R v DO, Manh Viet

IN THE COURT OF CRIMINAL APPEAL CA 60754/99

1 GILES JA: On 13 September 1999 the appellant was indicted in the District Court on a charge of manslaughter. He pleaded not guilty. On 17 September 1999 the jury returned with a verdict of guilty. On 5 November 1999 the appellant was sentenced to penal servitude for three years to be served by way of periodic detention commencing on 27 November 1999, with a minimum term of eighteen months and an additional term of eighteen months. 2 The appellant appealed against the conviction and sentence. Only the appeal against conviction has been maintained, and only on the stated ground that it was not on the whole of the evidence open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. 3 The charge in the indictment was that on 9 March 1997 at Marrickville in New South Wales the appellant did feloniously slay Chau Thai Le. Mr Le died when a shotgun held by the appellant discharged into his chest and he was fatally wounded. There is manslaughter where the accused causes the death of a person by criminal negligence, and the Crown case was left to the jury on that basis. 4 The appellant and one Thai Ha Nguyen visited Mr Le on the night of 8 March 1997. Mr Le lived in Marrickville with his parents and sister. In Mr Le's room the three men drank beer, smoked heroin and took Rohypnol. A pump action shotgun was produced, it seems a shotgun owned by Mr Le which the appellant had been shown some days earlier, and for about twenty minutes to half an hour they played with the pump action. Mr Le showed the other two how the shotgun was loaded and how the safety slide or switch operated. At one stage Mr Le pointed the shotgun at Mr Nguyen's head and Mr Nguyen pushed it away. Mr Nguyen and the appellant told Mr Le not to "muck around with it". The appellant then put the shotgun away in a cupboard in the room. 5 In the early hours of the morning of 9 March 1997 the three men went to McDonalds to get something to eat, and later Mr Le and the appellant went out again to get more beer. One or more of them slept for some period or periods. At 4 or 5 o'clock in the morning Mr Le showed Mr Nguyen some cartridges and how to load the shotgun without actually loading it. The cartridges were put into a drawer in the cupboard. The appellant was with them at this time. 6 At about 8 o'clock in the morning there occurred the discharge which caused the death of Mr Le. The evidence came from Mr Nguyen, from police officers who then attended the scene, and from the videos of a walk-through interview and an ERISP interview later conducted by the police with the appellant. 7 Mr Nguyen was asleep. He woke to what he thought was a firecracker. Mr Le fell on him and he saw a wound under Mr Le's left armpit. The police and ambulance were called, and Mr Nguyen and the appellant sought to staunch the flow of blood from the wound and resuscitate Mr Le, but he was dead. Mr Nguyen saw the appellant put the shotgun back in the cupboard. 8 After the police arrived the appellant took the shotgun from the cupboard and handed it to one of the police, saying "here's the gun, man". He was asked what happened, and he said "I was mucking around with it and it went boom" and that Mr Le was hit in the chest. He said of Mr Nguyen, "Don't get him, he did nothing, he was sleeping". 9 At a later time the walk-through interview was conducted and later again the ERISP interview. What I now refer to in the interviews comes from the transcript provided to the jury as an aide memoire, with an addition brought out in oral evidence to fill one of the gaps in the transcript of the walk-through interview, it having gaps through difficulty with transcription. It was not suggested that seeing the videos would materially add to what appeared in the transcripts. 10 The appellant's initial description in the walk-through interview of what happened was -: "V.3 We were mucking around --

V.3 Yeah, go to the cupboard ... get a gun out, like, you know, unloaded --

V.3 And, and you muck around and say, and you ... 'Don't get smart ... ', I said that, and then we got some bullet in here.

V.3 Took ... out, took one out ... took one in, put it in, load up, load it up, and put it on safety --

V.3 ... and then, like, I pretend, I pretend to, like, you know, I, I don't intend to shoot him, and I, I click ... Back to safety, and then I click it, and then, you know, I, and I pout it unsafety again, and ... to scared him again, and then it put on safety again, I click it again, and ... somehow, somehow I accidentally put it on unsafety, and then, boom."

