me. I would never intentionally hurt anyone."
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:
159 Opening address to jury by accused person
(1) An accused person or his or her Australian legal practitioner may address the jury immediately after the opening address of the prosecutor.
(2) Any such opening address is to be limited generally to an address on:
(a) the matters disclosed in the prosecutor's opening address, including those that are in dispute and those that are not in dispute, and
(b) the matters to be raised by the accused person.
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:
[139] The purpose of the defence opening address under s 159(2), therefore, is to define, for the jury's benefit, the real issues in the trial and what the accused might say in answer to the Crown's allegation. It is not an opportunity for defence counsel to embark upon a dissertation on the onus and standard of proof, or the functions of judge and jury, or to anticipate the directions or warnings to be given by the trial judge, or to urge upon the jury the way that they should assess the evidence of a witness to be called in the Crown case. It behoves trial judges to ensure that the addresses of counsel are not open to abuse, particularly in a case where the contents of the address is circumscribed by a provision of an Act. To permit counsel to ignore such a limitation is not in the interests of justice, either generally or in the particular case. It may be appropriate for a trial judge to ensure, before the defence opens and in the absence of the jury, that defence counsel is aware of the limited basis of an opening under s 159 and that the address will comply with it.
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:
[152] Defence counsel for one accused addressed the jury pointing out to them the following matters: the jury is to provide "checks and balances to make sure that an individual hasn't been wrongly accused"; that people are sometimes wrongly accused for reasons that are never disclosed; the jury was to scrutinise the evidence of the complainant with great care; the jury should not be prejudiced by the nature of the allegations; the presumption of innocence.
[153] Counsel for the co-accused adopted what had been said by his co-counsel and added that it was a case of oath against oath and that this was why the jury had to carefully scrutinise the evidence of the complainant.
[154] The statements made were criticised by the Court of Criminal Appeal as being inappropriate and inconsistent with an "opening" of a party's case, the only procedure provided by the relevant section, being s 288 of the Criminal Law Consolidation Act (SA). Lander J, with whom the other members of the Court agreed, stated:
[97] The purpose of statements made by counsel was to highlight in advance of the prosecution case the weaknesses in it. That was inappropriate. That amounted to argument.
Perry J stated that, where defence counsel was permitted to make a statement after the Crown opening, "the trial judge should be astute to ensure that the situation is not abused by counsel for the defendant attempting to give an advance instalment of his or her final address".
[155] Although leave is not required for defence counsel to give an opening address to the jury under s 159, defence counsel should similarly not abuse the right given under the section by embarking upon arguments and submissions that are only appropriately made in closing address. As an opening address by the Crown should not contain any argument or submission to the jury as to the validity of its case, so the "matters disclosed in the prosecutor's address" referred to in the section, cannot be arguments or submissions arising from the nature of the evidence to be called by the Crown. Nor should "matters to be raised by the accused person" be taken to include defence arguments and submissions based upon the Crown evidence or evidence which may be called in the defence case.
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:
It was not an intentional act at all. Least of all was it an act done with the specific intention that his Honour will tell you about which is the intention to kill or to cause really serious injury. Neither of those ideas, John will tell you, entered his head, but he shouldn't have done it, yes.
…
When we come to the bottom line, he is going to tell you that "it is completely untrue to say that I deliberately stabbed him. It happened in a fraction of a second. The knife dug into him and I wasn't even holding it."
…
You will go into the jury room and you will debate the things that you decide you have differences on but, as his Honour said, you are not deciding who you believe, you are not deciding where the truth lies, you are not deciding what probably happened, but this one question of whether the evidence adduced by the Crown and tested by the defence persuades you individually, each in your own heart, not with a majority, but individually, unanimously, that beyond reasonable doubt you are persuaded that my client had a murderous intention. That is what it takes. The act happened, the death happened, the intention is what murder is about. Was it a murderous intention? Was it proved beyond any doubt to be a murderous intention and we say that you will not be persuaded.
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.
[3]
Amendments
26 November 2018 - Publication restriction removed.
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Decision last updated: 26 November 2018