R v MEHMET [2004] NSWCCA 24

New South Wales Court of Criminal Appeal

CITATION : R v MEHMET [2004] NSWCCA 24 HEARING DATE(S) : 16 February 2004 JUDGMENT DATE : 24 February 2004

JUDGMENT OF : Levine J at 1; O'Keefe J at 48; Whealy J at 49 DECISION : 1. Conviction appeal dismissed.; 2. Leave to appeal against sentence granted.; 3. Sentence appeal dismissed.

CATCHWORDS : Provocation - SMS text messages - admissibility - relevance CASES CITED : R v Toki [2003] NSWCCA 125 REGINA

PARTIES : v

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)