11 Asked to go through it more slowly, the appellant then said - "V.3 Yeah, and he's like, you know, say, like, you know, joking around and things like that.

V.3 And I say, 'Don't get smart, cunt', and I, I pull out --

V.2 A couple of days ago, OK. So you've opened this, this cupboard was previously closed, was it?

V.2 I'll close it now. It's been fingerprinted so --

V.2 -- so that's, that's the position it was in, was it?

V.2 All right. OK. I'll close that drawer. So this is basically how it was?

V.2 You're mucking about and joking with your friend?

V.3 -- and pull this drawer, took out the bullet --

V.3 ... It was unsafety before, but I put it on, on safety.

V.2 -- you say you click it', does that mean you pull the trigger or --

V.2 When you say 'click it', again, what do you mean, like --

V.3 Yeah, and then he's laughing, he, he knows that I won't do it for real, you know --

V.3 -- like, you know, and then, and then, like, he say, 'Oh, go, go shoot me, shoot me', you know, things like that, you know, and later on I pull it, like, you know, unsafety again --

V.2 You took the safety off? V.3 Yeah, safety off.

V.3 -- then ... like, pretend, and then I put it on, put it on safety again, and then click, you know, I pull the trigger --

V.2 And, what, it just went click when you pull the trigger then?

V.3 I pull the trigger, no, no, that's ... it was on safety --

V.2 And then the, the last time that, I didn't realist it was on, on, it was, like --

V.3 It wasn't on safety, yeah. And then I just, I just, like, it wasn't on against his head, I just, like, you know, walk towards him like this, book ...

V.3 'Cause most, most of the time I stick it in his head.

V.2 And that's when you trying clicking that, and what have you, several times you clicked it with the safety on?

V.2 But this time you actually pulled the trigger and it went off?

V.3 Yeah, it went and I didn't know it was on unsafety."

12 Towards the conclusion of the interview the following was recorded - "V.2 OK then. Just, you mentioned before that you, you knew where the gun was --

V.2 -- and did, you obviously knew that it was a shotgun?

V.3 Not really, until, like, you know, he showed me a couple of times and he showed me how to load it, and things like that, so ... --

V.2 Yeah. Have you, you knew that, you mentioned that you put the safety on, and pulled the trigger sometimes?

V.2 Sometimes you took the safety off but you didn't pull the trigger?

V.3 No, yes, yes, he knows that I'm, I'm just, like mucking around with him, you know --

V.3 -- He's laughing ... he said, 'Come on, shoot me, shoot me' ... you know ... and, and, all right, I, I put a safety on, click ... pull the trigger --

V.3 -- you know, a couple of times ... it on, like the last time, I don't know somehow the safety wasn't on, and then I just walk close to him, like this, boom.

V.2 OK. But you, had, have you, since the first time you saw the, the, the rifle, or the shotgun --

V.2 - and that was about, I think you said a couple of weeks ago?

V.3 Yeah, about, a few days ago, about a week ago --

V.3 Couple of days ago, a week ago or something like that ...

V.3 -- have you played with it before like that? Have you --

v.2 Never? That's the first time you've actually put a gun, well, played with it, and put the safety on and off and all that?

V.3 Yeah, yeah ... The only time I played with it is just, like, no bullet, just, like, you know. ... you know, like --

V.3 There were no bullet, and you pump it, and you pump it up and ...

V.2 -- and pull the trigger, but on those, that occasion, there wasn't any bullets in it?

V.2 Yea. I mean, on that occasion you're talking about --

V.3 Well, I'm, I'm not sure if the bullets here ... and I know is the gun is there --

V.3 -- but the last couple of days he show me the bullets.

V.2 All right, then. How many bullets did you actually put in the shotgun?

