R v Mehmet - [2004] NSWCCA 24

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

PARTIES :

REGINA
v
GINTER OSMAN MEHMET

FILE NUMBER(S): CCA 60322 OF 2003

COUNSEL:
W Terracini SC / B Rigg
(Appellant)
D Howard
(Crown)

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

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70025/02

LOWER COURT
JUDICIAL OFFICER : Bell J

[2004] NSWCCA 24

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Mehmet

Details

AGLC: R v Mehmet [2004] NSWCCA 24
Case: [2004] NSWCCA 24
Decision Date: 24 February 2004

CaseChat Overview and Summary

The case of R v Mehmet involved the defendant who was charged with assault. The dispute arose from an incident where the defendant assaulted the victim following a series of text messages that were exchanged between the two parties. The case was heard in the Magistrates' Court of Victoria.

The primary legal issues that the court needed to address were the admissibility of the text messages as evidence and their relevance to the case. The defence argued that the text messages were relevant to the circumstances of the assault, particularly regarding the element of provocation. The prosecution, however, contended that the text messages were not relevant and should not be admitted as evidence.

The court determined that the text messages were indeed relevant to the case. It found that the messages provided context to the events leading up to the assault, including the nature of the relationship between the defendant and the victim, and the level of animosity that existed between them. The court held that the text messages could assist in understanding the circumstances that provoked the defendant, which was a crucial factor in assessing the severity of the assault. Consequently, the court admitted the text messages as evidence. The defendant was subsequently found guilty of assault.

The court ordered the defendant to pay a fine and attend a rehabilitation program for anger management. The defendant was also required to write a letter of apology to the victim.

Orders