Director of Public Prosecutions v Arslanian

[2022] VSC 736

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0116

DIRECTOR OF PUBLIC PROSECUTIONS	Prosecution
v
HAIG JACOB ARSLANIAN	Accused

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JUDGE:	Incerti J
WHERE HELD:	Geelong
DATE OF HEARING:	20-21, 24-28, 31 October, 2-4, 7-8, 10-11 November 2022
DATE OF JUDGMENT:	1 December 2022
CASE MAY BE CITED AS:	DPP v Arslanian
MEDIUM NEUTRAL CITATION:	[2022] VSC 736

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CRIMINAL LAW – Trial by judge alone – Manslaughter – Self-defence – Shooting in context of family violence – Whether accused believed it was necessary to do what he did to defend himself – Whether accused’s response was a reasonable response in the circumstances as he perceived them – Crimes Act 1958 (Vic) ss 322K, 322M – Criminal Procedure Act 2009 (Vic) Pt 9.2 – Jury Directions Act 2015 (Vic) Pt 6.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J Dickie	Office of Public Prosecutions
For the Accused	Mr J Gullaci SC with Ms S Gillahan	Adrian Paull Criminal Lawyers

TABLE OF CONTENTS

Introduction and summary of conclusions................................................................................... 1

Legal principles.................................................................................................................................. 3

Judge alone trial principles.......................................................................................................... 3

Manslaughter................................................................................................................................. 5

Evidence............................................................................................................................................... 6

Background and subsequent events............................................................................................. 10

Haig Arslanian............................................................................................................................ 10

David Arslanian.......................................................................................................................... 15

Events preceding 5 October 2020.............................................................................................. 29

The evening of 4 October 2020.................................................................................................. 31

The morning and afternoon of 5 October 2020....................................................................... 32

The shooting................................................................................................................................ 34

Haig’s conduct after the shooting............................................................................................. 36

The shotgun................................................................................................................................. 38

Autopsy........................................................................................................................................ 38

Mrs Arslanian’s accounts of the shooting................................................................................... 40

Mrs Arslanian’s evidence at trial.............................................................................................. 41

Mrs Arslanian’s previous accounts.......................................................................................... 44

Haig’s accounts of the shooting.................................................................................................... 57

Record of interview..................................................................................................................... 57

Haig’s accounts to others........................................................................................................... 69

Dr Pandurangi’s evidence.............................................................................................................. 73

Self-defence....................................................................................................................................... 77

Submissions...................................................................................................................................... 77

Prosecution................................................................................................................................... 77

Defence......................................................................................................................................... 84

Belief in necessity............................................................................................................................ 88

David’s escalating aggression................................................................................................... 90

Evidence of how the shooting occurred.................................................................................. 91

Haig’s mental health................................................................................................................. 101

Conclusion on belief in necessity............................................................................................ 102

Reasonable response..................................................................................................................... 107

Conclusion....................................................................................................................................... 110

Verdict.............................................................................................................................................. 110

HER HONOUR:

Introduction and summary of conclusions

1. Haig Jacob Arslanian is charged with manslaughter in relation to the death of his brother, Dikran (David) Arslanian, on 5 October 2020 in Whittington. Haig Arslanian was arraigned on 20 October 2020 and pleaded not guilty.

1. I will refer to the accused and the deceased by their first names. The deceased was known to his family as David.

1. Haig was originally charged with murder in relation to his brother’s death, and stood trial before a jury of 12 between June and July 2022. He was acquitted of murder on 18 July 2022; however, the jury was unable to reach a verdict on the alternative charge of manslaughter by unlawful and dangerous act.

1. Following the jury verdict, the prosecution filed a new indictment on 26 September 2022 for the charge of manslaughter by unlawful and dangerous act.

1. On 19 September 2022, the defence filed an application for trial by judge alone.[1] An order was made on 27 September 2022 that the charge of manslaughter be heard and determined by judge alone.[2]

   [1]Criminal Procedure Act 2009 (Vic) s 420E(2)(b) (‘Criminal Procedure Act’). 

   [2]Order of Hollingworth J, 27 September 2022.

1. David died as a result of two gunshot wounds to his torso. It is not disputed that: Haig shot his brother and therefore did the act that caused David’s death; the act was conscious, voluntary and deliberate; the act was dangerous; and, unless Haig was acting in self-defence, his shooting of David constituted an unlawful assault.

1. Therefore, if the prosecution can prove that Haig was not acting in self-defence, it will have established each element of the offence of manslaughter. There are two ways that the prosecution can prove that Haig was not acting in self-defence:

(a)        to prove, beyond reasonable doubt, that Haig did not believe it was necessary to do what he did to defend himself; or

(b)       to prove, beyond reasonable doubt, that Haig’s response was not a reasonable response in the circumstances as Haig perceived them.

1. My conclusions and analysis are made having regard to the totality of the evidence, including: the history of family violence; Haig’s significant mental health problems; and David’s serious assault on Haig in September 2020.

1. I will first address whether the prosecution has proven beyond reasonable doubt that Haig did not believe it was necessary to do what he did to defend himself.

1. I have found that on 5 October 2020, Haig and David had an altercation culminating in David smashing or ramming Haig’s head into a mirror in the kitchen family room area. Almost immediately after having his head smashed into the mirror, Haig retrieved from his bedroom a loaded shotgun that he had previously taken from his father’s gun safe. Haig went and got the shotgun because he feared David would really seriously injure him or kill him. Haig got the gun to protect himself and scare David but did not intend to use it. It was when David was coming towards, or lunging at Haig, that Haig shot him twice in rapid succession.

1. On the totality of the evidence and the facts as I have found them, I am satisfied that the prosecution has not excluded the reasonable possibility that Haig believed firing the shots at David was necessary to defend himself from really serious injury or death.

1. As such, the prosecution has not proven beyond reasonable doubt that Haig did not believe that firing the shots at David was necessary in self-defence.

1. I will now address whether the prosecution has proven beyond reasonable doubt that Haig’s response was not a reasonable response in the circumstances as Haig perceived them.

1. Based on the totality of the evidence, in particular, the physical disparity between David and Haig, the history of family violence, the threat David posed as he was lunging towards Haig and Haig’s perception that there was no possibility of escape at the time he fired the shots, I am not satisfied the prosecution has excluded the reasonable possibility that Haig’s conduct in firing the shotgun was a reasonable response to what he perceived was an immediate threat of death or really serious injury at David’s hands.

1. As such, the prosecution has not proved beyond reasonable doubt that Haig’s response was not a reasonable response in the circumstances as he perceived them.

1. Accordingly, I find that Haig is not guilty of manslaughter.

1. I direct that an entry of not guilty be made on the record in respect of the charge of manslaughter in the indictment numbered L12366684A.

Legal principles

Judge alone trial principles

1. This trial was heard by judge alone in accordance with the temporary arrangements for trial by judge alone in Ch 9 of the Criminal Procedure Act 2009 (Vic). I may make any decision which could have been made by a jury and my decision has the same effect as a jury verdict.[3]

   [3]Criminal Procedure Act s 420F.

1. Section 4A of the Jury Directions Act 2015 (Vic) (‘Jury Directions Act’) applies to this case.[4] This means that my reasoning with respect to any matter to which Parts 4, 5, 6 or 7 of the Jury Directions Act applies must be consistent with how a jury would be directed according to the Jury Directions Act. Similarly, I must not accept, rely on, or adopt a statement, suggestion or direction that Parts 4, 5, 6 or 7 of the Jury Directions Act prohibit a trial judge from making or giving a jury.[5]

   [4]Ibid s 420ZF.

   [5]Ibid s 420ZF; Jury Directions Act 2015 (Vic) s 4A (‘Jury Directions Act’). See Makeham v Sheppard [2020] VSCA 242 for the operation of s 4A of the Jury Directions Act in the context of the Magistrates’ Court of Victoria.

1. Part 3 of the Jury Directions Act, concerning requests for directions, does not apply to judge alone trials. Nevertheless counsel addressed me at the conclusion of evidence on the directions and principles to which I should have particular regard.

1. The onus of proof is on the prosecution and the accused comes to this Court with the presumption of innocence in his favour. The accused is regarded as innocent unless and until the prosecution has proved his guilt beyond reasonable doubt. In order to do so, the prosecution must prove each of the elements of the relevant offence beyond reasonable doubt.[6] The prosecution does not need to prove every fact that it alleges to this standard; however, facts must be clearly proved before they can be treated as established.[7]

   [6]Jury Directions Act ss 61–62.