V.3 One. There's only three. See, there's only two left ...

V.2 So, OK. Just leave them on top of that thing there.

V.2 So when you were first shown those cartridges, the shotgun cartridge --

V.3 -- he, he, he didn't say ... that's all he's got, he just show me what --

V.2 Right. OK. He showed you those and there was three of them?

v.2 And when you went to that drawer this morning, you saw that there were three?

V.2 OK. and then you went through what you said before --

V.2 You ... OK. Until, unfortunately it went off and fatally injured your --

V.3 Yeah." 13 In the ERISP interview the appellant's description of what happened was as follows - "A. Yeah. Well, well, we were drinking and we were talking and mucking around and then, you know, then I was, I was, I, I were, you know, I was joking to him, said, Oh, don't get smart, you know, cunt, you know, I, I'll pull the pump, pump, pump you all right, you know. And, you know, and he said, he said, Go ahead then, yeah --

A. And then I, I said to him, Don't be a smart cunt or I'll pull the pump out, I'll pump you, but that's normally like, you know, that's what, what we do anyway here, sometimes ...

A. And, and then, and he say, he say, Go ahead then. And I took, took the, you know, the pump out and, you know, I, I, I grabbed one bullet, I put it in, I load it up but I put on the safety and I pulled the trigger and he laughed and I say, All right. I said, All right, I'll, I'll put it on, on safety, and then, and then I pretend, you know, and then I put it on, you know, I, the clip back on safety again and it click again, I pull the trigger again and then, you know, and then he laughed again and then I don't, I don't, I don't know how many times I did it, about three, just three time maximum and then the last time that, you know, and then suddenly I, you know, I somehow I, I forgot to put it on safety and he was, you know sitting there reciting a psalm, the other guy was sleeping and then I pulled the trigger and then got him on the side in the ribs." 14 Later in the interview the appellant described how he took the shotgun out of the cupboard and the cartridge, which he called a bullet, out of the drawer, and said this - "A. I, I, I put it in the gun, the pump action, and I loaded it up, but on safety.

Q.95 So you're indicating that you actually pumped it?

Q.96 And that puts it up into the chamber, does it?

A. And then I put it next to his face but not like right close but like, oh, half a metre away and he's a very smart cunt, you know, and I, I blow your head away, you know. And then, then he laughed, you know, Go, go blow my head away. And I, I pulled the trigger and then he laughed and he knows he was, you know, I, I wouldn't shoot him, you know. And then, O yeah, I say, O yeah, really. I put it back to safety and then I, like, you know, try to scare him, you know and he, Pull it, you know, and then I did about two or three times.

