R v Nguyen

2 A jury has not yet been empanelled as several issues have arisen which are necessary for me to rule on, and in respect of two of them I now do so.

3 The first matter concerns the admissibility of evidence proposed to be led from Dr Morris Odell, who is a Forensic Physician from the Victorian Institute of Forensic Medicine. The evidence proposed to be led from Dr Odell concerns expert evidence as to the nature and physiological effect of the drug methamphetamine.

4 The second piece of evidence, which has been the subject of debate, is the admissibility of evidence concerning the Firearms Safety Code.

5 Before turning to the issues, it is necessary to summarise the case sought to be put by the prosecution and the response by the defence. The prosecution case will be that on the night of 18 November 2008 the accused man was at his parents' home at 279 Main Road East, St Albans with his friends Johnny Pham and Tim Nguyen (the deceased). They were in a bungalow at the rear of the premises. The accused had been consuming the drug known as "ice" and had not slept for some period of time.

6 In the early hours of 19 November 2008, Trung Dang arrived at the bungalow bringing takeaway food. At about 4.00am on that morning, whilst the accused was under some level of influence of the drug "ice", he was showing off his recently acquired unregistered shotgun when it discharged inflicting a fatal wound on the deceased in the chest. Much of the rest of the prosecution case will concern what occurred afterwards.

7 On 20 November 2008, the accused was interviewed in a formal record of interview by members of the Homicide Squad. He said that at the time of the incident which resulted in Nguyen's death, there were four of them in the room and that they had been smoking "ice" for several days. He said he produced a shotgun that he had obtained a few days before, and that one of the others present was playing with it and after he retrieved it and went to put it in his bag, the gun discharged.

8 He later said in that interview that he had obtained the gun a week before for protection and the others in the room on this morning saw it and wished to play with it. He said one of the others may have put a cartridge into the firearm. That is one of the central factual issues in this trial.

9 The prosecution case is sought to be put on two bases. First, that the accused is guilty of manslaughter by an unlawful and dangerous act and, second, that the accused is guilty of manslaughter by criminal negligence.

10 An issue has been raised by me as to whether or not manslaughter by unlawful and dangerous act is available to the prosecution in these circumstances however at the time of ruling on this matter I have not yet heard argument and ruled on that issue. For the purpose of this ruling I proceed on the basis that the prosecution case is to be put only as manslaughter by criminal negligence.

11 The evidence to be led from Dr Odell is that he has examined several documents as part of the materials in this trial. They include a summary of the opening and a transcript of the record of interview of Mr Nguyen conducted on 20 November 2008. Dr Odell has never examined Mr Nguyen and he specifically notes that his opinions are based on documents only, and may be changed if further information were to become available to him.

12 Dr Odell then outlines what he can say about the drug "ice" which he says is the street name for the crystallised form of the drug methylamphetamine or methamphetamine.

13 The evidence to be led from him is then for the following effect:

• There is no consistency in the quality, purity or concentration of drugs sold on the street as methamphetamine or "ice";

• "Ice" is a stimulant which acts by increasing the levels and effects of hormones such as adrenalin in the body;

• Such drugs may cause euphoria, restlessness, agitation, rapid and/or confused speech, paranoia, wakefulness and violet and aggressive behaviour;

• The stimulant effects occur shortly after the drug is taken;

• Users of the this drug are subject to the development of a "rebound effect" when the effects of the drug wear off and a person then suffers fatigue and sleepiness as a result of the rapid expenditure of energy that had occurred during the stimulant phase;

• People who use the drug for prolonged period can remain awake for several days;

• If the drug is taken for that length of time, the end result is an unpredictable mix of extreme fatigue, cognitive deficits due to sleep deprivation and residual stimulant effects due to the effects of the drug;

• In this case, it impossible to determine what the effect of four or five days of wakefulness interspersed with doses of "ice" would have been;

• It is possible to be certain that a person's mental state would have little resemblance to what it would be in a drug free, well rested state.

14 Dr Odell then went on to note that the precise understanding of the effects are impossible due to the known variables such as the dose and period of the drug and timing of doses and so forth. He concludes by saying, "it will certainly be expected that the ability to carry out common tasks such as most types of work, driving a car or making responsible decisions regarding financial or other matters would be severely impaired after remaining awake for four or five days under the influence of recurrent doses of stimulant drugs such as "ice"."