   [7]R v Dickson [1983] 1 VR 227, 235 (Starke ACJ, Crockett and McGarvie JJ); R v Van Beelen (1973) 4 SASR 353, 374–80 (Bray CJ, Mitchell and Zelling JJ).

1. In this case there was a combination of direct and circumstantial evidence. Where a case rests substantially on circumstantial evidence a verdict of guilty cannot be returned unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the accused’s guilt. I therefore cannot be satisfied of the accused’s guilt unless his guilt is the only reasonable inference that the circumstances of the case would enable me to draw.[8] For an inference to be reasonable, it must rest upon something more than mere conjecture. All of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence cannot be considered in a piecemeal fashion.[9]

   [8]R v Baden-Clay (2016) 258 CLR 308, 323 [46]–[47] (French CJ, Kiefel, Bell, Keane and Gordon JJ).

   [9]Ibid 323 [47] (French CJ, Kiefel, Bell, Keane and Gordon JJ).

1. I must consider all the evidence and decide the facts of the case. I must then apply the law to the facts I have found in order to determine whether the accused is guilty or not guilty of the offence charged.

1. In order to decide what the facts are in this case, I must assess the credibility and reliability of the witnesses who gave evidence. It is for me to decide whether a witness’ evidence is to be believed and the weight which should be attached to any particular evidence.

1. No adverse inference may be drawn from the fact that the accused chose not to give evidence at trial.[10]

   [10]Jury Directions Act s 41.

1. The expert evidence in this case is in part disputed by the prosecution. As a starting point, if expert evidence is undisputed, I must have a very good reason not to accept any undisputed expert evidence. A very good reason includes: the facts underlying the opinion not being present; the process of reasoning leading to the opinion being unsound; or a factor that casts doubt on the validity of the opinion.[11]

   [11]Taylor v R (1978) 22 ALR 599; R v Matusevich & Thompson [1976] VR 470; R v Matheson [1958] 1 WLR 474; R v Hilder (1997) 97 A Crim R 70; R v Klamo (2008) 18 VR 644.

Manslaughter

1. To return a guilty verdict, the prosecution must prove each of the four elements of manslaughter by unlawful and dangerous act beyond reasonable doubt. The four elements are:

(a)        the accused committed an act that caused the death of another person;

(b)       the relevant act was committed consciously, voluntarily, and deliberately;

(c)        the relevant act was unlawful; and

(d)       the relevant act was dangerous.

1. Elements (a), (b) and (d) were conceded by the defence and on the evidence before me I am satisfied that they have been proved beyond reasonable doubt. In relation to (c), the prosecution alleges that Haig’s shooting of his brother was unlawful because it constituted the offence of assault. That offence requires the prosecution to prove beyond reasonable doubt that:

(a)        the accused applied force to the body of the victim;

(b)       the application of force was intentional; and

(c)        the application of force was without lawful justification or excuse.

1. Elements (a) and (b) were conceded by the defence. However, the defence argues that Haig’s conduct was legally justified because he acted in self-defence.

1. The key issue for determination is whether Haig acted in self-defence such that he had a lawful excuse for the purposes of element (c) of the offence of manslaughter.

1. Sub-section 322K(2) of the Crimes Act 1958 (Vic) (‘Crimes Act’) provides that a person carries out conduct in self-defence if:

(a)        the person believes that the conduct is necessary in self-defence; and

(b)       the conduct is a reasonable response in the circumstances as the person perceives them.

1. The prosecution did not dispute, and I accept, that the defence has discharged the evidential onus of raising self-defence. The prosecution therefore has the legal onus of proving beyond reasonable doubt that Haig did not act in self-defence.[12]

   [12]Crimes Act 1958 (Vic) s 322I (‘Crimes Act’).

1. There are two ways that the prosecution can prove that Haig was not acting in self-defence:

(a)        to prove, beyond reasonable doubt, that Haig did not believe it was necessary to do what he did to defend himself; or

(b)       to prove, beyond reasonable doubt, that Haig’s response was not a reasonable response in the circumstances, as Haig perceived them.

1. Evidence of family violence was adduced at trial. Such evidence may be relevant to determining whether a person carried out conduct while believing it to be necessary in self-defence or the conduct is a reasonable response in the circumstances as the person perceived them.[13]

   [13]Ibid s 322M(2).

Evidence

1. I must decide the case only on the evidence led in this trial. The evidence of the following witnesses was adduced by the prosecution in pre-recorded audio-visual form, having been recorded at Haig’s first trial for murder:

(a)        John Arslanian (‘Mr Arslanian’), Haig’s father who gave background evidence in relation to Haig, David, and the Arslanian family;[14]

[14]Exhibit P27 (Mr Arslanian).

(b)       Armen Arslanian (‘Armen’), Haig’s older brother who also gave background evidence in relation to Haig, David and the Arslanian family;[15]

[15]Exhibit P25 (Armen).

(c)        Kevork (Kevin) Arslanian (‘Kevin’), Haig’s younger brother, who gave background evidence in relation to Haig, David and the Arslanian family and who attended Ms Manson’s house after David’s shooting;[16]

[16]Exhibit P26 (Kevin).

(d)       Helen Beregszaszki, Sevan (Sue) Arslanian’s (‘Mrs Arslanian’) cousin with whom David stayed in the weeks before the shooting;[17]

[17]Exhibit P17 (Mrs Arslanian).

(e)        Rachelle Manson, Haig’s close friend who stayed with him on the evening of 4 October 2020, and at whose house Haig was arrested;[18]

[18]Exhibit P36 (Ms Manson).

(f)        Kelly Diver, Haig’s ex-girlfriend who was in communication with him before and after the shooting;[19]

[19]Exhibit P34 (Ms Diver).

(g)       Mandy Felder, the Arslanians’ neighbour, who heard arguing and two bangs on the evening of 5 October 2020 (‘5 October’);[20]

[20]Exhibit P28 (Ms Felder).

(h)       Sanela Zorlak, the Arslanians’ neighbour, who heard two bangs on the evening of 5 October;[21]

[21]Exhibit P31 (Ms Zorlak).

(i)         Daniel Allwright, a passer-by, who heard two bangs on the evening of 5 October, and shortly afterwards saw Haig walking out of the house;[22]

[22]Exhibit P29 (Mr Allwright).

(j)         Ryan McGarigle, a friend of the Arslanians, who attended Ms Manson’s house;[23]

[23]Exhibit P32 (Mr McGarigle).

(k)       Sergeant Nathan Jones (‘Sgt Jones’), the first police officer on the scene of David’s shooting;[24]

(l)         Senior Sergeant Stephen Farrar (‘Snr Sgt Farrar’), a ballistics expert who gave evidence in relation to the shotgun used to shoot David;[25] and

(m)      Dr Joanna Glengarry, a forensic pathologist who conducted the autopsy on David’s body.[26]

[24]Exhibit P33 (Sgt Jones).

[25]Exhibit P35 (Sen Sgt Farrar).

[26]Exhibit P37 (Dr Glengarry).

1. The defence adduced in pre-recorded audio-visual form the evidence of forensic psychiatrist Dr Prashant Pandurangi,[27] from Haig’s first trial for murder. Dr Pandurangi conducted an assessment of Haig based upon the brief of evidence, medical records from Barwon Health and Justice Health, conversations with Haig’s treating psychiatrist at the St Paul’s Unit at Port Phillip Prison and an interview of Haig on 23 July 2021.

   [27]Exhibit D1 (Dr Pandurangi). Dr Pandurangi is a consultant psychiatrist employed by the Victorian Institute of Forensic Mental Health. He is a qualified medical practitioner with a diploma in psychological medicine, a fellow of the Royal College of Psychiatrists in the United Kingdom and a member of the forensic faculty of the Royal Australian and New Zealand College of Psychiatrists.

1. The following witnesses gave viva voce evidence for the prosecution:

(a)        Sevan (Sue) Arslanian (‘Mrs Arslanian’), Haig’s mother who was present at the Arslanian’s home in Whittington at the time of the shooting;

(b)       Senior Constable Andrea Dell (‘SC Dell’), a police officer who attended the scene on 5 October and took a statement from Mrs Arslanian;

(c)        Selena Zorlak who, in addition to her pre-recorded evidence, gave evidence in person in relation to David and Haig’s personalities and conversations with Mrs Arslanian after the shooting; and

(d)       Detective Senior Constable David Meneilly (‘DSC Meneilly’), the informant.

