R v Turan

[2000] VSC 176

SUPREME COURT OF VICTORIA
CRIMINAL JURISDICTION	Not Restricted

No. 1413 of 2000

THE QUEEN

v.

FETI TURAN

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JUDGE:	TEAGUE, J.
WHERE HELD:	MELBOURNE
DATE OF RULING:	27 MARCH 2000
DATE OF REASONS:	12 MAY 2000
MEDIUM NEUTRAL CITATION:	[2000] VSC 176

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CATCHWORDS:      Crime – Charge of murder – Provocation – Self-defence – When left to jury – Test – Zecevic v. DPP (Vic.) (1987) 162 CLR 645.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	S. Pullen	Office of Public Prosecutions
For the Accused	D. Drake	Victoria Legal Aid

HIS HONOUR:

1. Feti Turan was charged with the murder of his son Ufuk Turan on 2 June 1999.  At the end of the calling of evidence, Ms Pullen, prosecuting counsel, applied for a direction that the issues of self-defence and provocation not be left to the jury.  Mr Drake, counsel for the accused, opposed that application.  After hearing argument, I ruled that I would not take the issues away from the jury.  I said that I would provide my reasons later.  These are the reasons.

1. There was evidence before the jury from 15 witnesses.  They included the accused, his wife, his daughter, a son who was younger than the deceased, and the doctor who treated the deceased for schizophrenia.  There was also evidence from the pathologist who performed the autopsy, six policemen, an ambulance officer, and two forensic scientists.

1. The deceased was the oldest son of the accused.  The deceased suffered from schizophrenia.  He had so suffered for more than 12 years before 2 June 1999.  He had been admitted twice, in about 1990 and 1992, to a psychiatric hospital for treatment for the schizophrenia.  He was antagonistic to the taking of medication for his condition.  For most of his life, and as at 2 June 1999, the deceased lived with his parents.  He displayed various kinds of irrational behaviour, including extreme restlessness.  At times he had been violent towards his siblings.  There was also evidence of much irrational behaviour towards both parents.  There was evidence of the deceased having used abusive language and at least intimidatory actions, over many years towards his father.  The level of irrational behaviour of the deceased varied from time to time.  There was evidence of a significant worsening of behaviour in the days leading up to 2 June 1999.

1. On 27 May and 1 June 1999, the deceased went to his treating doctor and complained of worsening symptoms.  On 1 June, he obtained a prescription for tablets for his condition.  On 2 June, the accused checked with the doctor as to the medication prescribed for his son.  That evening, the accused described how the deceased came at him outside the family home and said to him: “I’m going to fuck you.”  The accused said that the deceased’s words caused an explosion in his head, that after he thought for a short time about the words, he decided to kill his son and so he got into his car, located the deceased and stabbed him several times

1. I have reviewed both reported cases and recent rulings by judges of this court that are pertinent to my ruling.  Reported cases that I have reviewed include: R v Palmer [1971] AC 814, Muratovic [1967] Qd R 15; Pemble v The Queen (1971) 124 CLR 107; R v Lane (1983) 2 VR 449; Collingburn (1985) 18 A Crim R 294; Lawson & Forsythe [1986] VR 515; Van Den Hoek v The Queen (1986) 161 CLR 158; Zecevic v DPP (1987) 162 CLR 645; Shea (1988) 33 A Crim R 394; R v Kear (1997) 2 VR 555; Thorpe (1998) 102 A Crim R 278. The rulings are those of Vincent J in R v Williams (8 February 2000), Harper J in R v Curzon (28 April 1999) and Coldrey J in R v Bradley (7 December 1994) and R v Roba (22 February 2000).

1. Most of the cases and rulings were concerned with self-defence.  There is the extra dimension in the instant case of “defence of others”, but I have used the words “self-defence” to cover that dimension.  Van den Hoek, Shea and Thorpe were concerned with the issue of provocation.  There are necessarily different aspects of the evidence that must be focused on relative to provocation and self-defence.  The nature of the exercise from the perspective of the trial judge is substantially the same.

1. The value of looking at other cases lies minimally in comparing circumstances.  My ruling must be tailored to the particular facts and circumstances revealed by the evidence before me.  See Palmer 450 and Zecevic 664.  The value of the review lies in being better able to appreciate the application of the relevant legal principle.  In this instance, such a review provides a further insight into the differences that can arise in the judicial dissection of evidence.  In each of Lane, and Kear, there was a strong dissenting view, and in Collingburn a dissenting view, as to what followed from a close scrutiny of the evidence.  Two of the dissentients noted the importance of applying legitimate logical reasoning and not illegitimate speculation.  See Lane 462, Kear 557.

1. What principle do I apply?  Stated economically, it is that I must take the defence away if there is no evidence to support it.  If the evidence can support no finding other that that the case was not one of self-defence, the issue should not be left to the jury.  See Lane 450, Lawson & Forsythe 539.  I propose to adapt, because it picks up the “Zecevic” test, and includes a reminder about onus, standard and proper reasoning, what Ormiston JA said in Kear at 567. Are there sufficient facts from which the jury might infer (or be left in reasonable doubt as to the fact) that the accused believed on reasonable grounds that it was necessary in self-defence to do what he did?

