R v Alipek [2006] VSCA 66

1 The applicant, Hassan Huseyin Alipek, was convicted of the kidnapping and attempted murder of Hulya Cavus and sentenced to a term of 14 years' imprisonment with a non-parole period of 11 years. The applicant's co-offender, Jason Maxwell Saltmarsh, was acquitted on counts of kidnapping and attempted murder and convicted of intentionally causing serious injury to Cavus. The applicant now applies for leave to appeal against his conviction and sentence.

2 The kidnapping and attack on Cavus occurred on 6 October 2002. For about the past two years the applicant and Cavus had been friends. The applicant and Cavus met through a work connection. They are both Turkish. They shared an interest in Turkish culture and they mixed in the same circle of friends. Cavus described their relationship as platonic but observed that about six to 12 months before the attack the behaviour and attitude of the applicant had changed. Cavus was married but separated and had three teenage children. She recounted at trial episodes at trial when at the home of a mutual friend the applicant had tried to kiss her. Cavus also said that, more than once, the applicant had asked her to marry him. Cavus rejected the applicant's approaches and proposals. On one occasion, she became upset and the applicant was displeased with her response to him. However, Cavus said that, notwithstanding her rejections, she and the applicant remained friends.

3 Cavus gave evidence at the joint trial of the applicant and Saltmarsh that the applicant began to monitor her movements and accused her of seeing another man. On one occasion, a few months before the attack, when Cavus was driving out of the driveway of her home, she saw the co-accused Saltmarsh standing on the street corner. Cavus said her eyes locked with those of Saltmarsh and then he turned and walked the other way. Cavus did not believe Saltmarsh had ever been to her home, or for that matter, knew where she lived. A few days after this incident, Cavus and a friend went to meet the applicant at a car park. Saltmarsh was there with the applicant. When Cavus asked Saltmarsh why she had seen him at the street corner previously, the applicant interrupted and told Saltmarsh not to answer the question and to go away.

4 On 1 October 2002, five days before the kidnapping and attempted murder incident, the applicant telephoned Cavus sounding upset and confused. Cavus left where she was, went home and then went out again to meet the applicant at a café. At the meeting the applicant told Cavus that he was desperate for money because of gambling. He said he needed money or he would lose his job. Cavus had lent money to him previously. She told the applicant that she would see what she could do. On 4 October 2002 Cavus met the applicant again and gave him the money he had requested. On the evening before the attack, 5 October 2002, a birthday celebration for a mutual friend of Cavus and the applicant was held at a Turkish restaurant. The friend's name was Navabut Kar. Kar invited the applicant, Saltmarsh, two other friends called Sir and Hakam and, at the request of the applicant, Cavus. The applicant had told Kar that he would not attend the celebration unless Cavus was invited.

5 Cavus arrived at the restaurant at about 9:00pm or 9:30pm. She took photographs of the evening that were tendered at trial. They show the group celebrating throughout the evening. Cavus said that during the evening she spoke to the applicant briefly. The group left the restaurant at about 1:00am. The applicant asked Cavus if she was going to go out further. Cavus said she was not, went to her car and drove away. As Cavus drove off she saw Saltmarsh and the applicant in the latter's car with Kar. After driving away, Cavus decided not to go home but instead to go to a nightclub called "Monsoons" at the Grand Hyatt Hotel in Russell Street, Melbourne. Cavus was a member of the nightclub and attended it regularly. When Cavus arrived at Monsoons, she met up with some other people who were part of a separate group at the Turkish restaurant earlier, as well as a fellow employee.

6 Shortly afterwards, the applicant arrived at the nightclub. He abused Cavus and yelled and screamed at her. He told her she should not be there at the nightclub and that he was taking her home. Cavus refused to leave. The applicant told her that she was going with him and proceeded to grab Cavus by the wrist and pull her away. Some bystanders tried to intervene but the applicant remained upset and angry so Cavus went out to a lobby to talk to the applicant.