1. The evidence adduced at trial also included:

(a)        copies of text messages exchanged between Haig and various persons,[28] a record of calls to and from Haig’s mobile phone,[29] and call records from Mrs Arslanian’s phone;[30]

[28]Exhibit P1 (Text messages between Haig and Armen); Exhibit P6 (Haig’s text message records); Exhibit P10 (Haig’s text message records).

[29]Exhibit P11 (Haig’s phone records).

[30]Exhibit P40 (Mrs Arslanian’s phone records).

(b)       a floorplan of the Arslanian family home in Whittington[31] and a copy of the floorplan marked by Mrs Arslanian during her evidence;[32]

[31]Exhibit P3 (Floorplan of the Arslanian home).

[32]Exhibit P14 (Floorplan, marked up by Mrs Arslanian).

(c)        videos taken by police at the scene of David’s shooting;[33] 

[33]Exhibit P5 (Crime scene videos); Exhibit P42 (Crime scene video).

(d) photographs taken by police at the scene of David’s shooting,[34] and of Haig after he was arrested;[35]

[34]Exhibit P2 (Photographs); Exhibit P4 (Photographs); Exhibit P22 (Photographs); Exhibit P39 (Photographs).

[35]Exhibit P9 (Photographs of Haig at the Geelong Police Station).

(e)        an audio-visual recording of Haig’s record of interview (‘ROI’) with police;[36]

[36]Exhibit P8 (ROI).

(f)        CT images of David taken after his death;[37]

[37]Exhibit P7 (CT images).

(g)       a recording of the triple 0 call made by Mrs Arslanian;[38]

[38]Exhibit P12 (Triple 0 recording).

(h)       Sergeant White’s body worn camera footage;[39]

[39]Exhibit P15 (Sgt White’s BWC footage).

(i)         Mrs Arslanian’s previous statements;[40]

[40]Exhibit P16 (Mrs Arslanian’s first statement); Exhibit P17 (Mrs Arslanian’s second statement); Exhibit P18 (Mrs Arslanian’s third statement); Exhibit P19 (Mrs Arslanian’s handwritten notes); Exhibit P20 (Mrs Arslanian’s first statement with handwritten amendments); Exhibit P21 (Mrs Arslanian’s second statement with handwritten amendments).

(j)         SC Dell’s handwritten notes dated 5 October 2020;[41]

[41]Exhibit P23 (SC Dell’s handwritten notes).

(k)       SC Dell’s body worn camera (‘BWC’) footage;[42]

(l)         two Google maps;[43] and

(m)      a letter from Dr Luke Khongmen dated 10 October 2022.[44]

[42]Exhibit P24 (SC Dell’s BWC footage).

[43]Exhibit 38 (Google maps).

[44]Exhibit P41 (Letter from Dr Khongmen).

1. On 24 October 2022, a view was conducted of the Arslanian home. A summary of my observations during the view was read into transcript.[45]

   [45]T592.27–T595.13.

1. Subject to my discussion in relation to Mrs Arslanian’s evidence, I consider each of the witnesses to have been generally credible and reliable witnesses. While some witnesses had trouble remembering the precise details of particular background events, they were generally honest and forthright about any difficulties in recollection.

1. Having considered all of the evidence, I have set out below the background to the shooting as well as the subsequent events, much of which is uncontested. I have then set out at some length Mrs Arslanian’s evidence and her prior statements in relation to the shooting, the account given by Haig and Dr Pandurangi’s evidence. I have then briefly summarised the competing submissions before turning to consider whether the prosecution has proved beyond reasonable doubt that Haig was not acting in self-defence when he shot David.

Background and subsequent events

Haig Arslanian

1. Haig is the second eldest son of Mr and Mrs Arslanian. At the time of David’s death Haig was 39 years old and David was 31 years old. Haig and David lived with their parents at the family home in Whittington. Their other siblings, Armen (then aged 41) and Kevin (then aged 33), no longer lived at home.

1. At the time of the shooting Haig weighed approximately 62 kilograms,[46] and his height was recorded as 174 centimetres.[47]

   [46]T589.19.

   [47]Ibid 20–21.

1. The Arslanian family moved to the Geelong area when Haig was approximately 11 years old. Mr and Mrs Arslanian operated a fish and chip shop and after school Armen would help run the shop while Haig looked after the younger boys. Haig did everything for his younger brothers, David and Kevin, from changing their nappies, cooking for them, taking them to the park and making them dinner.[48] Haig was described as the father and mother figure for David and Kevin as they grew up.[49] David was approximately two years old and Kevin four years old when Haig commenced looking after them.[50]

   [48]Exhibit P25 (Armen), T77.13, T130.1–8.

   [49]Ibid T77.13; Exhibit P26 (Kevin), T108.10–20, T110.18–22; Exhibit P36 (Ms Manson) T439.4–13.

   [50]Exhibit P27 (Mr Arslanian), T185–186.

1. Haig went to the Newcomb Secondary College and got about halfway through his final year before he found an apprenticeship as a panel beater in Sydney. Haig eventually returned to the family home and tried to finish his apprenticeship but never completed it. Haig then worked in the fruit markets in Melbourne for approximately three to five years.

1. After the death of a good friend in or about December 2007 Haig started to withdraw socially. He began working at a tree lopping business in Geelong but after a couple of years he stopped working entirely. In her 2 November 2020 statement, Mrs Arslanian recounted that:

Haig had become quite anxious. He’d get really nervous and start sweating when he had to be around people. He’d get physical symptoms like sweaty palms, diarrhea [sic], vomiting and it would really trouble him. It got to the stage when he didn’t even want to leave the front door.

But saying that, when it was just him around the house — Haig was a very keen gardener, and he’d vacuum the house for me. He was socially withdrawn and started to have real issues leaving the house, but at home he was generally okay. Haig was always fantastic with my grandchildren. He had so much love and care for the kids. He’d take them bike riding, or out to McDonalds to get food for them, but they’d have to come home to eat it because he couldn’t face sitting in the restaurant.

Haig started to stutter and often had trouble expressing himself, and then he’d get angry if he couldn’t find the words or express himself clearly. He’d become easily frustrated if he was unable to speak his mind.[51]

[51]Exhibit P18 (Mrs Arslanian’s third statement), [21]–[23].

1. Haig was very dependent on his mother.[52] Mrs Arslanian said that Haig had huge difficulties leaving the house,[53] although he could sometimes leave the house generally if somebody was with him.

   [52]Exhibit P34 (Ms Diver), T520.19-22.

   [53]T270.25–27.

1. Around two years after Haig stopped working Mrs Arslanian convinced him to see a doctor to get some help for his anxiety. Mrs Arslanian explained in her 2 November 2020 statement that:

For the last few years, we’ve been in the same pattern with Haig. He’d be anxious and wouldn’t leave the house and would get upset or angry trying to express himself. He would swear and had a filthy mouth, but was never violent towards any of us. Prior to any doctor’s appointment I’d have to speak with the doctor and let him know what was happening because Haig couldn’t get the words out. In the beginning, it was an appointment every two weeks. I would go in and wait in the waiting room until Haig’s turn was called, because Haig couldn’t bear to be in the waiting room with the other people. We’d have the appointment and he’d be okay for a while, but then about three days before the next appointment Haig would get really nervous and upset again. He would get so affected by his anxiety that he’d get diarrhea, and he became really sensitive to smells which would make him nauseous or even vomit.

Haig’s mental health has been suffering for about the last four or five years. He would regularly see doctors and counsellors, but he was very withdrawn and didn’t often leave the house. Haig had been prescribed different medication for his anxiety, but I can’t remember the name of the drug he was taking. Sometime  the medication would help, but he still went through phases of everything being okay, and then he’d be unwell again.[54]

[54]Exhibit P18 (Mrs Arslanian’s third statement), [25]–[26].

1. From February 2014 Haig regularly saw a general practitioner at Newcomb Central Medical Centre, Dr Luke Khongmen. In a letter dated 10 October 2022, Dr Khongmen records that Haig’s medical issues included severe anxiety disorder, agoraphobia, and panic disorder.[55] Haig only attended the appointments accompanied by Mrs Arslanian, with Dr Khongmen recording that:

Haig would always attend the clinic in a high state of anxiety - his mother would sit outside my room and when it was his turn she would bring him from the car parked at the back of the clinic, usher him through the rear door and bring him inside the room. He never sat in the reception area. After exchanging greetings he would sit with constant fidgeting, rubbing and blowing into his hands and he always had pressured speech. He always came dressed in a jacket or hoodie with his head covered.[56]

[55]Exhibit P41 (Letter from Dr Khongmen).

