R v Yavuz (No. 2) [2017] NSWSC 1705

R v Yavuz (No. 2) [2017] NSWSC 1705

The cross-examination of Mr Elmrabt, particularly after he had been accused of lying and being dishonest, amounted to an assertion or implication that his evidence about the accused threatening to kill the deceased was fabricated or reconstructed, so s 108(3)(b) was engaged and the 000 call was highly probative. However, because the recording was not available to the defence when Mr Elmrabt was cross-examined, admitting it after that cross-examination would unfairly prejudice the accused in a way that recalling the witness could not cure. Under s 137, the danger of unfair prejudice outweighed the probative value, so the tender was rejected. The jury was then discharged because, despite...

Jurisdiction
Australia
Judgment Date
08 December 2017
Procedural Posture
Criminal Trial for Murder / Voir Dire on Crown Tender of 000 Call; Application to Discharge Jury
Outcome
Crown tender of the 000 call DVD and transcript rejected; jury discharged.
Legal Topics
['credibility Rule' 'prior Consistent Statements' 're Establishing Credibility' 'contemporaneous Statements' 'unfair Prejudice' 'discharge of Jury']
['criminal Law' 'evidence' 'criminal Procedure'] ['credibility Rule' 'prior Consistent Statements' 're Establishing Credibility' 'contemporaneous Statements' 'unfair Prejudice' 'discharge of Jury']

Case Brief

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Procedural Posture

Criminal Trial for Murder / Voir Dire on Crown Tender of 000 Call; Application to Discharge Jury

Legal Issues

  1. 1 ['Whether the Crown should be permitted to tender the DVD and transcript of a 000 call made by Youness Elmrabt under s 108(3)(b) of the Evidence Act 1995 (NSW) and in reliance on s 66A.' 'Whether cross-examination of Youness Elmrabt asserted or implied that his evidence was fabricated or reconstructed.' 'Whether the probative value of the 000 call was outweighed by the danger of unfair prejudice to the accused under s 137 of the Evidence Act 1995 (NSW).' 'Whether the jury should be discharged after rejection of the tendered evidence.']

Ratio Decidendi

The cross-examination of Mr Elmrabt, particularly after he had been accused of lying and being dishonest, amounted to an assertion or implication that his evidence about the accused threatening to kill the deceased was fabricated or reconstructed, so s 108(3)(b) was engaged and the 000 call was highly probative. However, because the recording was not available to the defence when Mr Elmrabt was cross-examined, admitting it after that cross-examination would unfairly prejudice the accused in a way that recalling the witness could not cure. Under s 137, the danger of unfair prejudice outweighed the probative value, so the tender was rejected. The jury was then discharged because, despite...

Court Disposition

Crown tender of the 000 call DVD and transcript rejected; jury discharged.

Orders

  • ['Reject the tender by the Crown of the triple 0 call made by Youness Elmbradt.' 'Jury discharged.']