1. As Ms Pullen was ready to point out to me, there were good reasons why that question should be answered in the negative.  One reason was that the deceased had made no immediate attack on the accused.  On the contrary, the evidence was that, after abusing the accused, the deceased had turned away and had gone walking.  Further, the deceased had abused the accused in a similar way on similar occasions before, a consideration which made it harder, if not inappropriate altogether, to characterise what occurred as a realistic threat.  Further, the deceased had no weapon.  Further, the earlier instances of violent conduct on the part of the deceased were of a relatively minor kind.  Further, the accused had ample time to take a non-harmful option such as to go to the police or for medical help.  Further, the actions of the accused after the stabbing appeared to be calmly executed.  Further, the accused had not claimed that he acted in self-defence or the defence of others, save perhaps indirectly in answering a question put in cross-examination.

1. Two matters merit a brief comment here.  One concerns distinguishing between an attack, an imminent attack, a threat of an immediate attack and a threat of attack.  The other concerns the absence of a claim later that what was done earlier was done in self-defence.  Both are, in my assessment, matters which may be significant, but not crucial, as part of the “particular facts and circumstances” of each case.  In Collingburn, Ormiston JA at 301 considered aspects of why the distinction could be important.  In Kear, Ormiston JA at 567 and Phillips JA at 574 noted why the absence of a claim later need not be conclusive.

1. Despite the powerful case capable of being presented by the prosecution, it was my assessment that there were sufficient facts from which the jury might infer that the accused believed on reasonable grounds that it was necessary in self-defence to do what he did.  The pivotal reason for my arriving at that assessment was that, in the circumstances of this case, it would be a mistake to think that the jury had to focus its attention only or primarily on the events on the evening of 2 June 1999.  It seemed to me here, that there was the potential for the deceased’s abusing of the accused to be assessed by a jury in a very different way to that appropriate in most other cases where there is a potential for self-defence.  The jury could have inferred that what the deceased said on that evening was to create an appropriate reasonable belief as required in the mind of the accused because of the long-term context in which what the deceased said could be treated as having been said.

1. That context I have briefly adverted to above.  More detail is to be found in the evidence of the accused and of his daughter Nesrin.  I found her to be a particularly impressive witness.  Some further, but not as impressive, evidence as to those matters was given by Hanzade Turan, Dogan Turan, Filiz Turan and Dr Elias Sleaby.  That evidence of context went to matters such as:

·    the deceased’s mental illness and its consequences

·    the many episodes of abuse of family members

·    the several episodes of violence towards family members

·    the self-protective measures taken, including seclusion and the obtaining of an intervention order

·    the tolerance, and indeed the long-term loving tolerance, stretching forbearance shown by the accused towards the deceased

·    the recent illness of the wife of the accused, and the apparently callous response of the deceased

·    the apparent greater need for her to be protected

·    the deceased obviously having entered into a worsening phase of the schizophrenic cycle. 

1. I was satisfied that the jury might have been prepared to infer, (or at least could have had a reasonable doubt as to the fact), that the accused believed on reasonable grounds that it was necessary in self-defence to do what he did, based on evidence as to those matters of context taken together, even to the extent that that would mean that the weighty limitations arising from a rigorous focus on the events on the evening could be overcome.

1. I turn briefly as to the leaving of the issue of provocation.  During argument as to the withdrawing of self-defence, I expressed no preliminary view either way on the subject being argued.  That was because I did not have such a view.  However, as to the withdrawal of provocation, I did express to Ms Pullen my strong preliminary view that I could not be persuaded to withdraw provocation.  So forewarned, Ms Pullen did not press her arguments.  It is still appropriate that I note my position briefly.

1. As with self-defence, I could accept the presence of good reasons for challenging as weak the claim of provocation.  There had been similar past episodes of periods of difficulty coping with the deceased.  There had been similar past abuse of the accused by the deceased.  Certain actions of the accused after the stabbing could be seen to be relatively calm rather than those of a man who had lost his self-control.  Moreover, the accused denied having been provoked when a question directly on the topic was put to him by police.

1. As with self-defence, then so it is with provocation, that there is a need to focus attention on the evidence not in a balanced, but in a one-sided way.  For like reasons to those expressed above, the jury could well have seen the events of 2 June 1999, as needing to be viewed not narrowly but in the longer-term context.  The jury might well have accepted that there was a long history of tolerant indulgence and that the abuse of 2 June was “the last straw”.  The then recent illness of the wife of the accused could well have been seen to accentuate problems.  The deceased was obviously in a worsening phase of the schizophrenic cycle.  The accused described his reaction to the particular abuse as an explosion of emotion.  It seems to me not to be difficult to link such an explosion to the legal requirement for provocation of a loss of self-control.  Even on the ordinary person test, the consequence of taking a broader context perspective must, in my opinion, lead to the conclusion that there was enough evidence before the jury to warrant the issue being left to them.

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