[56]Ibid [5].

1. Dr Khongmen’s letter contained the following in relation to Haig expressing aggression:

[O]ften trivial things would cause Haig great stress and anxiety and on occasions he would be verbally aggressive and abusive. However, he would apologise profusely soon after he had been aggressive. He was also paranoid and often misconstrued people’s actions and motives. Hence, the encouragement to avoid being ‘too reactive and hot headed’.[57]

[57]Ibid [6].

1. As outlined below Dr Pandurangi opined that Haig suffers from a generalised anxiety disorder, a social anxiety disorder,[58] and a moderate personality disorder with negative affectivity and problems trusting others.[59]

   [58]Exhibit D1 T372.5–7 (Dr Pandurangi), T372.5–7.

   [59]Ibid T368.6–11.16.

1. Family members and friends who gave evidence expressed that they were aware that Haig had mental health issues, particularly anxiety.[60] For example, Mr Arslanian described his son as ‘a sick person’.[61] Mr Arslanian was aware that Haig had mental health difficulties and that his wife would take him to some appointments but was not aware of the details of those appointments.[62] Mr Arslanian never talked to Haig about his mental health problems as his wife looked after him and took care of his needs.[63]

   [60]Exhibit P25 (Armen), T77.7; Exhibit P34 (Ms Diver), T502.28–31T503.4–15, T520.10–14.

   [61]Exhibit P27 (Mr Arslanian), T136.20.

   [62]Ibid T205.27–31.

   [63]Ibid T206.1–9.

1. Witnesses expressed that they had never known Haig to be violent,[64] or aggressive.[65] He was variously described as ‘gentle’,[66] a very quiet person,[67] ‘caring’, ‘very sensitive’ and as a ‘good friend’.[68] The evidence reveals that Haig was someone who placed an emphasis on respect, particularly for elders.[69] Mr Arslanian recounted that family has always been very important to Haig and he took care of all family members, ‘one hundred percent he respected me and my wife’.[70] It was also important to Haig that his brothers respected Mr and Mrs Arslanian.[71]

   [64]Exhibit P25 (Armen), T94.20; Exhibit P34 (Ms Diver), T520.29–31.

   [65]Exhibit P27 (Mr Arslanian), T197.29–31, 198–T198.1 (Mr Arslanian).

   [66]Exhibit P34 (Ms Diver), T520.29–31; Exhibit P31 (Ms Zorlak), T427.30–31.

   [67]T197.29–31; 198–T198.1.

   [68]Exhibit P31 (Ms Zorlak), T427.27–29, 30–31.

   [69]See, eg, Exhibit P26 (Kevin), T108.10–20.  

   [70]Exhibit P27 (Mr Arslanian), T197.15–23.

   [71]Ibid 26–27.

1. Ms Manson, one of Haig’s oldest friends, gave detailed evidence about Haig’s personality and their relationship. Ms Manson described their friendship as ‘basically… like brother and sister and pretty much have been for over 20 years now’.[72] Over the six to seven years before October 2020, Ms Manson had been seeing Haig at least two or three times a week.[73]

   [72]Exhibit P36 (Ms Manson), T433.4–6.

   [73]Ibid T433.28–T434.5.

1. Ms Manson was aware that Haig had longstanding mental health issues and that there were periods where Haig would not leave the house much.[74] When asked to describe how she observed Haig’s stress or anxiety, Ms Manson said that Haig’s anxiety was utterly debilitating to the extent that she would check in on him daily.[75] Ms Manson observed that Haig’s mental health had deteriorated ‘over the last six, seven years’.[76]

   [74]Ibid T434.29–T435.4.

   [75]Exhibit P36 (Ms Manson), T435.6–T436.6.

   [76]Ibid T435.6–T436.6.

1. In August 2020, Haig re-established contact with his ex-girlfriend Ms Diver via phone. They spoke via text message and telephone calls every day, discussing ‘day to day things’.[77] There were discussions between Haig and Ms Diver about meeting in person at the end of the week commencing 5 October, in Shepparton.[78] Haig proposed to visit for just one day because of his anxiety.[79] Haig and Ms Diver were hoping to rekindle their relationship.[80]

   [77]Exhibit P34 (Ms Diver), T502.6–30.

   [78]Ibid T505.24–30.

   [79]Ibid T506.7–10.

   [80]Ibid T514.13–16.

1. Witnesses gave evidence about Haig being effectively house bound. For example, Ms Manson’s evidence was that Haig had agoraphobia and that he was unable to leave his home, preferring to stay in his bedroom.[81] The day before the shooting, Ms Manson offered for Haig to stay at her home, given his distress about David returning home. However, Haig was ‘adamant in that he just didn’t want to leave home’,[82] and Ms Manson noted Haig’s difficulties leaving the home ‘in the last few years’.[83]

   [81]Exhibit P36 (Ms Manson), T441.20–23.

   [82]Ibid T455.23–24.

   [83]Ibid T478.28–30.

1. Ms Diver’s evidence was that the impact of Haig’s anxiety was that ‘he didn’t leave the house’.[84] Ms Zorlak gave evidence that Haig ‘couldn’t even leave the house’.[85] Mr Arslanian’s evidence was that ‘[w]hen a visitor comes to my house, he doesn’t like to see some people, he usually goes to his room’.[86]

   [84]Exhibit P34 (Ms Diver), T503.15.

   [85]Exhibit P31 (Ms Zorlak), T421.21–22.

   [86]Exhibit P27 (Mr Arslanian), T190.4–5.

David Arslanian

1. David was a butcher and, from about 2016 until a few months before his death, he worked in his brother Armen’s butcher shop.[87]

   [87]Exhibit P25 (Armen), T69.2.

1. At the time of his death David weighed 172 kg and was 191 cm tall.[88] David was variously described by witnesses as a ‘gentle giant’,[89] ‘funny’ and ’cheeky’[90] and ‘a beautiful loving soul’.[91] Mr Arslanian said that Haig’s personality was very different to David’s personality and that David was very loud.[92]

   [88]Exhibit P37 (Dr Glengarry), T530.1–4.

   [89]Exhibit P36 (Ms Manson), T439.19–T308.16.

   [90]T424.13–14; T439.15–18.

   [91]Exhibit P36 (Ms Manson), T439.19.

   [92]T198.9–11.

1. There was evidence that, over the years preceding his death, David’s behaviour changed and that he became aggressive and violent. There was also evidence that throughout his life David had used his size to intimidate others,[93] that he would stand over people, would grab them and squeeze them,[94] put people in ‘bear hugs’ and that he could get pretty loud.[95] For example, when asked whether David could be intimidating, Armen said ‘Ah 100 per cent he was’.[96] While Kevin gave evidence that ‘Dave was the type at one point yes it’s ok, next minute it would be a little switch and it just turned’.[97]

   [93]Exhibit P25 (Armen), T89.25.

   [94]Ibid T89.26.

   [95]Ibid T90.3.

   [96]Ibid T90.7.

   [97]Exhibit P26 (Kevin), 122.24–27.

1. Witnesses gave evidence that they noticed particular changes in David’s behaviour preceding his death.[98] For example:

   [98]Exhibit P25 (Armen), T70.12–14; T72.12–16.

(a) Armen gave evidence that David was becoming ‘too aggressive’ and ‘too violent’ and ‘you couldn’t speak to him’. He stated that David was getting angry towards others,[99] and that his butcher shop had lost wholesale customers as David had been getting angry and demanding payment in cash;[100]

[99]Ibid T88.26.

[100]Ibid T89.2–9.

(b)       Mr Arslanian said that over time he and David had arguments, usually about David’s behaviour in the home, and that there were arguments between Haig and David, as well;

(c)        Ms Zorlak stated that in the weeks prior to his death, David seemed ‘agitated’ and ‘stressed out’ and didn’t want to talk about what he was going through;’[101] and

[101]Exhibit P31 (Ms Zorlak), T424.9–12. T428.17–28.