7 Out in the lobby the applicant demanded to know what Cavus was doing in the nightclub. She responded saying it was none of his business. The applicant stood over Cavus and demanded to take her home. He continued to grip her wrist and walked Cavus out of the lobby and led her away to his car where Saltmarsh was sitting in the driver's seat with the engine running. The applicant pushed Cavus into the rear seat, locked the door and went around to the other rear door and sat next to Cavus. She gave evidence that the applicant spoke to Saltmarsh and said: "Go, go, you know where to go, Jason, just go". Cavus told the applicant she did not want to go but that he spoke to her in Turkish saying, "No, you are coming, I am going to take you to your death road, there is no going back now, this is it, this is your one way". Cavus said that as they were driving the applicant repeatedly hit her in the face and the chest. She pleaded for Saltmarsh to stop but he said he did not want to be involved and was doing as he was told. Cavus gave evidence that she heard the applicant say to Saltmarsh not to listen to her and to go. Cavus said Saltmarsh was not given any directions as to where to go.

8 They travelled north from the city towards Broadford and turned off at the Broadford-Flowerdale Road and eventually stopped on that road near the intersection with Cunningham's Road. Over the course of this long journey, Cavus said she and the applicant smoked a couple of cigarettes. She also gave evidence that while travelling the applicant told her he would look after her children and that she should not worry. Cavus said the applicant told her he was going to kill her. She also said that Saltmarsh told her she should not have been there. They eventually stopped. There had been no discussion as to when or where Saltmarsh was to stop. Saltmarsh stopped at the point where the applicant's car was later found.

9 Upon stopping, Saltmarsh got out of the car (possibly to drink a beer or smoke a cigarette) and got back into the car a few minutes later, whereupon the applicant, still in the car, asked Saltmarsh to get a petrol container from the boot of the car. Cavus asked Saltmarsh to help and he said "I will not get involved, I am just doing what I am told". Saltmarsh complied and handed the applicant a can of petrol through the front driver's door and the gap between the front seats. The door next to Cavus was locked but capable of being unlocked. Cavus said she heard the applicant say to Saltmarsh: "No, this - that's it, she's dead, she's dead, there is no going back now". Cavus said she was emotional and crying, shaking and did not know what was happening.

10 She was aware that Saltmarsh was no longer present. A minute later the applicant opened the lid of the petrol container and started pouring it over the head and body of Cavus. Cavus said the applicant grabbed a lighter and set her alight. She said a minute later she heard the applicant getting out of the car and she was burning. She could see flames and that her whole body was alight. Cavus said she heard Saltmarsh say "Get away, the car is going to explode". After the applicant got out of the car, Cavus tried to kick the door open. She was screaming. She managed to open the car and throw herself into a puddle on the ground. While this was happening Cavus said she heard the applicant saying "Help me. Help me, Jason. Help me, Jason". Cavus said no-one helped her. Next, she said she got up and started to walk in the direction from where they had come. Cavus said she just kept walking and was in shock. Her upper clothing was burnt; nothing was left of a short sleeved top that she wore before the fire. Cavus recalled the applicant speaking to her as she was walking. Eventually, all three, Cavus, Saltmarsh and the applicant were picked up by the driver of a utility, Robert Milner. He gave evidence that he was on his way to work at about 5:00am driving along the Broadford-Flowerdale Road. He saw a car burning and then a little way along the road he saw three people, two men and one woman. The woman was badly burnt and one male was burnt up the arm. They requested a hospital. The three got inside the utility. When inside the vehicle, Milner said one of the men, the applicant, spoke to the women in a foreign language. The applicant sat next to Cavus in Milner's vehicle. She said he told her he was sorry and to say that it was an accident. The three were conveyed to a hospital where Cavus and the applicant were both treated for burns. Cavus was later taken to the Alfred Hospital.

11 The mutual friend of Cavus and the applicant, Selin Sir, went to see the applicant on the morning of 6 October 2002, the morning after the incident. She gave evidence that in the conversation the applicant was unclear and difficult to understand. She said that the applicant told her that he had petrol in the car, that they were smoking and somehow the petrol caught fire. The witness said the applicant told her the fire must have started from cigarettes, or that either Cavus or the applicant dropped cigarette ash. In cross examination, Sur agreed that in the conversation the applicant did not profess to know how the fire started.

