WIFE KILLER NOT GUILITY OF MURDER
Following the dismissal of the jury in the murder trial R v Sherna by Justice Elizabeth Hollingworth on Tuesday 2 June 2009 Anthony Sherna was sent for retrial.
In October 2009 he was found not guily of murder.
I’d been in court in March 2005 when the Justice Hollingworth – she doesn’t wear a wig – sentenced 48-eight-year-old Glenroy man Mazin Yasso to 15 years for murdering his wife. Yasso, who’d been denied a provocation defence in his original trial, had tried unsuccessfully to convince the jury he’d been provoked to stab Eman Hermiz 20 times, outside a shopping centre in May 2001.
Defence counsel had argued that Yasso believed his wife was having an affair – there was no affair - and that she had abused him in the moments before he stabbed her. I met Hermiz’ family during the retrial and even visited their home, where I was told how the young woman had feared for her life, taken out an intervention order and rung the police asking for help.
In my book Getting away with murder I described Hollingworth’s words as ‘decidedly more feminist’ than those used by Justice Osborn in R v Ramage (2004) and how she had defended the dead woman’s rights. ‘Eman Hermiz, like any other person in Australian society, had the right to pursue her career and meet friends and relatives and most importantly, to terminate her marital relationship with you, without suffering fatal consequences,’ she told the court.’
If R v Sherna is any indication, the abolition of the provocation law, under which Yasso was tried, will do little to change the way murder trials involving the killing of intimates are conducted. Why else would the Crown Prosecutor Mr Lincoln have needed to address the question of whether Susie Wild was bossy or nagged her husband and why did he say ‘what's been paraded through this court over a period of about two days was an attempt to blacken the character of this lady’? He went on to say:
I have said to you that if you look at the two of them she was a little tiny little woman, five foot at the most, probably bossy, probably nagged him, she had a bad temper and she swore. When you hear the disc she swears. Her, bluntly speaking, members of the jury, and it's a matter entirely for you, I suggest to you, what's been paraded through this court over a period of about two days was an attempt to blacken the character of this lady. As I
say, it's pretty clear what she was. Many men who are married may say my wife nags me occasionally. My wife nags me occasionally. I'm henpecked. She makes demands of me but I love her.
In her address to the jury defence counsel Jane Dixon painted a picture of a man who ‘went over the edge’:
He knew he killed his wife. He knew that. But as to the whereas and the why fores, that's something that he probably didn't know, and something that you, the jury, can use your judgment about. So when you have a look at that you'll see that he talks very clearly in the audio tape (police interview) about the build-up of tension and the build-up to this incident. The pressure building up, built up, built up, and he sighs in that audio taped record of interview. He sighs. He talks about the mobile phone issue and those details that my learned friend conveniently missed mentioning when he referred to the record of interview because he went straight to the video bit, and he talks about what he thought after he'd done it, the, "Oh shit, oh my God, what have I done". And that comes through, not only in the audio, but also in the videotape. He just could not believe what he had done. That's very clear. He said nothing was in his head when he was doing it and he was in shock. It's very clear, in my submission that he never intended to do this act….
He said nothing was in his head when he was doing it and he was in shock. A very startling feature of the evidence in this case is that all the evidence that you've heard from the witnesses has been consonant, consistent, all of the witnesses, even the Crown witnesses, have been singing the same song, and it's a sad, sad song. A song of a man who in reality was more of a mouse than a man, when it came to his wife. A man who ultimately on that night became the mouse that roared. You've all heard that expression. Mr Lincoln kept using the word "lap dog" in his cross-examination, and even in his address. Well, I suppose even a lap dog, if you kick it enough, it will finally bite back. Who was the lap dog in this case, members of the jury? I think you might find that Mr Sherna was lower down in the pecking order than Hubble, the dog… It's very clear, in my submission that he never intended to do this act…
That on any view of the evidence he (psychologist Mr Cummins) was able to give you some very useful insights into how somebody gets into this position, this learnt helplessness, this co-dependency and power imbalance and about why he didn't leave. And he said this. He said, "Yes, when a person perceives themselves to have been traumatised they frequently behave in self-defeating ways, ways which other people would regard as bizarre, self-destructive, counter-productive. In my opinion, that was the situation here. In my opinion, this man ended up reporting some of the symptomatology which is integral to the diagnosis of battered women's syndrome which is quite a well-defined clinical syndrome now …..
To some extent his fears were unreasonable, to some extent they were irrational because he had become so trapped in this relationship that to some extent he had lost touch with reality, with the reality that you all understand and that loss of touch is kind of understandable when you see....
And so the law the Crimes Act has recently developed these new provisions that relate to defensive homicide. It's a new defence available to a charge of homicide. It relates potentially to circumstances of domestic violence or domestic abuse. It relates to circumstances where there is no immediate threat of harm or to circumstances where the use of force is in excess of the threatened harm. It relates to family violence, including physical abuse,
sexual abuse, psychological abuse, intimidation and harassment…I have said to you, and I say it again, that is a fallback position for the defence...
But essentially what the defence says here is that there is plenty of
evidence before you to explain to you, to make you understand how this man got to that point that he did that night, how he got to that point and went over the edge and that it was the cumulative effect on his psyche of all of the abuse and all of the behaviour over years and years within that relationship, added on to his own childhood and family background where he'd suppressed and repressed quite obviously, kept it down, and it all comes pouring out …
And what I suggest to you is that in that one moment there was no intent to kill or cause really serious injury as defined in the Crimes Act and that what the accused man said in his interview when he said there was nothing going into my head, that's entirely believable in the light of this traumatic experience over years and that you should have a reasonable doubt on the basis of that evidence, on the basis of what Mr Cummins has said about this relationship and on the basis of your own human intuition and understanding, and on that basis you should when considering the order of potential verdicts in
this case not be satisfied that the Crown has proven murderous intent, not be satisfied of that third element, not guilty of murder and then go on to consider unlawful and dangerous act manslaughter. And it would only be if you were satisfied of the third element that you would have to go on and consider defensive homicide and those other matters. But what I suggest to you is that the Crown have not proven the elements in this case.
In essence Ms Dixon had to convince the jury that Sherna did not form intent. Had this case been run under the former provocation law defence counsel would have been in a position to argue that despite all the features of murder – voluntary, conscious, deliberate and intent – being present, the killing was done whilst in a state of loss of control accepted as being of the kind an ordinary man might experience in the circumstances. With provocation removed from the statutes, intent had to be disproved or, failing that, Ms Dixon had to convince the jury that Sherna was acting in a state of fear - defensive homicide.
That a jury could not find Sherna guilty only shows how fundamentally anti-woman is our criminal justice system. Ms Dixon had a job to do and that job meant, according to the prosecutor, painting a dark picture of the dead woman. Watching this picture come to life brought back all the bad memories about how my sister was portrayed after she was stabbed to death in 1987. Provocation might be gone but can anyone seriously argue that a woman's rights are protected in our courts?
The Attorney General must now ask the DPP for an assessment of how this can happen. It's no point blaming the jury - although they have much to answer for - as they're not responsible for the courtroom narrative. It's a cultural and legal problem that will only be addressed when we accept the nature and depth of the injustice.