A. And then the last time I, I dunno how, I dunno how, I forgot to put the safety on and he goes, like, Well, it wasn't on his face, I, I put it down a bit, somehow my, my finger pull the trigger and shot him right near the ribs, under his armpit." 15 Expert evidence was given in relation to the shotgun. It had a safety slide or switch such that when the safety was fully forward the shotgun would not discharge when the trigger was pulled and when the safety was fully back the shotgun would discharge when the trigger was pulled. The point of change between not discharging and discharging was approximately at the middle of the travel of the slide or switch. A red dot warned that pulling the trigger would discharge the shotgun, and the point of change occurred when about eighty per cent of the red dot was exposed. Further, when the safety slide or switch was at the approximately mid point of its travel from fully forward to fully back but not quite to the point of change, pressure on the trigger could itself cause the safety slide or switch to move slightly, so that the first pressure the first few pressures on the trigger would not bring discharge of the shotgun but a second or later pressure on the trigger would do so. This was not a defect in the operation of the shotgun; it was the way it was designed to operate. 16 According to the expert evidence there was a spring loaded detent ball, that is, a ball bearing held in place under spring tension which engaged in holes in the detent plate and held the safety slide or switch firmly in either the rearward or forward position, and when it was moved to the rear the detent ball failed to engage the hole in the detent plate. This meant that the safety slide or switch was easier to push forward than normal. Although not the subject of evidence at the trial, it was agreed in the appeal that it also meant that a click would not be heard when the safety slide or switch was moved to the rear to the position where the detent ball should have engaged, but a click would be heard when it was moved forward and engaged. 17 It was not in dispute in the conduct of the trial that Mr Le had died and that his death was caused by the act of the appellant. The question was one of criminal negligence. In Nydam v The Queen (1977) VR 430 at 445 it was said that - "In order to establish manslaughter by criminal negligence it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment". 18 The reference to a high risk that death or grievous bodily harm would follow was taken up in the High Court in Wilson v The Queen (1992) 174 CLR 313 at 333. The directions to the jury were in accordance with this test, and no objection was taken at the trial or on appeal to those or any other directions. 19 The appellant did not give evidence at the trial. At the trial the appellant's solicitor referred to the explanations given in the walk-through interview and the ERISP interview, and put to the jury that there was a dreadful game which went wrong but that there was not criminal negligence. He said that, unknown to the appellant, the shotgun had the characteristic that it would discharge when the safety was partly off or only partly on, and that the explanation for what happened was that the appellant thought he had put the shotgun on safety but he had not fully done so, so that this characteristic caused it to discharge when he pulled the trigger. 20 The submissions on appeal took a similar approach. The appellant submitted that there was a miscarriage of justice, not because this was a case in which the evidence could be said to lack credibility in the manner described in the well-known passage in M v The Queen (1994) 181 CLR 487 at 494, but because the verdict was unsafe or unsatisfactory for reasons lying outside the formula requiring that it not be unreasonable or incapable of being supported having regard to the evidence. He referred to M v The Queen at 492-3, and submitted in accordance with what was there said that the question to be asked was whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. 21 The evidence from Mr Nguyen and the police officers was not challenged, and what appeared from the interviews was available to the jury without any qualification by reason of evidence from the appellant. In my opinion it was well open to the jury to be satisfied beyond reasonable doubt that the appellant's act constituted criminal negligence. 22 The appellant was clearly enough aware of the danger of pointing a loaded weapon at someone. He was not particularly familiar with the shotgun but knew of the operation of the safety slide or switch and employed the safety slide or switch. He loaded the shotgun and moved the safety on and off as he tried to scare Mr Le. He squeezed the trigger several times. This was not a case in which a loaded firearm was pointed at someone with the catch on safety, but a case in which there was movement of the safety on and off with the inevitable possibility in the circumstances as described in the evidence that it would not be properly moved to a position in which the shotgun would not discharge. If the appellant did not take proper care to ensure that the shotgun did not discharge the risk to Mr Le was extreme; if the shotgun did discharge Mr Le would almost certainly be killed. The need for care was obvious to a person in the appellant's position, and could hardly have been higher because it would have been plain to any reasonable person in his position that at some point in the operation of the safety slide or switch it would pass from safety to unsafety and that if the safety slide or switch were to be moved on and off in conjunction with pulling the trigger the utmost attention was necessary to ensuring that the safety was properly engaged when the trigger was pulled. That the jury should have concluded with satisfaction to the criminal standard that the appellant had failed to take that care was, in my view, quite unremarkable. 23 In my opinion the appeal should be dismissed. 24 JAMES J: I agree with the judgment of the presiding Judge and the order proposed by his Honour. 25 HULME J: The deliberate pointing of a loaded and cocked shotgun at someone and the pulling of the trigger is as gross an example of criminal negligence as I can imagine. Had the jury not reached the conclusion that they did, I would have regarded their decision as perverse. 26 When those actions are performed by someone who has spent the night participating in alcohol, smoking heroin and eating Rohypnol tablets, all of which activities are calculated not to improve the fine senses, the matter becomes worse. 27 I agree with the orders proposed by the presiding Judge and with his reasons.

28 GILES JA: The order will be that the appeal is dismissed.

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