12 Also on the morning of 6 October 2002, the sister of Cavus, Azize Elidemir, saw the applicant in hospital. She gave evidence that the applicant was distraught during the conversation. She said the applicant told her it was an accident, that the car was leaking petrol, that he was carrying a can of petrol in the car, that they were smoking and that either he, the applicant, or Cavus dropped a cigarette or a cigarette butt or ash had fallen into the can of petrol between the foot of Cavus. The daughter of Cavus, Aysel Cavus, was present during this conversation and gave similar evidence as to what the applicant said.

13 Medical evidence at the trial disclosed that Cavus suffered surface area burns to forty percent of her body and that thirty-five percent of those burns were full thickness (or third degree) burns. The burns were predominately to her arms, face, head and neck, upper chest and back. Cavus also suffered from soot in her airways. Upon being hospitalised, Cavus was placed in an induced coma for two weeks and remained in hospital for two months. She underwent a series of post incident operations. At the trial, 18 months after the event, Cavus said that she anticipated further surgery, that she suffered restricted movement in her right arm and neck and that part of her ear was removed due to the severity of the burns.

14 The applicant suffered burns to his arms and hands and a small area of the upper chest and torso. He suffered burns to twelve percent of his body, nine percent of which were full thickness burns.

15 Evidence was also given at the trial by Dr David Wells, Forensic Physician of the Victorian Institute of Forensic Medicine, as to the injuries of Cavus. He considered two scenarios: firstly, that of petrol having being poured over Cavus and ignited; secondly, that of the explosion of a container of petrol at or near the feet of Cavus. Dr Wells was unable to reconcile the absence of burns to the lower body and legs of Cavus and the second scenario. He considered the victim's burns were consistent with petrol having being poured over her and being set alight. Dr Wells stated that the injuries of the applicant were consistent with the applicant having poured petrol over Cavus and setting it alight whilst in close proximity.

16 On the morning of 6 October 2002, the police went to the scene and found a can of petrol in front of the wheel arch on the off-side of the car. It was then under the car, squashed by the car having lowered onto the can when the tyres and road springs collapsed in the fire. It did not show any signs of distension or other damage consistent with internal ignition and explosion. The vehicle was found burnt out. There was no evidence, on analysis, of any defect to the fuel tank or fuel system such as to have caused or contributed to the fire.

17 When first interviewed by the police, the applicant spoke to Detective Sergeant Jones at 9:35am at the hospital. Jones gave evidence that the applicant stated he was driving at the time of the incident and smoking cigarettes. He told Jones that he had petrol in the back seat and had forgotten to put it in the boot. Jones said the applicant told him he could not remember what had happened or who was driving. He said they were driving along and that he had been drinking.

18 In his record of interview the applicant gave his version of events. He said that the group had been out to dinner and arranged to meet at the nightclub. He said Cavus "felt like some air" and they went for a drive. He said Saltmarsh drove because he had not consumed as much alcohol as him. The applicant stated that he had a container of petrol in the car lodged in the foot well and that it would have been between the feet of Cavus as they were driving. He said they stopped and Saltmarsh got out of the car. The applicant said he and Cavus were smoking when flames suddenly burst out all over. He said he leaned over her, opened the car door and pushed Cavus out. In a further record of interview the applicant maintained his earlier version of events. He also said that he and Cavus had what he described as a "sexual experience" when they rubbed against one another but that they did not have intercourse because Cavus was menstruating. The applicant said there was remnant blood on his underwear. The applicant's underwear was subjected to DNA testing. It revealed bloodstains. Mixed DNA was found in the crutch area of the applicant's underpants consisting of his DNA and that of another person but not that of Cavus.

