Death in custody

Yuskel Sancar was in custody in Junee Prison, along with Mustafa Pehlivan. They had become friends during their time together. On the afternoon of May 10, 1994 they were both walking along a prison walkway that connected the Control Centre to Cell Block ‘C’. On the way they passed the doors to the Administration Office, Medical Centre, Education Centre, the Gym, and finally C-Block. They ran into fellow inmates Timothy Orr and Charles Wicks.

There had been some bad blood between Sancar and Orr over their use of heroin inside the prison. Orr had been taunting Sancar, and had also broken the glass window of Sancar’s cell. Orr demanded Sancar give him some of his heroin - Sancar refused, saying he’d already sold it to someone else.

Sancar was carrying half of a pair of scissors, which he had shaped and sharpened into a dagger using the grinder in the Industry Section of the jail. This type of weapon is generally known as a ‘shiv’. Sancar claimed he took the shiv with him when he left his wing that day because he feared he might be at risk from some sort of attack from Orr, who had apparently made threats against his life.

They were outside the Education Centre when a fist fight broke out, Orr taking on Sancar’s friend Pehlivan, and Sancar fighting Wicks. During the skirmish, Sancar pulled out the shiv and stabbed Wicks twice in the chest. The first stuck him near his sternum, penetrating the aorta, and the second hit him on the right side of his chest, penetrating the lung, diaphragm and liver.
Both stab wounds were potentially fatal. The first could not be treated, and the second, if taken alone, would have caused death if not treated.

Wicks staggered along the walkway and collapsed outside the Medical Centre. Despite this convenient location and the swift efforts made to help him, Wicks died within minutes.
Sancar threw the shiv into the Education Centre, and it was found there a short time later by staff.

At trial, Sancar gave the following evidence:
“Q: You knew it was likely to kill him, you stab a man in the chest?
A: I stabbed him in the side.
Q: You stabbed him in the side and then to the front?
A: That’s right.
Q: You knew that it was likely to kill him, didn’t you?
A: No, I did not know it would kill him.
Q: You knew it would cause serious bodily harm to him?
A: Yes, I did.
Q: And you did it nevertheless?
A: That’s right.
Q: And you didn’t really care what injuries the stabbing caused him, did you?
A: No, I never.
Q: Sorry?

A: No, I never.
Q: You thought that this act could cause his death but you were prepared to take the chance?
A: With my life pending, yes.”

Sancar stated that Wicks had thrown the first punch, after which he had to restrain Wicks from grabbing a knife from his own waistband. He said he could see the butt of a knife, so he grabbed hold of Wicks’ to stop him. He said he couldn’t run away because Wicks was in front of him, and that he realised sooner or later, he was going to have to let go of Wicks’ wrist. He pulled out his shiv, then let go of Wicks’ hand. He said Wicks tried to get his knife and did not back off.

When it was suggested to Sancar that there was no need to stab Wicks, he replied “I was going to talk my way out of it, was I?” He insisted that he did not know the stabbing would kill Wicks. He was prepared to risk injuring Wicks in order to save his own life.

Timothy Orr have evidence that he saw Sancar with his head down, doing “rips to the stomach”, or upper-cuts, to Wicks. He said that before Sancar grabbed the shiv from his pants, he was being punched by Wicks and had his head down.

Another prisoner, Henderson, said he saw Wicks strike a couple of glancing blows to Sancar, who then responded with “a couple of hooked sort of punches” in a round-arm style to Wicks’ upper right-hand side. He then noticed Wicks was bleeding on the upper right side. Henderson didn’t see any weapons.

Prisoner Evans gave similar evidence, although he saw something that looked like a knife in Sancar’s hand. Four other inmates said that both Orr and Wicks had knives, and they were going to get Sancar. One said that after the stabbing he saw Orr throw two knives down a drain in the showers. Mark Van Ryswick (now deceased) made a statement at the time that he knew of threats by Orr and Wicks to kill Sancar.

