R v MEHMET

GINTER OSMAN MEHMET FILE NUMBER(S) : CCA 60322 OF 2003 W Terracini SC / B Rigg (Appellant) COUNSEL : D Howard (Crown)

Morgan Dardino & Co (Appellant) SOLICITORS : S Cavanagh (Crown)

LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70025/02 FILE NUMBER(S) : LOWER COURT Bell J JUDICIAL OFFICER :

[2004] NSWCCA 24 IN THE COURT OF CRIMINAL APPEAL 60322 OF 2003

LEVINE J O'KEEFE J WHEALY J

TUESDAY 24 FEBRUARY 2004 REGINA v Ginter Osman MEHMET Judgment 1 LEVINE J: On Monday 21 October 2002 the appellant was arraigned for that on 17 April 2001 he murdered Vanora Mehmet (his wife). He pleaded not guilty to the charge of murder but guilty to manslaughter. The Crown did not accept that plea in discharge of the indictment, whereupon he stood trial before Her Honour Justice Bell and a jury. On 31 October 2002, after deliberating for nearly 2 days, the jury returned a verdict of guilty of murder. On 12 December 2002 her Honour sentenced the appellant to a term of 18 years imprisonment with a non-parole period of 13½ years. He is eligible for release to parole on 16 October 2014. 2 The sole issue upon which the trial was fought was provocation. 3 The sole ground of appeal is that her Honour erred in refusing to allow cross-examination of Vanessa Whalan (the deceased's sister) and Fred Horvat (the deceased's lover) about mobile phone SMS text messages received from the deceased (in the month of March preceding the homicide) and in refusing to allow the contents of these (MFI 3) to be adduced in evidence. 4 The appellant also seeks leave to appeal against what is contended to be a manifestly excessive sentence. 5 As the ground of appeal, in its detail, is concerned with the exclusion of a discrete body of evidence, in my view it is unnecessary to embark upon a full exposition of the course of the trial. 6 The SMS messages contained in MFI 3 are "partial", that is, they are not complete. At the trial defence counsel informed her Honour that he expected to be able to prove that the SMS messages were from the mobile phone of the deceased and were made in March 2001. Those messages to the deceased's sister demonstrated an existing sexual relationship between the deceased and Mr Horvat, it was submitted, and those to Mr Horvat demonstrate daily sexually explicit communications. 7 The areas of relevance and admissibility were, at trial and on appeal, argued to be as follows. 8 First, to discredit Horvat's evidence that he was intimate with the deceased on only two occasions and thereby to give a more accurate perspective of the deceased's relationship with him. 9 Secondly, to discredit Vanessa Whalan's evidence that she did not learn that the deceased and Horvat had had an affair until after the deceased's death. By so discrediting her, the material would also have affected the credibility of her evidence to the effect that on one occasion, two days before the stabbing, the appellant had said: "Watch my eyes. If they get big, I am going to kill her". That he said this was denied by the appellant in his evidence. 10 Thirdly, to support the credibility of the appellant, because the material (MFI 3) tended to confirm the evidence that the appellant had given to the effect that he had spoken to a woman at Telstra upon receipt of the deceased's mobile telephone bill dated 25 March 2001 (exhibit 1). That woman had told him, without disclosing their contents, that the SMS messages were "dirty" and "horrific" and related to sex. The conversation with Telstra was during the afternoon of Wednesday 11 April. This is said to be important because the appellant's credibility was always going to be an issue. This was so because (amongst other reasons) he admitted at trial that his original account to the police (to the effect that the deceased had swung the knife at him, cutting his wrists and had then killed herself with the knife in the bedroom) was a lie. He himself had in fact stabbed her and then placed the knife in her hand (where it was found) and had cut his own wrists. 11 Fourthly, the evidence was relevant and admissible, so it was argued, to establish the state of mind of the deceased at the time of the making of the telephone conversations, from which an inference could be drawn as to the credibility of the appellant as to certain statements made by the deceased to him shortly before the stabbing. In the written submissions for the appellant the state of mind of the deceased is described as "exuberance at an apparently newly discovered sexual liberation". The state of mind of the deceased closely preceding the stabbing (17 April 2001) would be consistent, it was argued, with her being more likely to make the various comments that the appellant said in evidence she had made during the conversation that immediately preceded the stabbing. Those comments upon which the appellant relied as words of provocation included a comment to the effect that the deceased would take away their infant daughter, that Fred Horvat looks after her better than the appellant, that the whole marriage had been a sham from the beginning and she did not care about the appellant, that the lover "touches her better" than the appellant, that she had had several other affairs, and that Tianna was not his daughter. 