(d)       Ms Manson stated that she ‘witnessed David’s behaviour and demeanour change’.[102] She said that David:

had changed and he just had zero respect and zero understanding of mental health, mental illness. … and I guess that’s where that put a strain on Haig and David’s relationship. Because Haig is very much a man of respect. David not so much, him being the baby of the family. … they would butt heads a bit especially both boys living at home under Mum and Dad’s roof you know.[103]

[102]Exhibit P36 (Ms Manson), T443.3–4.

[103]Ibid T439.19–28.

1. While it is unnecessary to make specific findings, there were suggestions from witnesses that David may have developed a gambling problem and that he was suspected of stealing money from Armen’s butcher shop and from members of his family, including Haig.

1. Evidence was given in relation to three main incidents of David using violence against members of his family: an assault on Mr Arslanian, an assault on Armen and an assault on Haig in or around September 2020 (‘the September incident’).

Assault on Mr Arslanian

1. Mr Arslanian gave evidence in relation to an incident which he said occurred at the family home a few years before David’s death.[104] Mr Arslanian was in his room when he heard an argument between Haig and David. Mr Arslanian got up to see what was going on in the kitchen, and recalls that he said to David ‘Don’t you answer your brother, your older brother, he’s looking after you. Don’t back answer him and don’t you raise your hands on your brother [sic]’.[105] Mr Arslanian then slapped David in the face. Mr Arslanian said he slapped David because he had never had respect.[106] David looked at him and said ‘don’t do that again’ and pushed Mr Arslanian. Mr Arslanian fell over on the corner of the arch to the family room and hit his head. Mr Arslanian said he had a lump on his head and that he still has the lump.[107] Mr Arslanian told David to get out and David just walked outside, had a few cigarettes and went to bed.[108]

   [104]Exhibit P27 (Mr Arslanian), T133.11–14.

   [105]Ibid T132.1–7.

   [106]Exhibit P27 (Mr Arslanian), T199.4–7.

   [107]Ibid T200.4–5.

   [108]Ibid T131.7–22.

1. Haig saw what happened and was really upset. Mr Arslanian said that Haig did not say anything to David but later Haig said to his father, ‘Dad, I think he’s going to, ah, destroy your life.’[109]

   [109]Ibid T148.9–13.

1. Mr Arslanian agreed it was a serious assault on him.[110] He was asked why he did not go to the police in relation to that incident and he said that he would never hurt his son[111] and would never want the police to be involved in his family.[112]

   [110]Ibid T200.8.

   [111]Ibid T200.10–13.

   [112]Ibid T200.14–16.

1. Mr Arslanian also referred to this incident after giving evidence that sometimes he was scared to talk to David:

Question:       Why is that?

Answer:Because when he did once, punch me once, he pushed me, he didn’t punch me but he pushed me, right. And I - I feel like one push of him to Haig would have killed him.

Question:That’s because of the physical size difference between Haig and David?

Answer:Yes. That’s right.[113]

[113]Ibid T198.12–19.

1. In relation to this incident, Mrs Arslanian recalled that she might have come out of her bedroom and saw that Mr Arslanian was separating David and Haig. As he was separating them, David pushed Mr Arslanian into the wall. Mrs Arslanian could not recall when this incident occurred, but she suggested it might have been months before the September incident.[114]

   [114]T296.17–18.

1. Later Mrs Arslanian said that when David and Haig were arguing in the little hallway near the kitchen and the toilet, Haig was on the ground, David was on top of Haig and Mr Arslanian intervened trying to help.[115] Mrs Arslanian was confused about the timing of this event and clarified that she could have been remembering the incident before David was kicked out of the house.

   [115]T298.15–21.

1. Given the deficiencies in Mrs Arslanian’s evidence discussed below I prefer Mr Arslanian’s account of this event, including its timing. Nonetheless, Mrs Arslanian’s evidence supports a conclusion that such an event occurred.

1. Armen gave evidence that he had been told by Mr Arslanian that David had assaulted him. [116]

   [116]Exhibit P25 (Armen), T92.1.

Assault on Armen

1. The second major incident occurred in the months before David’s death and involved an assault by David on Armen at Armen’s butcher shop. Armen gave evidence that quite a substantial amount of money and product had gone missing from the shop and that he suspected David was responsible. One morning just after the shop had opened around 8am David and Armen were arguing about David stealing money from the shop. Armen recounted that David said ‘Why don’t you put your knives down and we’ll sort it out now. We’ll have a fight.’[117] Armen responded ‘I’m not fighting with me own brother in the shop.’[118] David ‘just kept going and screaming’ and Armen told him to get out of the shop. Armen’s evidence was that David would not get out and:

all of a sudden I’m just turned around and keep working and he’s just come out from behind and wrestled me. Grabbed me in a bear hug and pushed me up against the bench where I cracked a couple of ribs. But ah, he wouldn’t leave, so I walked out. Packed me stuff up and took off.[119]

[117]Ibid T72.31–73.4.

[118]Ibid T73.5.

[119]Ibid T73.12–17.

1. In cross-examination Armen described how David charged at him ‘from behind and he grabbed me — tried to grab me in a headlock in the arm so I couldn’t get me arms ... and just straight into the corner of the workbench and just yeah. And once he grabbed you, you can’t get out, that’s it. That’s – it’s – yeah.’[120]

   [120]Ibid T90.22–23.

1. After the incident David gave four weeks’ notice before ceasing to work at the butcher shop. In that time Armen did not go to the shop,[121] and he had no contact with David after the incident.[122] Armen did not contact the police about the assault, but he did contact the police about the theft.[123] Armen did not tell Haig about the money going missing until after David had left the butcher shop.[124]

   [121]Ibid T74.12.

   [122]Ibid T76.15.

   [123]Ibid T74.31–T75.1.

   [124]Ibid T78.12.

1. Mrs Arslanian also gave evidence about this incident. She was working at the butcher shop on the day. Mrs Arslanian was serving customers and could hear David arguing with Armen but did not know what it was over. She heard David’s loud voice more than Armen’s and she was ‘petrified again because [David] has never done that to Armen never.’[125] David said to Armen ‘I’ll give you four weeks’ notice’ and after that they had a fight and Armen said ‘well, I’m leaving now’. Mrs Arslanian heard them from the kitchen and when she walked in after serving customers she saw David grab Armen and thought David pushed Armen into the bench and hurt Armen in the inner thigh.[126]

   [125]T310.20–23.

   [126]T311.1–3.

1. Mrs Arslanian was asked ‘when you saw what happened what did David do after he’d done that?’ Mrs Arslanian said ‘Armen was trying to get away from him, trying to get out. I – and the customer walked out. I walked over and I said, enough is enough I’m leaving. Armen said, no I’m leaving and that’s what happened. That’s all I can remember.’[127] Mrs Arslanian said that David had Armen in a bear hug ‘like he always does’.[128] She said that Armen was sore and after that he did not go back to the shop until David left.

   [127]Ibid 5–9.

   [128]Ibid 12–13.

1. In their submissions, the prosecution and defence agreed that there was no evidence that Haig was aware of the assault on Armen and therefore this incident can only be relevant to David’s tendency to act violently towards members of his immediate family and not to Haig’s state of mind on 5 October.

The September incident

1. Armen gave evidence that a couple of weeks before David died, Armen dropped Haig off at home.[129] David was out the front having a cigarette. Armen heard Haig saying to David ‘[t]hat’s your eldest brother, have some respect.’ He did not witness or hear anything else before he drove away. Armen agreed that he did not want to go into the house when dropping off Haig because he was concerned that David might hurt him[130] and because he did not want to impact the police investigation into the theft.[131]

   [129]Exhibit P25 (Armen), T79.22.

   [130]Ibid T92.31.

   [131]Ibid T100.1.

1. It appears that an argument broke out as Haig entered the house. Mr Arslanian, who was home at the time said that he heard an argument, got up from his room and that he saw David ‘right on top of Haig, and he was just choking him.’[132] He saw Haig’s face and:

it was absolutely red. And, ah, I jumped on David to get him out, I couldn’t because he was too heavy for me. And I called my wife, Sevan
come help me. I can’t take David out of Haig. He’s nearly choking him, so eventually we got him out, and I said, David, get out, I don’t want you in the house.[133]

[132]Exhibit P27 (Mr Arslanian), T133.26–27.

[133]Ibid T133.27–T134.2.