Sancar stood trial on a charge of murder. His first jury was unable to agree on a verdict, and a second trial commenced. Sancar claimed self-defence, forcing the Crown to prove beyond reasonable doubt that he had not acted in self defence and that his reaction was grossly out of proportion to the apparent threat.

There was no denying that Sancar intended to cause Wicks serious harm - he had admitted as much in his evidence. His justification was that Wicks was going to stab him first.

The defence submitted that the evidence was so unsatisfactory, particularly from the fellow prisoners who all had something to gain for themselves by assisting the authorities, that the jury could not be satisfied beyond reasonable doubt that the Crown had proved its case, and therefore must acquit.

Towards the end of the three-week trial, the defence asked the Judge to tell the jury that if they were not satisfied that Sancar had acted in self-defence, then they could convict him of manslaughter instead of murder. The manslaughter would be on the basis of an ‘unlawful and dangerous act’. They relied on the evidence of Orr, that Sancar had his head down when he was delivering his blows, and therefore did not intend serious harm.

Quite bizarrely, the defence was forced to admit that in asking the jury to convict Sancar of manslaughter, they were actually asking the jury to disbelieve their own client’s evidence, given under oath, and instead accept that Sancar did not infact intend any serious harm to Wicks. Quite a stretch.

Further, the Crown had not actually charged Sancar with manslaughter as an alternative to murder. The Judge refused to put the manslaughter option to the jury.

The jury were sent out to consider their verdict. After a short time they returned with a note to the Judge saying they were having difficulty reaching a unanimous verdict. Given that they had only been deliberating for a very short time, the Judge asked them to go back and discuss it further, and see if they could agree. They jury eventually returned a guilty verdict.

Sancar immediately appealed the verdict, stating the Judge was wrong not to leave manslaughter to the jury as an alternative, and his Honour‘s encouragement of the jury to re-think their decision and come back with a unanimous verdict made the result unfair.

Regarding the verdict, the Judge gave what was known as a ‘Black‘ direction, named after an earlier case. It was not an uncommon course of action, in circumstances where the Judge felt that the time the jury had taken was quite short, as well as other factors. The standard direction is phrased in a way that gives no suggestion of which verdict would be preferred, or that they are obliged to negotiate, or “thrash it out” until they reach a unanimous decision. It merely asks them to consider each other’s views and opinions for a little longer and have a look at the evidence once more. The Judge usually points out that most juries are eventually able to reach a decision, and that they are under no particular time constraint.

The Appeal Court felt there was nothing wrong with the Judge’s actions, and rejected this argument.

With respect to manslaughter, the Appeal Court felt the defence situation was “at the least incongruous”. Not only had Sancar given evidence of his intent to seriously harm Wicks (and was prepared to take the risk he would kill Wicks), but if the defence thought there were facts that supported manslaughter, it should have been raised with the Crown well before the trial. The Court felt that the evidence was all one way. There was simply no evidence, including Orr’s, of the stabbing being unintended.

The High Court had made it clear that where self-defence cannot be established, any killing with intent to kill or inflict serious harm will be murder. The only exception is where there is some other factor, such as provocation, that would justify reducing the charge to manslaughter. The Appeal Court found that in this case there was no such factor, and that the defence were really seeking what is often called a “compassionate verdict”.

The Court saw no grounds for such a “half-way house verdict”, and rejected this ground of appeal also. Sancar remains in custody.

Bad Blood

Eanoel Odisho had three daughters: Jaklin, Shokriya and Janet. Jaklin was married to a man named Fouad Eskaria, Shokriya was married to Elia Toma, and Janet to George Hanna. They were all of Assyrian descent, and had lived in Iraq for some time before migrating to Australia. Fouad and George were also related to Mr Odisho by blood, as well as marriage. Elia, however, was not a blood relative, and tended to be treated as a bit of an outsider. George and Janet lived in a top-floor unit in Nelson St, Fairfield, with the rest of the extended family living close by.