12 Twice during the trial did the appellant's trial counsel seek to use and lead evidence of the SMS messages. During the cross-examination of Ms Wahlan she was asked about SMS messages and the effect of her evidence was that she "did not recall" getting any messages from the deceased that made it clear that the deceased was in a sexual relationship with Mr Horvat. The witness was shown MFI 3. Objection, properly in my view, was taken by the Crown Prosecutor to the procedure adopted by defence counsel as being contrary to s44 Evidence Act. The document was withdrawn and the appellant's trial counsel asked Ms Whalan questions about SMS messages without referring to it. These questions asked whether the witness "had any recollection" of receiving specific messages referred to, and on each occasion the witness answered "no". Objection was again taken that this contravened s44(1). In the absence of the jury trial counsel for the appellant indicated that he expected to be in a position to tender a "business record" as to the contents of the SMS messages. The bases upon which he sought to lead the evidence have been set out above. 13 At that point her Honour clearly indicated a view that she was concerned that there would be a trial of issues that were not relevant. This was in the context generally of the submissions as had been advanced for the appellant and, particularly, the Crown submission that the material had no substantive probative value (s103(1)). 14 The tendering of the material was deferred until later in trial when the appellant's case was "on the table". Her Honour then ruled in relation to the cross-examinations of Ms Wahlan and Mr Horvat as follows: "..any ruling that I make at the moment is a ruling on your question in the course of the cross-examination of Vanessa Whalan which, on the face of section 44(1) of the Evidence Act - the contents of this discussion would be irrelevant in your cross-examination of the witness, Horvat, as well but I am not cutting you off from seeking to come back to this issue in your case. At that time it will be somewhat clearer what approach you are adopting in this respect but at this stage I am not of the view that any cross-examination of Vanessa directed to undermining her credibility would be of substantive probative value so I would not allow you to cross-examine along those lines on that basis. I am not inclined at this stage to consider whether the material to which you are referring has relevance, but, as I say, that is a matter we can revisit. I am against you, Mr Button. Any cross-examination designed to elicit the representations said to have been made by the deceased in the way of the SMS messages to Ms Wahlan". 15 After the defence case her Honour had admitted into evidence extracts from the records of a marriage counsellor the deceased had consulted. Trial counsel then sought to tender the SMS messages on the basis that they were asserted to be relevant to establishing the deceased's state of mind throughout March 2001 (date of offence, 17 April 2001). It was submitted that relevance arose on the basis that "Whether or not one is passionately attracted to someone else affects the probability of one speaking bluntly and dismissively to one's spouse". In the course of legal discussion her Honour raised with the appellant's trial counsel the question of how such a proposition assisted one to "determine the probability or otherwise of the account given by the accused?" 16 The appellant's trial counsel then sought to tender the messages as being corroborative of the appellant's evidence that he was informed by a Telstra officer that the SMS messages were sexual ones, counsel noting "Everything that the accused has said in this Court will be under challenge in the jury's mind because of the ERISP and repeated lies". Whereupon her Honour remarked: "Trials would never be completed on that basis because it would be open to a person to lead evidence on a whole range of collateral issues in order to shore up the credibility of an issue not under challenge". 17 Both her Honour's remarks were indeed pertinent. 18 The incompleteness of the SMS messages was brought to her Honour's attention; the question of the messages only being for March 2001 was also raised. 19 It was pointed out that no issue had been taken in the cross-examination of the appellant as to the Telstra information about the SMS messages. The Crown at trial indicated that in the course of addresses his attention would be directed to what happened on the date of the stabbing and what was in the accused's mind and what effect the deceased's words had upon him on the issue of provocation. 20 Her Honour's ruling was as follows: "I am against you in terms of the admissibility of the text of SMS messages sent by the deceased to Fred Horvat or her sister Vanessa that happened in the month prior to her death. I am not persuaded that that material has relevance to issues in the trial and if I can turn to your second basis of admissibility, namely that the material would shore up the credit of the accused in a case where his account of the events of 17 April is under attack, albeit not that aspect of it, my view is that it is not admissible for the reason that there was no challenge to that portion of his evidence and I do not see one can, as it were, get it in on the basis that the Crown might invite the jury not to accept other aspects of his account". 21 The Crown made no specific challenge to the evidence of the appellant in relation to the Telstra information. What the Crown said as to the appellant's credibility is this: "You would be extremely cautious about accepting any of his evidence. That is not to say you would not accept some of the things he said but you would be very cautious about accepting his assertion that the killing occurred in the way that he says . The accused is a person who had demonstrated himself as an accomplished liar, a person who is prepared to say anything that will assist his cause at the time". (emphasis added)

