Ground 2: unreasonable verdict
201 The relevant facts and circumstances are set out in the judgment of the Chief Judge, and, other than as appears necessary, I do not propose to restate them.
202 In my opinion, that the ground should fail is best illustrated by a chronological examination of the facts implicating the appellant. In dealing with this evidence, I have not overlooked that a good deal of it was necessarily given in hearsay form. Nor have I overlooked that there is a degree of uncertainty about the timing of some of the events described. Certain of the facts have been derived from two interviews of the appellant by police, which were in evidence. With those limitations in mind, it seems to me that the following are the relevant facts and circumstances, in as near to chronological sequence as I can ascertain.
203 The relationship between the appellant and Ms Bayrak began sometime in 2002. Her daughter Tutku and his son Mert attended the same primary school. Ms Bayrak was then living in Rose Hill. The relationship became quite intense on the part of the appellant and he proposed marriage. Ms Bayrak rejected the proposal. She terminated the relationship in July 2003. There is little evidence of the impact of the termination upon the appellant at that stage; there was no evidence that he was unduly distressed or otherwise affected by the end of the relationship. In early November Ms Bayrak entered into a short term relationship with another man, Hasan Kilic. That relationship ended, apparently amicably, in April 2003. There is no evidence that the appellant was aware of this relationship, or, if he were, that it affected him in any way.
204 In 2003 and again in 2004 Ms Bayrak travelled to Turkey, where, on the second occasion, she remained for some weeks. She returned in June 2004. There was evidence from which it could be inferred that the appellant was aware of her having travelled to Turkey, but not, initially, of her return. He appears to have learned of her return by a chance encounter with her in the Auburn shopping centre in early 2005. (Evidence of this is contained in the appellant's first interview with police.) According to him, he then saw Ms Bayrak four or five times in the Auburn area. He said that he did not ask, and Ms Bayrak did not tell him, where she was then living.
205 Ms Feliz Yavuz, who employed Ms Bayrak as a casual cleaner, gave evidence of an occasion, in May or June 2005, when Ms Bayrak showed her a fruit platter that the appellant had given her as a gift. Ms Bayrak told Ms Yavuz that she did not wish to accept it, but also did not wish to hurt the appellant's feelings.
206 On 17 May 2005 Ms Bayrak and her daughter Tutku took up public accommodation in Crown Street, Merrylands. They remained in that accommodation until 25 October 2005. While they were living there, there were a number of incidents of which evidence was given. Her car was damaged on more than one occasion. On one such occasion the brake linings were cut, on another a jelly like substance was placed in the petrol tank. On another the number plates were stolen. (There is nothing, other than suspicion, in the evidence to link the appellant with any of these incidents.)
207 On 5 June 2005 the appellant telephoned Ms Bayrak. The content of this call is not known. The following day, 6 June, Mr Mehmet Uluc conducted an unauthorised search of Centrelink records and gained access to Ms Bayrak's address. Mr Uluc was an acquaintance of the appellant who was employed by Centrelink. He was charged with and pleaded guilty to a number of offences arising from this and subsequent unauthorised searches. Mr Uluc's evidence was quite unsatisfactory: initially, he denied having carried out the searches at the request of the appellant; subsequently, he admitted that he had done so, at least on 4 November. (Telephone calls from the appellant's telephone to Mr Uluc's telephone left open a clear inference that on each occasion that Mr Uluc accessed Ms Bayrak's personal details, it was at the instigation of the appellant. Mr Uluc denied knowing Ms Bayrak, and there was no evidence to contradict that.)
208 In any event, the evidence showed the following: on 6 June 2005, at 11.08am, a call was made from the appellant's mobile telephone to Mr Uluc's mobile telephone. At 11.20am Mr Uluc made an unauthorised search of Ms Bayrak's personal details.
209 On a date that cannot be precisely ascertained, the appellant and his son made an unannounced call on Ms Bayrak and her daughter as their Crown Street unit. The reason given was that the appellant's son missed his friend Tutku and wished to see her. The timing of the visit, in conjunction with the evidence of Mr Uluc's search of the Centrelink records, left the clear inference that the appellant obtained Ms Bayrak's address from Mr Uluc.
210 In his interviews, the appellant denied ever having visited Ms Bayrak at Crown Street. The evidence that he did in fact do so was very powerful, and the Crown relied upon his denial as a material lie evidencing consciousness of guilt. The jury was fully directed about this and no complaint is made about the directions.
211 On 29 June 2005 the poem submitted by the appellant to the Turkish newspaper by the appellant was published. This clearly indicated that he retained, or had re-developed, strong feelings for Ms Bayrak.
212 As a result of the various incidents that had taken place at Crown Street, Ms Bayrak and her daughter were allocated alternative housing at Parramatta. On 25 October they moved to the new premises at Betts Street.
213 In October or November 2005 Ms Bayrak was shopping at a shopping centre at Homebush. The appellant called her on her mobile telephone. She told him that she was busy, but he replied that he knew where she was, that she was shopping at Ikea. He said that he wanted to chat to her, that it would only take five minutes, and he would never "bug" her again. (Telephone records of calls from the appellant to Ms Bayrak's phone suggest that this may have been on 29 October 2005.) An inference was available that the appellant was keeping Ms Bayrak under surveillance.
214 On 1 and 2 November the appellant telephoned Mr Uluc five times. The content of these calls is not known. However, on 4 November Mr Uluc twice searched Ms Bayrak's records. The second of these searches was at 2.32pm; at 2.35pm Mr Uluc telephoned the appellant. It is a reasonable inference that he conveyed to the appellant Ms Bayrak's new address.