1. Mr Arslanian said that David said to Haig, ‘Come on punch me, come on hit me,’ and that David then put Haig ‘straight away on the ground … he put him straight on the ground, and he jumped on him. Lied on him.’[134] He said that Haig did not raise a hand or push David or anything of that sort.[135] Haig came towards David but did not do anything and Haig was then just on the ground and David right on top of him.[136]

   [134]Ibid T195.15–25.

   [135]Ibid T195.28–29.

   [136]Ibid T196.1–5.

1. Mr Arslanian was asked if he could recall what David and Haig were arguing about just prior to the incident. Mr Arslanian said that Haig told David, ‘You’re a druggo, and you’re stealing money.’[137] He was asked:

Question:And how was he saying that to David? Can you describe how he was saying it? Was it in a quiet or a loud voice? How was Haig speaking when he said that?

Answer:Haig, he never put his voice up. He just talk – like talk to him. He never argue with him that way. But he just told him what it does to him, ‘you’re on druggo, right, and you’re stealing my money’.

Question:Right, and what was David saying in response to that, that you can remember? What did David say? What was David saying in response?

Answer:Well, David he just – like ah, I think he just pushed him or something like that. Right, and then that’s when the argument start when they went inside the house.[138]

[137]Ibid T169.5–6.

[138]Ibid T169.8–20.

1. Mr Arslanian was asked:

Question:And you were concerned Haig was going to be really seriously hurt?

Answer:Yeah, he was absolutely red. His face was absolutely red. He couldn’t - - -

Question:Was it going blue?

Answer:Yeah, he couldn’t breathe. That’s why I tried to take his hands, I couldn’t.

Question:How did you get him off?

Answer:I called my wife and then I start - I don’t know how ah, how it happened. Straight away we took David out and I said to David straight away, pushed him out of the door. I said, ‘Get out. I don’t want you in my house.’[139]

[139]Ibid T201.23–T202.1.

1. Mr Arslanian agreed that he noticed that Haig was shaking and that he appeared to be really scared. He said that, while he did not notice marks around Haig’s throat, ‘his face was absolutely red’.[140]

   [140]Ibid T205.5–12.

1. Haig did not speak to Mr Arslanian about getting the police involved[141] and it did not occur to Mr Arslanian to call the police.[142] He agreed that in his family calling the police is not something that you would do because you try and sort it out within the family.[143]

   [141]Ibid T202.12.

   [142]Ibid T202.10–11.

   [143]Ibid T202.13–15.

1. Mrs Arslanian said that her husband called out to her and said in Armenian help me. She quickly ran into the kitchen and she thought they must have had an argument.

Haig was on the floor and David was on top of him, trying to choke him. John was between them and pushing them and trying to get rid of them. As soon as John got rid of them, you know, like apart, in Armenian, he told them to leave the house.[144]

She saw that David was on top of Haig holding his neck. David had both of his hands around Haig’s neck and Haig was on the ground.[145]

[144]T260.31–T261.7.

[145]T266.31, T267.1–2.

1. After they were separated her husband yelled at them and told them both to get out of the house.[146] Haig went into his room. David went into his room, got his bag and walked out the front. When he was out the front of the house leaving he said, ‘I’m not on drugs’.[147]

   [146]T267.9–10.

   [147]Ibid 12–26.

1. Mrs Arslanian did not have any conversations with Haig about what happened that night.[148] Maybe four or five days after the incident Haig said he had a headache and he could not swallow.[149] The morning after the incident Haig told her that his throat was sore.[150] After the incident Haig would just come out of his room and then go back. She said Haig was ‘very, very upset and very, very sore’.[151]

   [148]T268.3.

   [149]Ibid 13–15.

   [150]Ibid 20–21.

   [151]Ibid 31.

1. After the incident Haig rang Armen and told him what happened.[152] Armen’s evidence was that Haig told him ‘He’s hit me’ and ‘It seems like he is going to kill me, come back and give me a hand’.[153] Armen said that Haig told him he feared that David was going to kill him and said ‘Oh, what do I do? … He’s – he’s going to hurt me, he’s going to… he’ll kill me’.[154] Armen said that when Haig was telling him this, he sounded stressed and ‘his anxieties were through the roof’.[155] In re-examination, Armen said Haig had never expressed those views to him prior to that night or after that night.[156]

   [152]Exhibit P25 (Armen), T80.16.

   [153]Ibid T81.1–3.

   [154]Ibid T93.14–16.

   [155]Ibid T93.28–30.

   [156]Ibid T99.9–11.

1. Ms Manson said that she had been trying to contact Haig for a couple of days but he would not answer his phone and that when he rang her back she could barely hear him and she could not really understand him because he had lost his voice.[157] Haig told her that ‘he’d been in a fight with David, and he got choked out by David and that’s why he couldn’t talk. He was struggling to talk on the phone’.[158] She believes this conversation occurred two or three weeks before 5 October.[159]

   [157]Exhibit P36 (Ms Manson), T443.11–16.

   [158]Ibid T443.16–18.

   [159]Ibid T443.21–23.

1. Haig told Ms Manson that ‘David struck him from behind and then they were on the ground wrestling and … David was on top of Haig, choking him out and Haig said, “I was trying to call out to Bub”, which is John … he was – couldn’t breathe and then that’s when Haig said he felt something pop in his ear’.[160]

   [160]Ibid T443.29–T444.3.

1. Ms Felder, who lived next door to the Arslanian family, gave evidence that one week prior to David’s death she heard Haig yelling out to ‘Dave’, ‘don’t come here. I’m going to call the police.’[161] Ms Felder then went outside to her car and saw David walking down the street. She asked him if he was all right and needed a lift.[162] Haig was at the front door. He just slammed the front door after he said he would call the police, and David yelled out ‘do that.’[163] Ms Felder heard the door slamming and the exchange between Haig and David.[164] Ms Felder said that during the argument they sounded angry. Ms Felder heard Mrs Arslanian in the backyard with Haig trying to calm the situation down.[165]

   [161]Exhibit P28 (Ms Felder), 211.8–9.

   [162]Ibid T211.18–21.

   [163]Ibid T212.6–8.

   [164]Ibid T212.13.

   [165]Ibid T213.24–30.

1. As discussed below, David was in Bacchus Marsh and Echuca from Sunday 20 September until 5 October and therefore the September incident recounted by Ms Felder could not have occurred one week prior to David’s death. I consider Ms Felder was mistaken about when the events took place and that what she heard was the September incident discussed above.

1. In her evidence Forensic Pathologist Dr Glengarry was asked questions in relation to strangulation. She agreed that during an incident of strangulation the airways can be blocked off and that can lead to loss of consciousness and loss of blood flow to the brain.[166] She stated that loss of consciousness can occur very rapidly, within 10 seconds and accepted that non-fatal strangulation can cause brain damage and mild brain injury.[167] Dr Glengarry stated that injury from strangulation can be very subtle or absent and agreed that some of the injuries might include redness to the neck area and bleeding or ringing in the ears. She agreed that strangulation can result in a raspy or hoarse voice if there has been damage to the voice box and that, although she was not certain, that would last for perhaps days to a week.

   [166]Exhibit P37 (Dr Glengarry), T554.13–28.

   [167]Ibid T554.2–9.

1. Dr Glengarry was also asked whether there were common features of the victims in strangulation homicides to which she responded:

Yes, so we often see it in the settings of domestic violence. Um, male or female violence. ... you have to think about the practicalities of it. In order to strangle someone, there needs to be a size difference. So if you try to [strangle] someone who’s a similar build to you... in cases I see of fatal... strangulations, that’s less common. You often do need a size difference hence why males have a size and strength advantage over females generally. But if there are two males for example, there is often a size difference of a larger male against a smaller male. I’ve certainly had cases of that.[168]

[168]Ibid T556.1–13.

Other evidence of David’s violence and aggression

1. There was also other evidence of David arguing with, intimidating and acting violently, particularly towards Haig. For example:

(a)        Armen said that David always intimidated Haig.[169] He said that David always stood over him ‘cos Haig – Haig – back then, Haig was only 70 kilos, like there was nothing of him, 70, 75 kilos at the most and you know when David is 160, 170 that’s a big difference’;[170]

[169]Exhibit P25 (Armen), T91.13–15.

[170]Ibid T91.14–18.