Further, the Crown made a submission to the jury that if the jury accepted the appellant's version of what the deceased had said to him in the conversation before the stabbing, they would nevertheless find that the response reflected "anger" on the part of the appellant rather than "loss of self-control". 22 The appellant's counsel made no complaint about the prosecutor's address. Indeed, the appellant's trial counsel said during the course of his address: "There is no doubt well he lied to a number of people about all this. That is unquestionably true and that would lead you to approach what he was said afterwards with a great deal of care. That is just commonsense. I submit you would accept the accused's evidence but really the point I have been trying to make to you is that this trial doesn't turn on whether you accept the accused's evidence on its own or not and that is because there is a huge amount of evidence from persons other than the accused, such as the family of the deceased, the friends of the deceased and accused, and the expert, Dr Langlois, a huge amount of evidence". 23 With respect to MFI 3, the material contained in it is incomplete. Obvious though it may be, it is necessary to state that of course the appellant did not know of the contents of MFI 3 prior to the stabbing. The only information he had was limited to what the person at Telstra had told him. 24 I am of the opinion that her Honour was correct to the extent that she ruled that the SMS messages could have no substantive probative value on the question of the credibility of Ms Whalan generally or particularly on the critical matter: the evidence she gave of the accused threatening to kill the deceased. It is to be noted that the deceased's mother also gave evidence at trial of a similar comment by the appellant on a different occasion. It was not submitted by the appellant's trial counsel that Ms Whalan was biased or had reason to be untruthful and no application was made for the evidence to be led in rebuttal of her evidence under s106 Evidence Act. 25 I am of the opinion that the SMS messages would have minimal, if any, probative value in relation to the less important question as to when it was that Ms Whalan became aware of the deceased's affair with Horvat. 26 The same considerations in my view apply to the basis upon which it was sought to discredit Horvat's evidence that he was intimate with the deceased on two occasions only and thereby the more accurate "perspective" of the deceased's relationship with Horvat. 27 Further, I am persuaded of the correctness of her Honour's ruling that the material was not available to establish the state of mind of the deceased from which a further inference could have been drawn that she would have been more likely to have said the things that the appellant said that she did: that was highly speculative to the point where a real question arose as to whether or not the threshold for relevance in s55 Evidence Act could be crossed. I am of the opinion that it could not. It is to be noted, in any event, that the jury had evidence from Ms Whalan that the deceased could be a strong-willed person who spoke plainly about romantic and sexual matters. 28 The evidence in the trial also contained material about the appellant's own awareness of his wife's affair and his concern and anxiety about it. 29 As to the material being relevant to support the appellant's credit, this is not available. The appellant was not cross-examined on his evidence in relation to the information Telstra had given him. The concluding address by the Crown does not derogate from the proposition that at that point of the trial the Crown had not made a generalised attack upon the credit of the appellant. The Crown's focus upon reading the address could only have been understood to be attacking the appellant's credibility as to the events at the time of and leading up to the stabbing. I am reinforced in this view by the response extracted from the address by trial counsel for the appellant. As was pointed out by the Crown, there was a body of other evidence in the Crown case capable of being supportive of the appellant's version of a number of events that in fact occurred prior to 17 April 2001: the evidence of the conversation between Ms Whalan and the appellant in relation to handcuffs, lubricant and a leather belt having been found by the appellant in his wife's suitcase; Ms Debbie Franke's evidence about the appellant's discussion with her in which he said that the deceased was having an affair and in which he sought her advice about what he should do and that he was very upset; Fred Horvat's evidence that the appellant phoned him seeking his help in winning back the deceased. 30 Shortly stated, the bases of relevance and admissibility in my view have not been established, nor could they have been on any rational basis, and her Honour was correct in declining to permit the course of evidence to incorporate the material in MFI 3. 31 I am of the view that the appeal against conviction should be dismissed. 32 Although it is not necessary for the decision in this appeal to resolve the matter, a note should be made of the Crown's submissions on s6(3) Criminal Appeal Act 1912, namely that there was no miscarriage in the event of error having been found in her Honour's ruling. The Crown submitted that a reading of the appellant's evidence about the argument with the deceased leading up to the stabbing, about finding the knife in the bedroom and his absence of recollection of stabbing the deceased was simply not credible; nor was the appellant's evidence about why he lied to the police credible. The appellant's evidence about these matters would have been very difficult for the jury to accept, it was submitted for the Crown, in the light of the other evidence. That other evidence included the original account he had given to the police in his ERISP, which he admitted at the trial to have been lies, and also the false accounts he gave to his sister Ms Ioannou, that the deceased had killed herself and that he had made no mention to Ms Ioannou, nor to anyone (including the police), about the deceased taunting him in the way he subsequently asserted at trial. There was evidence that the appellant had cleaned up some of the blood from the kitchen floor and the appellant's evidence that he did this because if the deceased came downstairs and saw all the blood "she would kill me, it was a new house, I just wanted it to be clean" was also incredible. It was the opinion of the crime scene examiner that it was improbable or highly unlikely that the deceased had been killed in the bedroom as was asserted by the appellant at trial although it was conceded as possible. The Crown asserted that in the light of such matters the SMS messages could not have altered the outcome of this trial. Had it been necessary for me to consider s6(3) I would have been very much persuaded by that argument.