215 Three days later, on 7 November, Ms Bayrak telephoned the appellant, and later that evening (at 10.48pm) sent him a text message. The content of these communications is not known.
216 On 9 November 2005 Ms Bayrak told one of her employers, Edrun Gundus, that she had been at the Auburn shops and that the appellant had been following her. He asked "don't I deserve a hello?".
217 On (an unspecified) occasion, while she was living at Crown Street, Merrylands, Ms Bayrak told Ms Gundus that she had heard a noise and seen a shadow at her balcony. The following morning she found that a rubbish bin had been pulled to underneath the balcony, apparently to provide access or a viewing platform. (There was nothing to link the appellant with this.)
218 Just two weeks before Ms Bayrak's death (11 November) she and Mr Tunc were at her unit in Betts Street, Parramatta. Ms Bayrak was telling Mr Tunc about an argument she had had with her father. She was upset and crying. The appellant sent her a text message in the following terms:
"Sevda you are sad and crying I feel it."
219 This was just before 1am. In the next 45 minutes the appellant sent six text messages to her telephone. It could readily be inferred that the appellant was in the vicinity of her unit, sufficiently nearby to be able to see her state of distress.
220 On 21 November 2005 Ms Bayrak was at Ms Yavuz's home. She took a mobile telephone call. She told Ms Yavuz that the appellant had rung and asked her why she had changed her number plates, and if it was so that he could not follow her. She said that she told him that she had changed the number plates because hers had been stolen. She told Ms Yavuz that she did not know how the appellant knew that the number plates had been changed. (That the appellant made this enquiry would tend to exculpate him from involvement in at least one of the instances of vandalism. If he had removed the number plates, why would he ask her that question?)
221 On 23 November 2005 the appellant telephoned Centrelink to report that Ms Bayrak was working and in receipt of income that she did not disclose for social security purposes.
222 On 25 November the appellant twice telephoned Ms Bayrak but she did not answer the phone. That day his current girlfriend went to the Gold Coast for a holiday.
223 It was late on the following day that Ms Bayrak was murdered.
224 Those circumstances together show, in my opinion, a considerable degree of interest in Ms Bayrak on the part of the appellant. It may well be that it appeared to the jury to have escalated in intensity as time progressed.
225 When those facts are put together with the DNA evidence, the overall picture presented is one upon which it was open to the jury to conclude that the appellant was the perpetrator of the murder.
226 It is true that there are countervailing circumstances.
227 As part of its case, the Crown relied upon three lies which it claimed had been told by the appellant, evidencing a consciousness of guilt. These concerned his denial that he had visited the Crown Street address; a claim that he did not know Ms Bayrak's address at Betts Street; and a claim that he did not ask for or receive details of her address from Mr Uluc.
228 The second and third of these may well have been seen as equivocal; the manner in which the appellant obtained Ms Bayrak's address involved Mr Uluc in criminality. No doubt the appellant was well aware that obtaining the address in the way he did, at the least, involved an impropriety on the part of Mr Uluc. It is more difficult to explain the clear lie that he did not ever go to the Merrylands unit. The evidence that he did so was very strong indeed.
229 There was also evidence, never explained, that Mr Uluc had searched Ms Bayrak's Centrelink records as early as 2001, before the appellant met her.
230 By way of final submission, senior counsel for the appellant put five distinct propositions. These were: firstly, that the three lies relied upon by the Crown were explicable on another basis. As to the second and third of the lies, I would agree; I have already made my comments in relation to the first.
231 Secondly, it was submitted on behalf of the appellant, the campaign of damage at Ms Bayrak's Merrylands address could not safely be attributed to the appellant. I would accept this.
232 Thirdly, it was submitted, the DNA evidence does not strongly implicate the appellant, and yet, it was said, that is the only evidence that directly connects the appellant with the crime scene. I find this proposition difficult to accept. The appellant's case was that he had little or no physical contact with Ms Bayrak for some time.
233 One possible explanation put forward to the jury about the hair was that it may have been picked up on Ms Bayrak's thumbnail after she had been stabbed, and while her blood was still liquid. This depended upon the hair having been present at the scene (see the judgment of McClellan CJ at CL at [40]). That is hardly a convincing explanation, given that the appellant claimed never to have been at the Betts Street unit. The submission thus depended further upon the evidence that there was a 1 in 100 possibility that its source was somebody other than the appellant.
234 The fourth submission made on behalf of the appellant was that his alibi could not be discounted beyond reasonable doubt; that the discrepancies were minor and natural; and that it was unlikely - even incredible - that the appellant would falsely nominate his neighbour as an alibi witness soon after the offence. These are legitimate points to make, but are points that were properly put to the jury and no doubt considered by them in the context of the whole of the evidence. I do agree that the discrepancies could be attributed little weight.
235 The final submission pointed to the possible involvement of Mr Tunc. It is true that considerable suspicion was thrown upon Mr Tunc and it was a central plank of the appellant's defence that Mr Tunc was, or might have been, the perpetrator. Again, however, this is a matter that was properly put before the jury and considered by them.
236 Having regard to the chronology of events outlined above, I am satisfied that the verdict of guilty was one which was open to the jury upon the whole of the evidence.
237 Accordingly, I agree with the Chief Judge that this ground of appeal should be rejected. I would dismiss the appeal against conviction.
238 FULLERTON J: I have read the judgments of McClellan CJ at CL and Simpson J. I agree with Simpson J that Ground 1 of the appeal should fail and with her Honour's reasons for coming to that view. I also agree with Simpson J that the appeal against conviction should be dismissed.