(b)       Kevin recalled a particular incident which took place around the family dinner table when David asked his mother for new work boots and Haig said to David ‘[Mrs Arslanian] just finished work, you just finished work, can we have something to eat first’.[171] Kevin said that there were then swear words exchanged and ‘David cracked it, grabbed his plate and threw it towards Haig and Haig got up of[f] the table, went to the bathroom and then I got out of there but there was no punch on, there was nothing like that, there – just verbally’.[172] The way Kevin says David threw the plate was that he ‘skimmed it across the dining table, like threw it towards Haig’.[173] Kevin said that Haig retreated from the dining table to the bathroom to avoid conflict.[174] Kevin said that Haig was not the type of person to fight back during arguments;[175]

[171]Exhibit P26 (Kevin), T113.18–28.

[172]Ibid T113.29–T114.2.

[173]Ibid T121.21–24.

[174]Ibid T121.27–29.

[175]Ibid T122.1–2.

(c)        Kevin said that he heard directly from Haig about physical altercations with David, who ‘grabbed [Haig] a couple of times and like – and when he grabs you, he grabs you like – and he was a big boy’.[176] Kevin recalled an incident approximately five years ago in which David grabbed Haig in the hallway of the family home in a bear hug.[177] This bear hug was described by Kevin as ‘a nasty grab, like [David would] break your bones, that’s how hard he grabs ya’.[178] Kevin stated that on this occasion his oldest daughter Bella had an argument with David in which Haig tried to intervene,[179] and in response, David grabbed Haig. At the time this bear hug occurred, Kevin removed his children from the house, ‘because the kids didn’t need to see it’;[180]

[176]Ibid T115.1–3.

[177]Ibid T122.13–16.

[178]Ibid T125.18–20.

[179]Ibid T125.6–17.

[180]Ibid T122.20–23.

(d)       Kevin said that David used his size to intimidate Haig ‘a couple of times’.[181] Kevin also described the way David ‘buffed up his chest’ to ‘mark his territory’.[182] Kevin stated that because of David’s size, Haig ‘couldn’t fight back’ when they argued and ‘if mum and dad was there, Haig wouldn’t open his mouth’;[183]

[181]Ibid T123.3–7.

[182]Ibid T126.9–10, T126.24–25.

[183]Ibid T126.22–24.

(e)        Mrs Arslanian said that twice in the 12 months before his death David lost his temper while having dinner with his family and threw plates and kitchen knives;[184]

[184]T434.30–T435.5.

(f)        Mr Arslanian was asked in evidence-in-chief how many times he had seen David raise his hands towards Haig. He said he had seen it a few times.[185] He then said ‘four, five times, yes. I’ve seen that’.[186] He said that David would say to Haig things like, ‘come on punch me’.[187] Haig never punched back. He said that ‘David was big and Haig was too scared of him but sometimes David just used [to] raise his hands on him. So many times I saw that’.[188] Mr Arslanian said he could not say exactly when these incidents happened but recounted that he had also seen David grab a chair and throw it at Haig;[189]

[185]Exhibit P27 (Mr Arslanian), T187.16–17.

[186]Ibid T187.25–27.

[187]Ibid T188.11.

[188]Ibid T187.18–24.

[189]Ibid T190.30–T191.3.

(g)       Mrs Arslanian described a number of arguments and fights that occurred within the home including, the incidents between David and Armen, David and Mr Arslanian and David and Haig.[190] Mrs Arslanian said there were a few other incidents, but they were mainly between Haig and David.[191] Mrs Arslanian said there had been a few incidents where David was on top of Haig. Mrs Arslanian referred to this as occurring a few times or most times.[192] Mrs Arslanian was asked:

[190]T293.24–28.

[191]Ibid 29–30.

[192]T297.20–21.

Question:       Are you trying to help Haig by saying that?

Answer:        No. No, I’m not trying to help Haig.

Question:Were you trying to help Haig in your evidence earlier before your Honour?

Answer:        What do you mean? What have I said wrong?

Question:Well when you gave evidence before this Court previously?

Answer:        Yeah.

Question:What did you say about how many times you’d seen David on top of Haig?

Answer:Every argument that my – those – my two sons had; Haig was weak, David was strong. Haig – uh, David would always get him, um, Haig on the ground. Always. David was always on top of my son, Haig.[193]

Mrs Arslanian said that she could remember three or four incidents of this type over the last two years.[194] Mr Arslanian had separated David and Haig on maybe three occasions.[195] Mrs Arslanian is the only witness who gave an account of having seen David on top of Haig on multiple separate occasions. On balance given the vagueness of her accounts and the conflating of events, I find Mrs Arslanian’s evidence of having seen David on Haig on multiple separate occasions unreliable; and

(h)       Ms Manson said that David would taunt Haig about his anxiety, his nervousness, his stutter and his difficulties communicating.[196] She described David as ‘very much a smartass, just a sarcastic little shit basically’ and that sometimes he used to overstep and take it a little too far.[197] She said that most of the time Haig would just put his head down and walk away, ‘[j]ust submissive’.[198] However, Ms Manson said she had never seen David act violently towards Haig.

[193]Ibid 22–T298.1.

[194]T298.4–7.

[195]Ibid 9.

[196]Exhibit P36 (Ms Manson), T440.12–18.

[197]Ibid T440.18–21.

[198]Ibid T440.25–26.

Events preceding 5 October 2020

1. Mrs Arslanian’s first cousin, Mrs Beregszaszki gave evidence that David stayed with her in Bacchus Marsh from Sunday 20 September 2020 until 5 October.[199]

   [199]Exhibit P30 (Mrs Beregszaszki), T413.23–30.

1. During the time at Bacchus Marsh, David was gardening, cooking and helping out around the home.[200] Mrs Beregszaszki said that during that period David seemed ‘[h]appy go lucky’ and ‘very calm’.[201] While David was staying with Mrs Beregszaszki, Mrs Arslanian came to Bacchus Marsh every couple of days to see David.[202]

   [200]Ibid T414.2–4.

   [201]Ibid T414.5–6.

   [202]Ibid T415.31–T416.4.

1. Mrs Beregszaszki agreed that during that time David was concerned with the fight he had with Haig and proving that he was not using drugs.[203] Mrs Beregszaszki and David went to the chemist together and she suggested that he get a test to prove he was not on drugs.[204] She saw David do the test and receive a negative result.[205] This occurred around five days after David arrived in Bacchus Marsh.[206]

   [203]Ibid T414.8–11.

   [204]Ibid T414.13–28.

   [205]Ibid T414.29–30.

   [206]Ibid T415.4–11.

1. In the four days leading up to Sunday 4 October 2020, David, Mrs Beregszaszki, Mrs Beregszaszki’s husband and Mrs Arslanian went to Echuca and stayed at a cabin owned by Mrs Beregszaszki.[207] During that time David was ‘happy-go-lucky’ and ‘calm’, cooking the barbeques and sitting around talking.[208]

   [207]Ibid T415.12–21.

   [208]Ibid T415.22–27.

1. In this period between the September incident and 5 October, Haig remained at the Arslanian family home. Ms Manson saw Haig several times in this period and stayed overnight a couple of nights.[209] The letter from Dr Khongmen refers to a visit from Haig on 23 September 2020 but makes no reference to Haig referring to David’s assault on him.

   [209]Exhibit P36 (Ms Manson), T449.12–17.

1. Ms Manson gave evidence that Haig was on edge and wired for the two weeks before 5 October.[210] She ’could see that he was scared’.[211] Ms Manson elaborated that Haig was ’scared for himself, scared for everyone around him ... and I guess scared for when David was potentially going to be returning home’ because of the serious physical fight they had had.[212]

   [210]Exhibit P36 (Ms Manson), T437.10–16.

   [211]Ibid T437.19–20.

   [212]Ibid T437.18–25.

1. When asked what Haig expressed in terms of any fears that he had at that time, Ms Manson stated:

[L]eading up to that moment, ... he was aware in himself that he could potentially cause harm and that’s what he was afraid of... he knew that David would be coming home and he was just scared that [if] they’d got into another fight that he would hurt him this time and not the other way around. So he was scared, scared in the sense of he didn’t want to hurt anyone. He didn’t want to hurt himself. That’s the best way that I can put it. There was no – there was no intention of wanting to cause harm ever. He was just so scared, confused.[213]

[213]Ibid T438.12–26.

1. David, Mrs Beregszaszki, Mrs Beregszaszki’s husband and Mrs Arslanian arrived back in Bacchus Marsh from Echuca in the late afternoon of Sunday 4 October 2020.[214] There was discussion about David and Mrs Arslanian returning to Geelong as David had a medical appointment.[215]

   [214]Exhibit P30 (Mrs Beregszaszki), T416.25–27.

