Citation: R v Yavuz (No. 5) [2018] NSWSC 1796
Court: Supreme Court of New South Wales
Date: 22 November 2018
Judge: Davies J
Background
The accused stood trial for the murder of a man who died following a stabbing. Two eyewitnesses, the deceased's mother and a neighbour, were present at the scene and gave evidence of observing the accused stab the deceased once in the left clavicular (collarbone) area. That wound, on the medical evidence, was not life-threatening and did not penetrate the chest wall.
The cause of death, as determined at autopsy, was a penetrating wound to the left lateral chest between the 8th and 9th ribs. This wound, described by pathologists as the "atypical stab wound," was not directly observed by either eyewitness, nor was it noted by the ambulance officers or medical personnel who attended the scene. No other person was near the deceased after the accused fled, except the deceased's mother and those providing medical assistance.
At the close of the Crown case, counsel for the accused applied for a directed verdict of acquittal, arguing that the prosecution evidence, taken at its highest, could establish no more than that the accused had inflicted a single non-fatal wound, and that there was no evidence linking the accused to the fatal wound.
Legal Issues
- Whether the prosecution evidence, taken at its highest, was capable of sustaining a guilty verdict for murder.
- Whether the absence of direct eyewitness evidence of the fatal wound was fatal to the Crown case in circumstances where the case was partly circumstantial.
- Whether a directed verdict of acquittal was warranted under the principles in Doney v The Queen (1990) 171 CLR 207 and related authority.
Decision
Davies J applied the established test from Doney v The Queen: a directed verdict of acquittal is warranted only where there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty. Even tenuous, weak, or vague evidence capable of supporting a guilty verdict must be left to the jury. His Honour also noted that in a circumstantial case, a directed verdict is not available simply because a reasonable hypothesis consistent with innocence can be formulated.
His Honour found that the case combined both direct and circumstantial evidence. Although neither eyewitness expressly described a stab wound to the left lateral chest, both gave evidence that was capable of supporting an inference that more than one stab was inflicted. Mrs El-Azzi described seeing the knife already in the deceased's chest before observing a further downward thrust, while Mr Elmrabt's description of the accused going "straight in with the knife" to the "left side of his chest" was arguably inconsistent with the superficial clavicular wound alone.
The pathological evidence was a significant further circumstance. Both Dr Irvine and Professor Duflou expressed the opinion that the atypical stab wound caused death, that it was present before the ambulance officers arrived, and that it was not caused by the subsequent medical interventions. Professor Duflou noted the deceased was already in extremis when paramedics arrived and that the blood loss had occurred before their attendance. The deceased had also begun bleeding heavily through the mouth within minutes of being stabbed.
Davies J concluded that, in circumstances where no other person with harmful intent had been near the deceased, where pathologists placed the fatal wound before medical intervention, and where the eyewitness accounts were capable of supporting an inference of more than one stab, the evidence was substantial and capable of sustaining a guilty verdict. The no-case application was refused.
Orders Made
No formal orders were recorded in the provided text beyond the refusal of the no-case application.
Key Takeaways
- A directed verdict of acquittal requires a defect in the evidence such that it cannot, even taken at its highest, sustain a guilty verdict; the Supreme Court reaffirmed that weak or tenuous evidence still goes to the jury.
- The absence of direct eyewitness evidence of the fatal act does not necessarily defeat a murder charge where circumstantial evidence, including expert pathological opinion, is capable of supporting the inference that the accused caused death.
- Expert evidence placing the fatal injury before any medical intervention, combined with evidence that no other person with harmful intent was present, can constitute substantial circumstantial evidence for a jury to consider.
- In a mixed direct-and-circumstantial case, eyewitness accounts need not expressly describe the fatal wound; the jury may draw inferences from the totality of what witnesses observed.
- The existence of a reasonable hypothesis consistent with innocence does not, of itself, compel a directed verdict in a circumstantial case, consistent with the principle in R v JMR (1991) 57 A Crim R 39.
Legislation and Cases Referenced
Cases:
- 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
Legislation: No legislation was cited in this decision.