Appeal against sentence 33 The applicant appeals against his sentence which, to remind, was for a term of imprisonment of 18 years with a non-parole period of 13½ years. 34 In support of the ground that the sentence is manifestly excessive, the written submissions for the applicant state no more than that the circumstances of this trial and conviction and the event was such as to fall outside a range said to have been created or identified in R v Toki [2003] NSWCCA 125, in the judgment of Hidden J. To this I shall return. 35 I note the following in relation her Honour's remarks on sentence. The applicant was 36 years and 10 months of age at the time of the offence. Her Honour found beyond reasonable doubt that the applicant's intention at the time of the stabbing was to kill. Her Honour found that the killing was one of considerable ferocity, that the attack was a sustained one in which the deceased had endeavoured to defend herself. Her Honour noted the extent and nature of the wounds inflicted upon the deceased. Her Honour did not accept the applicant's account of the content of the quarrel leading up to the stabbing and did not consider it likely that the deceased had taunted the applicant that he was not the father of the deceased's daughter. 36 Further, her Honour was satisfied beyond reasonable doubt that the applicant attempted to clean up the crime, seen as an attempt to deflect suspicion from himself. Her Honour did not accept that the applicant made a genuine attempt to kill himself but was satisfied beyond reasonable doubt that he inflicted the cuts to his wrists as part of a scheme to suggest that the deceased had killed herself. 37 The jury clearly rejected the partial defence of provocation. Importantly, her Honour did accept that the offender was under very considerable emotional strain and had to some degree lost his self-control. 38 Her Honour was satisfied beyond reasonable doubt that, despite the applicant's denials in evidence at trial, he had in fact made the threats attributed to him by the witnesses Whalan and the deceased's mother. Her Honour nevertheless did consider the killing to have been unpremeditated and an uncharacteristic, violent response flowing from a loss of control brought on by "his frustration and distress" in the circumstances in which he found himself. 39 Her Honour found the appellant entitled to credit for limiting the issues to provocation thus shortening the trial. 40 Her Honour accepted the Crown's submission to assess the applicant's remorse, which he had expressed in the sentencing proceedings, with care, in spite of his admission of stabbing the deceased, and her Honour accepted that the applicant had held back from giving a truly frank account of the circumstances of the killing. 41 No application was made to her Honour that she find "special circumstances." This was regarded by her Honour as a "sensible concession" for the applicant's trial counsel to have made. 42 Due regard was paid by her Honour to the applicant's prior good record and to the psychological evidence tendered on his behalf. Her Honour noted that the psychologist suggested that the applicant would benefit from psychotherapeutic sessions to help him review his aberrant and violent behaviour and to gain insight into how to acknowledge and express feelings and emotions as they occur. 43 Her Honour, in the face of being presented with a considerable body of material as to sentences in other cases said to be "broadly comparable", correctly noted that each matter calls for the exercise of individual discretion, taking into account the circumstances of the particular offender. 44 Viewing the structure and content of her Honour's remarks on sentence, I am of the view that no error is exposed. As to the sentence to which her Honour's reasons led, I am of the view that the conclusion cannot be reached that it is manifestly excessive. 45 The decision in R v Toki (in which I was a partially concurring member of the Bench and in which I dissented on the question of sentence, as did Smart AJ) is not, in my view, authority for there being a standard sentence of 14-20 years for murder arising from domestic situations or in "relationship" situations, there being no premeditation and only one victim. In any event, the sentence imposed by her Honour can be seen to fall within, in the circumstances, such range as Hidden J was discussing. 46 Although I have had regard to the material in the table of sentences to which the trial judge was referred and to the table of sentences which the Crown provided to this Court, I am not persuaded that they in their aggregation or in their individual components identify a range from which it can be said, on any basis, that her Honours' sentence amounts to erroneous deviation. 47 I propose the following orders:

1. The conviction appeal be dismissed.
2. Leave to appeal against sentence be granted.
3. The sentence appeal be dismissed. 48 O'KEEFE J: I agree with the conclusions of Levine J and with his reasons. I too am of opinion that the conviction appeal should be dismissed and that, although leave to appeal against sentence should be granted, the sentence appeal should be dismissed. 49 WHEALY J: I agree with the reasons of Levine J and the orders his Honour proposes.

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