Citation: R v Yavuz (No. 1) [2017] NSWSC 1645
Court: Supreme Court of NSW
Date: 29 November 2017
Judge(s): Davies J
Background
The accused was charged with the murder of a man who had allegedly punched him through a car window during an altercation in November 2015. The Crown case was that the accused, after retreating to his home, returned to the deceased's nearby property armed with a knife and stabbed him just below the collarbone, near the heart.
After the jury was empanelled and the Crown delivered its opening address, defence counsel exercised the right under s 159 of the Criminal Procedure Act 1986 (NSW) to deliver a defence opening address. That address became the subject of a Crown application to discharge the jury.
The Crown argued that defence counsel's address strayed well beyond the permitted scope of a defence opening, crossing into closing argument and, critically, asserting that the accused was of good character when he in fact held a prior conviction for assault occasioning actual bodily harm.
Legal Issues
- Whether the defence opening address complied with the limitations imposed by s 159(2) of the Criminal Procedure Act 1986 (NSW)
- Whether the jury should be discharged as a result of the address
Decision
Davies J found that the defence opening address breached s 159(2) in several respects and that discharging the jury was the appropriate response.
The most serious problem was that defence counsel told the jury that the accused had never been in any trouble, had never been charged with a crime, and had never been arrested. In fact, the accused held a prior conviction for assault occasioning actual bodily harm. Counsel acknowledged, after the address, that his instructions had been inadequate. That misrepresentation could not be cured without discharging the jury.
The address also contained impermissible argument. Defence counsel speculated that the deceased had been on the drug "ice" at the time of the altercation, without evidence yet before the jury to support that claim. Counsel also repeatedly framed the central question for the jury as whether the accused had a "murderous intention." The court held that this formulation likely misled a lay jury, since it conveyed an intention to kill, whereas the law of murder also encompasses an intention to cause grievous bodily harm. That misstatement of the legal standard compounded the other problems.
Davies J confirmed, drawing on R v MM [2004] NSWCCA 81, that the purpose of a defence opening under s 159 is to identify the real issues in the trial and explain what the accused says in response to the Crown's case. It is not an opportunity to argue the weaknesses of the Crown case, anticipate judicial directions, or urge particular assessments of witnesses. A significant portion of the address in this case was, in the court's view, appropriate only for a closing address.
Orders Made
- The jury was discharged.
Key Takeaways
- Section 159(2) of the Criminal Procedure Act 1986 (NSW) limits a defence opening address to matters disclosed in the Crown's opening and the matters the accused intends to raise; it does not permit argument, speculation, or submissions more appropriate to a closing address.
- The NSW Court of Criminal Appeal in R v MM [2004] established that a defence opening must not be used to attack the Crown case through argument, anticipate judicial directions, or urge particular assessments of Crown witnesses.
- Asserting that an accused is of good character when he or she in fact holds a prior conviction is a fundamental misrepresentation to the jury, and in this case it was a primary basis for the discharge.
- Describing the mental element of murder solely as a "murderous intention" risks misleading a lay jury, since the legal definition of murder in NSW also captures an intention to cause grievous bodily harm, not only an intention to kill.
- Trial judges retain the responsibility to intervene when defence opening addresses exceed the statutory limits, and the Supreme Court indicated it may be appropriate to remind defence counsel of those limits before the address is delivered.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 159
Cases
- R v MM [2004] NSWCCA 81; (2004) 145 A Crim R 148
- R v Hansen (2002) 84 SASR 54; [2002] SASC 208; 134 A Crim R 227