19 The applicant and Saltmarsh were both tried together on counts of attempted murder, kidnapping and intentionally causing serious injury. Both accused pleaded not guilty to all counts and stood mute. The applicant was convicted of attempted murder (count one) and sentenced to 12 years' imprisonment; he was convicted of kidnapping (count two) and sentenced to five years' imprisonment. The trial judge ordered that three years of the sentence on count two be served concurrently with count one, being a total sentence of 14 years and a non-parole period of 11 years was fixed. Saltmarsh was convicted of intentionally causing serious injury.[1]

20 The defence case for the applicant was that he was not responsible for tipping petrol on Cavus or setting it alight and that there was insufficient evidence adduced for the Crown to establish beyond reasonable doubt that the applicant was the perpetrator. Further, the defence of the applicant was that neither the applicant's version of events (as initially told to Detective Sergeant Jones) nor Cavus' version were correct. It was put that the recollection of Cavus was doubtful and that, in fact, she had no recollection and should not be believed because of things she said to doctors and communications with family members in hospital and the fact that she was in a coma for two weeks after the event. It was put that the version of events given by the applicant to Detective Sergeant Jones at the hospital was unreliable because the applicant could not recall what had happened. It was put that the circumstances surrounding a cigarette lighter found at the scene meant that it could be excluded from having been used to start the fire. It was suggested as more likely that Saltmarsh had a cigarette lighter at the scene to light a cigarette.

21 The applicant appeared in person on the application (assisted by an interpreter). There was one ground of appeal; that the verdict was unsafe and unsatisfactory. The applicant made several arguments in support of this ground. The applicant complained, first of all, that in the charge to the jury the trial judge erroneously stated: "Did he set fire to her in the back seat of the car with the petrol can or did a can or some such thing ignite spontaneously as a result of accident". The applicant submitted that his defence, that the petrol came from outside the vehicle was prejudiced by the way the matter of the petrol was charged to the jury. I have carefully considered the evidence and the charge. In my view the trial judge put the question properly to the jury insofar as it related to the applicant.

22 Secondly, the applicant particularised the ground of appeal against conviction by alleging a series of complaints against various Crown witnesses. He complained about inconsistencies in the evidence of Cavus with respect to several things: the nature of their relationship, dancing at the Turkish restaurant, conversations as to plans after the restaurant, the locking of the car door, the failure of Cavus to try to escape from the applicant, their departure from the nightclub, the date and location of the meeting a few days beforehand and the dispatch of text messages by Cavus to the applicant. The applicant referred to alleged specific differences between statements to the police, evidence at the committal and trial by Cavus on all these topics.

23 Ultimately, Cavus, the main Crown witness, gave evidence in chief and was cross-examined by counsel for both accused and re-examined. It was for the jury to accept or reject her evidence. In addition, there was sound forensic evidence given at the trial that, in part, at least, enabled the jury to determine its verdict. This all goes to the question of the credit of the witnesses, in particular, the credit of the only person to give evidence who was present in the car and at the fire, Cavus. Her credit was critical. On the basis of the evidence adduced, and, especially that of Cavus, the question for the jury to determine was exactly as his Honour put it. Accordingly, there was no prejudice to the applicant of the type which he complains.

24 Thirdly, the applicant complained about the evidence of a number of other witnesses. He complained that witnesses at the nightclub[2], and the witness at the Turkish restaurant[3] were not interviewed by the police until almost one year after the event and gave, in effect, prior inconsistent statements. The applicant also complained about inconsistent statements of Selin Sir as to conversations about plans after the restaurant. The applicant further complained about inconsistencies in the evidence of the utility driver, Milner. Again these were matters of credit for the jury to consider. I am unable to identify any aspect of the evidence that was inappropriately left to the jury to consider for the purposes of reaching the verdicts.

25 Fourthly, the applicant complained about evidence given by Sergeant Derrick Maxwell with respect to statements made to him by Saltmarsh. Those matters were irrelevant as the evidence was only admissible in the trial of Saltmarsh and were not admissible with respect to the trial of the applicant. This argument was not made out.

