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Court of Criminal Appeal 24 February 2004

R v MEHMET

[2004] NSWCCA 24

HomicideDomestic & family violence
PROVOCATION SMS TEXT MESSAGES ADMISSIBILITY RELEVANCE

Citation: R v Mehmet [2004] NSWCCA 24
Court: New South Wales Court of Criminal Appeal
Date: 24 February 2004
Judge(s): Levine J, O'Keefe J, Whealy J

Background

The appellant was convicted of the murder of his wife following a jury trial before Bell J in the Supreme Court. He had pleaded not guilty to murder but guilty to manslaughter, a plea the Crown did not accept. After nearly two days of deliberations, the jury returned a verdict of guilty of murder in October 2002.

The sole issue at trial was provocation. The appellant claimed that his wife had made a series of highly provocative statements to him immediately before the stabbing, including that she would take their infant daughter away, that her lover satisfied her better, that the marriage had been a sham, that she had had several affairs, and that their daughter was not his child. He admitted his initial account to police was a lie: he had in fact stabbed his wife and placed the knife in her hand, and had cut his own wrists himself.

The appellant was sentenced to 18 years imprisonment with a non-parole period of 13 and a half years. He appealed against both conviction and sentence.

  • Whether the trial judge erred in excluding SMS text messages sent by the deceased to her sister and her lover in March 2001, approximately one month before the killing
  • Whether those messages were admissible and relevant for the purposes of: (1) discrediting the evidence of two Crown witnesses; (2) supporting the appellant's own credibility; and (3) establishing the deceased's state of mind as tending to confirm she would have been likely to make the provocative statements alleged
  • Whether the sentence of 18 years with a non-parole period of 13 and a half years was manifestly excessive

Decision

The single ground of the conviction appeal concerned Bell J's refusal to permit cross-examination of the deceased's sister and lover about partial SMS text messages (tendered as MFI 3), and her refusal to allow their contents into evidence. The messages were said to reveal an ongoing sexually explicit relationship between the deceased and her lover. The defence advanced four bases for admissibility: discrediting the two witnesses, supporting the appellant's credibility, and establishing the deceased's state of mind in the period before the killing.

Levine J found no error in her Honour's ruling. The trial judge had concluded that cross-examination directed to undermining the witnesses' credibility using the messages would not be of substantive probative value. Her Honour had also been entitled to refuse to admit the messages as evidence of the deceased's state of mind in March 2001 to support the likelihood of her making provocative statements in April 2001. The messages were partial, and the inferential chain required to connect a state of mind in March to specific statements made a month later was not sufficient to establish the requisite relevance.

On sentence, Levine J rejected the submission that 18 years with a non-parole period of 13 and a half years was manifestly excessive. His Honour noted that her Honour had correctly approached the task by treating each case individually, had given due weight to the appellant's prior good character and psychological evidence, and had acknowledged the concession that special circumstances existed. The Court also clarified that R v Toki does not stand for the proposition that there is a standard sentencing range for domestic homicides involving no premeditation and a single victim. O'Keefe J and Whealy J agreed with Levine J's reasons and conclusions in full.

Orders Made

  • Conviction appeal dismissed
  • Leave to appeal against sentence granted
  • Sentence appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that partial SMS messages sent by a deceased victim approximately one month before a killing were properly excluded where the inferential chain connecting them to the deceased's likely state of mind at the time of the offence was insufficiently probative.
  • Cross-examination of witnesses designed to undermine credibility using prior statements can be excluded under s 44 of the Evidence Act where the material lacks substantive probative value, even when the sole trial issue is provocation.
  • In dismissing the sentence appeal, the Court reinforced that sentencing for murder in domestic circumstances requires individual discretion and cannot be reduced to a standard range, even where cases appear broadly comparable.
  • R v Toki [2003] NSWCCA 125 was clarified as not establishing any fixed sentencing range for domestic or relationship murders involving no premeditation and a single victim.
  • No error was established in the trial judge's sentencing approach where she had considered the appellant's prior good record, psychological evidence, the question of special circumstances, and a body of comparable sentence decisions.

Legislation and Cases Referenced

Legislation:
- Evidence Act (NSW), s 44 (restrictions on use of prior inconsistent statements in cross-examination)
- Evidence Act (NSW), s 103(1) (substantial probative value test for cross-examination on credibility)

Cases:
- R v Toki [2003] NSWCCA 125