15 On behalf of the accused, Mr Toohey of counsel has submitted that this evidence should be excluded. In his submission this evidence would invite speculation as to what the state of the accused may have been at the time the weapon discharged. He complains that Dr Odell's potential evidence generalises about effects and he is in no position to say whether or not the accused in this case suffered from any of those consequences. Thus, it is argued, the jury will be induced to speculate about the state of the accused at the time of the shooting and this evidence would be unfair, notwithstanding warnings which might be given about the evidence. Mr Toohey was not deterred by the prospect that I would direct the jury as to the purpose of this evidence and the limited way that it could be used. He also submitted that the problem was that Dr Odell could not give specific evidence about for example, the particular tolerance the accused has to the drug or whether or not it was in fact the case that the accused was awake for a continuous period of three or four days, as distinct from taking "naps" at various stages. He repeated that the evidence was framed in generalisations, and that it could not be specific about the accused man.

16 Mr Toohey also submitted that a jury did not need the assistance of an expert to inform them about something they would know from common sense: that a person who has taken a drug and has not slept may not be as alert as he would be had the two factors not been present.

17 Mr Beale who appears on behalf of the prosecution says the evidence is admissible because one cannot expect the jury to know how the drug methamphetamine might impact on the accused. In his submission, the evidence is probative of the issue in relation to criminal negligence manslaughter as to whether there was such a departure from the standard of care that would be expected of a reasonable person such as to constitute criminal negligence. Mr Beale submits that the jury would be assisted by having expert evidence as to how this drug may affect an individual.

18 Mr Beale also noted that there are some specific events which are described by the accused in his record of interview, including that he had gone for several days without sleeping and taking the drug and therefore the evidence to be given by Dr Odell was relevant.

19 In Ndyam v R,[1] the Court of Criminal Appeal said at p 445:

"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"

20 Referring to that very passage, Winneke P in R v Richards & Gregory[2] at page 9 said:

"The crime is, thus, one which requires an objective comparison to be made between the conduct of the accused and the conduct to be expected of the reasonable person."

As I noted in R v Pace & Conduit,[3] at paragraph [14]:

"Still more recently, the nature of this offence was considered by the High Court in R v Lavender[4], where the Court dispatched the notion that in New South Wales malice was an essential element of the offence. The Court noted that the common law of manslaughter as expressed in Nydam had been approved in Wilson v R where the Court noted by reference to Nydam that '[f]or manslaughter by criminal negligence, the test is 'a high risk that death or grievous bodily harm would follow'"[5]

21 Thus, the jury will be called upon to consider whether the prosecution has proved that in the circumstances there was such a great falling short of the standard of care as to establish manslaughter by criminal negligence. In this case those circumstances include the consumption by the accused of the drug methamphetamine.

22 In the course of his record of interview, the accused said that they (that is, he and three others including the deceased) were staying up for three or four days smoking "ice". He described smoking the drug out of a bong and repeated that he stayed up for four or five days. He said the drug makes him feel like he wants to stay awake and he described getting the drug from "some junkie off the street".

23 There could be no question that pursuant to s 55(1) of the Evidence Act 2008 the evidence that the accused was consuming methamphetamine is relevant in the sense that if it is accepted, and there appears to be no dispute about it, it could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding being a circumstance of negligence. If the evidence that the accused man consumed methamphetamine prior to handling his firearm and was likely to be affected by it in some way or another, then it seems to be that the manner in which such a drug would affect an individual is also relevant.

24 Whilst a juror may well understand that the handling of a loaded firearm whilst under the influence of any drug is dangerous, it is more likely that a jury will form a correct judgment about the circumstances when assisted by medical evidence such as evidence proposed to be led from Dr Odell about the affects of the stimulant drug methamphetamine. No issue is raised as to whether or not Dr Odell has specialised knowledge, and he clearly has.

25 Whether or not the effects described by Dr Odell in his statement were actually experienced by the accused in this case is a matter for the jury to consider. As I noted to Mr Toohey in the course of argument, the jury will be informed that this evidence is admitted in order that they may have a medical understanding of the effect of methamphetamine on the human body and that the evidence is given for their assistance and in circumstances where it cannot be specific to the accused other than by reference to the history which Dr Odell quotes. Dr Odell can no doubt be cross-examined by Mr Toohey about the limits of his knowledge about the accused and all potential variations that might affect his description of the impact of "ice" on any individual.

26 Whether the accused suffered or experienced any of the effects that Dr Odell describes can occur from taking methamphetamine is also a matter of fact to be determined by the jury and they will be so informed. However, in my opinion, to make a proper judgment on the issue of whether or not the prosecution has proved that the conduct of the accused in this case fell so far short of the standard of care which a reasonable man would have exercised and which involved such a high risk of death or grievous bodily harm, they will be assisted by this evidence so that they may understand the consequences or potential consequences of the consumption of methamphetamine.