26 Fifthly, the applicant catalogued a series of pieces of evidence that he submitted demonstrated his innocence: the lending of money to him by Cavus; his fondness and love for her and their friendship; a security tape showing Cavus "willingly" leaving the nightclub lobby and the evidence of witnesses as to the demeanour of Cavus and the applicant at the time; the presence of beer and cigarettes and the lighter owned by Cavus in the car; the time available to Cavus to escape once the petrol can was being opened (on her version of events); the fact that both Cavus and the applicant were burned and that Saltmarsh was outside the car; the consumption of alcohol over the evening including by Cavus; the unidentified blood on the applicant's clothing; that Cavus had a memory of events created by influential relatives and friends who disliked the applicant; and the close relationship between the applicant and Saltmarsh. All these matters were questions for the jury and were relevant to the Crown case. There was evidence put to the jury to reach the verdicts it did. I would not disturb them.

27 Finally, the applicant complained as to the way in which his case was conducted and also the failure of the Crown to provide copies of evidence to him personally. None of these matters were complained about at trial. Further, on my examination of the evidence and the transcript of the submissions and the charge, there is no basis I am able to identify to support the applicant's complaint.

28 In my view the usual bases for an unsafe and unsatisfactory verdict are not made out.[4] In my view the application for leave to appeal against conviction should be dismissed.

29 I turn then to the application for leave to appeal against sentence. There was a preliminary matter raised by Mr McArdle for the Crown. He identified that the trial judge was informed that the offence of kidnapping at common law was one in which the penalty was at large and that his Honour had acted on that basis. As Mr McArdle identified, the submission to the trial judge was incorrect. Section 320 of the Crimes Act 1958 as inserted by s. 56 of the Sentencing and Other Acts (Amendment) Act 1997 prescribes a maximum penalty of 25 years for the common law offence of kidnapping. In any event, Mr McArdle submitted that the misstatement by his Honour of a maximum penalty did not necessarily invalidate the sentence and urged the approach taken by this Court on other occasions: see R. v. R.J.E.[5]; also R. v. Beary[6]. In my view, although an error occurred, ultimately it had no impact upon the sentence reached by his Honour. No material error has been made out in this respect.

30 There were two grounds of appeal against sentence. Ground one was that the individual sentence, the total effective sentences and the non-parole period were manifestly excessive having regard to sentences in similar cases, orders for accumulation and the matters raised in ground two. The second ground of appeal was that his Honour erred in failing to accord sufficient weight to matters of mitigation, namely, the background of the appellant, his personal circumstances and the delay between the offending and the passing of sentence.

31 It is convenient to deal with ground two first. His Honour set out in considerable detail the personal circumstances of the applicant. It is unnecessary to revisit those circumstances in any extensive detail save to observe that the applicant was born on 6 June 1968 and immigrated to Australia as a political refugee in 1998. He suffered emotional and financial problems and, also, from excessive consumption of alcohol. He had been admitted to Royal Park Psychiatric Hospital and later spent time in Thomas Embling Hospital and St Paul's Psychiatric Unit. The learned judge had before him a report of a consultant clinical psychologist, Mr Bernard Healey, who assessed the applicant as clearly paranoid about events and persons in his surrounds. His Honour also considered a previous conviction of the applicant on one charge of recklessly causing serious injury and one charge of intentionally causing injury. In my view, the learned judge set out in sufficient detail the background and personal circumstances of the applicant and clearly accorded appropriate weight to those matters appropriate for mitigation. As to the matter of delay, the trial proceeded approximately 18 months after the incident. There was no matter before the Court to indicate any delay of an untoward nature in this regard. In my view ground two is not made out.

32 I turn then to ground one. The maximum penalty of the offence of attempted murder is 25 years' imprisonment. His Honour observed that the penalties imposed tend to be considerably less, often no more than ten years.[7] However, as the learned judge observed, the attempted murder of which the applicant was convicted was a bad case. It was a vile and horrific crime that caused dreadful pain and permanent disability and disfigurement of Cavus. Indeed, the case was a bad example of attempted murder. So far as the orders for cumulation were concerned, the orders made by the trial judge were appropriate. Overall, the sentence was within range. I make this conclusion in light of the gravity of the offences in taking Cavus away against her will followed by the perpetration of dreadful pain and suffering. As for any basis of manifest excess with respect to matters of mitigation, I have dealt with those matters already and do not consider it necessary to canvass them further. In all the circumstances, therefore, it follows that I do not consider ground one is made out. I would dismiss the application for leave to appeal against sentence.