On 30 August 1996 a wedding was held, which most of the family attended. After the festivites Elia drove Mr Odisho and some other relatives home. In the car, Elia and his father-in-law Mr Odisho began arguing, and did not stop when they arrived at Mr Odisho's home. Shokriya and their children stayed at her father's house and did not come home with Elia. The next day they went to stay with George and Janet in Nelson St, and did not return home for some time.

Many of the witnesses at trial gave conflicting evidence, and the jury was forced to resolve the inconsistencies as best they could. It appears that on 4 September Elia drove to the Nelson St unit, armed with a knife about 8.5cm long. The Hanna's were at home, along with Shokriya and also Jaklin. Elia blasted his horn, at which his wife and the others came out to the balcony of the unit. Angry words were shouted to and fro, including a threat from Elia to Jaklin that he would "make [her] a widow tonight". Jaklin shouted back that if Elia wanted to fight Faoud, he could be found at a nearby shop. Shokriya agreed to come downstairs, and she and her husband started walking towards the shop. George Hanna decided to drive to the shop to warn Faoud that Elia was on his way.

At the shop there were many Assyrians drinking coffee and playing cards. Elia tried to fight Faoud but both were physically restrained by other people. The shop owner told them to get out, as he didn't want any trouble. Elia agreed to leave and went back to Nelson St with his wife to collect his children, and the Toma's all went home together. Faoud and some other men from the shop went back to the Hanna's unit at Nelson St. Faoud was still enraged at Elia, so he grabbed his club lock out of his car and made his way through the backyards of some adjoining properties until he arrived at Elia's home. Faoud shouted some insults at Elia and challenged him to come out and fight him. Faoud's friends, and Shokriya, tried to talk him out of fighting Elia.

Elia grabbed two steak knives, a rock and a table leg (plus the knife he already had) and met Faoud in the backyard adjacent to his. People again tried to restrain them, but they both broke free. In the course of the fight Faoud hit Elia with the club lock, and Elia threw the rock at Faoud. It missed, and Elia proceeded to use the three knives. Faoud was stabbed twice. One would penetrated his heart, and he died in hospital two days later.

At the trial Elia did not give evidence, but raised self-defence and provocation, and submitted that he did not intend Faoud serious harm, and that it was an accident. These factors would have enabled the jury to return a verdict of manslaughter, or even possibly a not guilty verdict in the case of self-defence or accident. However the murder conviction made it clear they rejected all these factors. The Judge sentenced him to 18 years in prison, with a non-parole period of 13 years and six months.

Elia appealed his conviction on two grounds. First, that the Judge had been incorrect in telling the jury that Faoud's death was not merely an accident, and secondly his Honour had effectively discouraged the jury from finding that there was provocation. The defence at trial claimed that Elia had not intended to kill or seriously harm Faoud, and that the fatal wound had been inflicted by Faoud moving forward onto Elia's knife, or that a third person trying to break up the fight had accidentally caused Faoud to fall onto the knife. However, the Crown case was that Elia had deliberately thrust the knife into Faoud, as opposed to merely holding it near him, say, in a threatening manner. The Judge's direction to the jury was that if they were satisfied Elia intended to seriously harm or kill Faoud, then the result could not be considered accidental. The Appeal Court found no problem with this comment.

In terms of provocation, the Judge made the following comment to the jury: "Most of you have probably lost your temper at some stage, but nowhere near the extent that you were inspired to kill or inflict grievous bodily harm on the person who is the source of your irritation." The Appeal Court thought that this was reasonable to explain the level of provocation required to reduce the charge to manslaughter.

Finally Elia appealed the harshness of his sentence, saying that the Judge was wrong to reject the report of a Counsellor who said he was "full or remorse for his actions". The Judge found no evidence of remorse in any statements Elias made to Police, the Counsellor or any other people, and that the comment was merely the opinion of that Counsellor. His Honour was entitled to form his own opinion on the evidence, and the Appeal Court agreed.

Elia Toma was due for release in March 2009.