27 I propose to admit the evidence. I will caution the jury against speculating in relation to any matters associated with Dr Odell's evidence and inform them about the basis on which the evidence is admitted. I will particularly inform them that because Dr Odell says that certain consequences can flow from the consumption of methamphetamine, it does not automatically mean that they flowed in this case and that the evidence is subject to the variables that Dr Odell himself identified.

28 As part of its case the prosecutor wishes to lead evidence from a Sergeant Peachey which would involve referring to the Firearm Safety Code. A Firearm Safety Code is a code of conduct which is the subject of instruction for those involved in firearm safety training and the obtaining of a shooter's licence.

29 The Firearm Safety Rules which are relevant in this case include the following:

1. Treat every firearm as being loaded.
2. Always point firearms in a safe direction.
3. Never have loaded firearms in the car, home or camp.
4. ...
5. ...
6. Store ammunition and firearms separately.
7. No alcohol or drugs when handling firearms.
8. ...

30 Mr Toohey on behalf of the accused, objects to this evidence. Mr Beale on behalf of the prosecution, submits that the information from this Code

"...puts flesh on the bones of what will be the prosecution's submission that this is the standard of care that would be exercised by a reasonable man, which is an objective standard, it is not something the prosecution has just invented this has been in existence for some time"

31 As I understand that submission, therefore, this evidence is aimed at making clear that in relation to firearms the standard of care which a reasonable man would have exercised would have been consistent with these rules.

32 Mr Toohey complained that the rules and regulations on which the Crown rely are for a specific purpose and are not applicable to the accused because he was not an applicant for a shooter's licence and there is evidence that he ever read the regulations. That submission seems to me to miss the point that the test is an objective test and the jury are required to consider what the standard of care that a reasonable man would have exercised was.

33 Mr Toohey's argument in response to that observation was that common sense and experience of life by members of the jury would be such that they would not need to have rules and regulations put before them which are constructed for the purpose of helping people get shooter's licences.

34 By way of response, Mr Beale referred me to R v Osip[6], where the Court of Appeal[7] were concerned with a case of manslaughter by gross or criminal negligence in which the accused was hunting and shot at what he believed to be a deer but what was in fact a man walking his dog. The man was killed and the Crown case was a case of negligent manslaughter including that the accused had been instructed on the importance of identifying the target when shooting.

35 During the course of the evidence, the Firearms Safety Code was put before the jury which contained similar rules to that which is proposed to be led in this case. The concentration there was of course on safety rules in relation to hunting.

36 The best that Mr Beale could say about that case is that no point was taken in the Court of Appeal in relation to the admissibility of that evidence.

37 Mr Toohey submitted that the accused in this case was in quite a different position from the accused in Osip, given that the accused here had not undergone any course and was not instructed by anybody in the safety rules in relation to firearms. However, again, I think that latter submission rather misses the point. These rules are capable of establishing a standard of care which a reasonable person would have exercised in relation to the possession and handling of a firearm. Again, the jury will be instructed that any breach of these rules is not reflective of the guilt of the accused but the evidence is put before them so that they may take it into account in determining what the standard of care of a reasonable person would have been for the purpose of determining whether or not the accused is guilty of manslaughter by criminal negligence. These are referred to as rules, but of course they are principles of conduct rather than laws, the breach of which would involve criminal sanction. I am not able to see any prejudice that flows from this evidence other than the fact that it may tend to demonstrate the contrast between the standard of care and the actions of the accused in the circumstances.

38 I therefore propose to admit the evidence. However, it does not seem to me that it is necessary for the document in all its detail to be before the jury as an exhibit. The police officer concerned would be in a position to give evidence that a Firearms Safety Code exists and that in that Code there are a series of rules or principles, the relevant ones being Rules 1, 2, 3, 6 and 7 and some evidence given about the details of each of them. It is in my opinion unnecessary for the jury to otherwise have the document in its complete form.

39 Although s 137 of Evidence Act 2008 was not specifically referred to, to the extent that Mr Toohey's submissions contended or inferred that there was a danger of unfair prejudice to the accused from both pieces of evidence which are the subject of this ruling, I do not share that view. In my opinion there is no danger of unfair prejudice in either case.

[1] [1977] VicRp 50; [1977] VR 430.

[2] (1998) 2 VR 1.

[3] [2008] VSC 308.

[4] [2005] HCA 37; (2005) 222 CLR 67.

[6] [2000] VSCA 237; (2000) 2 VR 595.

[7] Per Phillips CJ, Tadgell and Batt JJA.