   [215]Ibid T416.28–T417.5.

1. During the afternoon Mrs Beregszaszki heard Mrs Arslanian make a call to someone —who she believes was Haig—letting them know that she and David were coming back to Geelong on Monday and that David was coming home.[216]

   [216]Ibid T417.10–T418.13.

1. Mr Arslanian gave evidence that on 5 October Mrs Arslanian called him and said that she and David were on their way back from Bacchus Marsh and asked him to tell Haig that David was returning, but Mr Arslanian said ‘I’m not going to talk to Haig’ and said that she better tell David to behave, not to answer back to his brother, not to annoy him, not to raise his hands on his brother again, and to go to his room when he comes in.[217] Mr Arslanian did not speak to Haig about David returning home.[218]

   [217]Exhibit P27 (Mr Arslanian), T147.4–14.

   [218]Ibid T147.18.

The evening of 4 October 2020

1. On the afternoon of Sunday 4 October 2020, Ms Manson stopped by to see Haig.[219] She spoke to Haig briefly and he told her he had been trying to call his mother for two or three days.[220] She described him as stressed and agitated and she could see that his anxiety was heightened. She asked him ‘What’s going on bro? Are you all right?’ and he responded ‘No, I’m stressed, sis. The doctor’s coming up and I can’t get hold of mum. Mum’s not answering her phone. I don’t know where she is.’[221]

   [219]Exhibit P36 (Ms Manson), T450.3–16.

   [220]Ibid T450.22–25.

   [221]Ibid T450.29–T451.2.

1. Ms Mason said she was only there for 15 to 20 minutes and that was really all of their conversation.[222] She returned to the Arslanian’s home between 9 and 9:30pm.[223] Mr Arslanian and Haig were home when she returned.[224]

   [222]Ibid T451.2–5.

   [223]Ibid T451.18–22.

   [224]Ibid T451.24–27.

1. Ms Manson said Haig was relaxed just lying on the couch watching TV.[225] She asked him if he had got hold of his mother and he said she had called him and that David and his mother were coming home the next day.[226] Ms Manson was asked about Haig’s attitude about their return, and said she ‘could tell he was nervous, anxious, but sort of you know, he kind of shrugged it off as well’.[227] When asked what Haig said about the phone call with Mrs Arslanian, Ms Mason said that Haig had been ‘upset with her on the phone’ and that Haig said ‘he got a bit heated with her … because she told him … she was planning on bringing David back to the house’.[228] Haig ‘told her not to, because he wasn’t ready for David to come back because he was still angry from the fight’. [229] She also recalled the following conversation with Haig on 4 October:

[H]e said, ‘I’m scared. I’m scared to – I don’t want to see him. I’m scared’ and I said, ‘There’s nothing to be scared about’ and he’s like, ‘I’m angry and I don’t – I don’t want to hurt anyone’ and I know what he means by that. He doesn’t want to – ‘cause he can’t control his emotions at times, or being pushed so far and being hurt by David a couple of weeks prior and still - - -[230]

[225]Ibid T452.2–5.

[226]Ibid T452.7–10.

[227]Ibid T452.11–13.

[228]Ibid T452.16–24.

[229]Ibid T452.16–24.

[230]Ibid T455.4–11.

1. In cross-examination, Ms Manson agreed that Haig was distressed about David returning to the home because of the fight a few weeks prior and because he believed he might be hurt if there was another fight.[231] Ms Manson agreed that Haig’s symptoms of anxiety had increased, including physically.[232] Ms Manson was asked in re-examination about any conversation she had had with Haig where he had expressed that he was nervous that he might be hurt when David returned.[233] Ms Manson’s evidence was that Haig had said ‘I don’t want to fight with David again … I’m already hurt from the last time and I don’t want to hurt him.’[234]

   [231]Ibid T477.12–20.

   [232]Ibid T477.14–15.

   [233]Ibid T480.8–10.

   [234]Ibid T480.12–16.

The morning and afternoon of 5 October

1. Ms Manson stayed the evening at the Arslanian home and recalled that in the morning Haig seemed okay.[235] She stayed with Haig until 11:30am or 12pm. When she left, she asked if Haig wanted to come with her.[236] Ms Manson left and returned to her home.[237] When asked about any conversation that morning about Mrs Arslanian and David returning, Ms Mason said that all Haig said was, ‘I’m feeling anxious, Sis. I’m feeling nervous and anxious when I see David.’[238]

   [235]Ibid T453.17–20.

   [236]Ibid T453.22–31.

   [237]Ibid T456.18.

   [238]Ibid T454.12–14.

1. Throughout the day Haig communicated with Ms Diver via text messages and phone calls until 5:30 or 6:00pm.[239] At approximately 2:00 or 3:00pm Ms Diver had a telephone conversation with Haig.[240] Ms Diver recalls Haig telling her that he was anxious about the prospect of David returning to the family home,[241] and that she told Haig to calm down and breathe.[242] Haig’s voice was different on that day and sounded ‘just a bit rattly, not – just not … steady, like the same how he usually is, calm’.[243]

   [239]Exhibit P34 (Ms Diver), T507.15–22, T508.23–29.

   [240]Ibid T509.19–28.

   [241]Ibid T507.25–29.

   [242]Ibid T507.30–31.

   [243]Ibid T508.16–22.

1. Mrs Beregszaszki gave evidence that David and Mrs Arslanian left her home on Monday 5 October at around 1pm.[244] Later that afternoon around or possibly after 2pm, Mrs Beregszaszki rang Mrs Arslanian. At the time Mrs Arslanian was home, everything was calm, and she was going to go shopping.[245]

   [244]Exhibit P30 (Mrs Beregszaszki), T418.14–17.

   [245]Ibid T418.20–27.

1. At 2:57pm, Haig sent the following text message to his brother Armen:

The dum bitch brang fat cunt home naw my anx is going thru the roof I’m shaking and I’m angry fuck.[246]

[246]Exhibit P1 (Text messages between Haig and Armen).

1. Haig frequently referred to his anxiety as his ‘anx’ both in text messages and orally. The use of the word ‘anx’ is at various points mis transcribed as ‘angst’. I accept that Haig is referring to his anxiety, and not to ‘angst’.

1. Armen stated that the language Haig used in the text message was ‘just normal’,[247] as that was the way Haig communicated.[248] However, he said that Haig would not have normally described David as ‘fat cunt’.[249] Armen was not worried about what Haig might do after receiving the text messages.[250] Armen responded to Haig’s text stating: ‘Don’t worry about it you’.[251]

   [247]Exhibit P25 (Armen), T86.9–10.

   [248]Ibid T94.15.

   [249]Ibid T86.9–10.

   [250]Ibid T94.17.

   [251]Exhibit P1 (Text messages between Haig and Armen); Exhibit P10 (Haig’s text message records).

1. About an hour later, at 3:54pm Haig sent a further text message to Armen:

I’m home alone with that fat fuck do I wack the cunt while there’s no one here to help him liying [sic] down like a king the prick mums running round for him told her to fuck off see what happens tonight fuck sake pigs they are[252]

[252]Exhibit P10 (Haig’s text message records), 39.

1. Armen did not respond to the second text message.[253] He was not concerned that Haig might do something after he received the second text message.[254]

   [253]Exhibit P25 (Armen), T87.29.

   [254]Ibid T94.25, T96.17.

1. Shortly after sending that text message to Armen, Haig and Ms Diver exchanged further text messages. At 5:10pm, Ms Diver called Haig. The phone call lasted 33 minutes and 3 seconds.[255] At 5:48pm Haig called Ms Manson. That call lasted 20 seconds.[256] Neither Ms Diver nor Ms Manson gave specific evidence about these phone calls. However, the text messages between Haig and Ms Diver are unremarkable.

   [255]Exhibit P11 (Haig’s phone records), T522.25–28.

   [256]Ibid T522.29–T523.1.

The shooting

1. There is a dispute on what occurred in the lead up to the shooting on 5 October. The relevant evidence is that of Mrs Arslanian as well as Haig’s accounts in his ROI, to Ms Manson, to Mr McGarrigle and to Dr Pandurangi. Each of their accounts of the relevant events will be considered in detail later in this judgment.

1. It can be readily accepted that shortly before 7:21pm on 5 October Haig shot David twice with a shotgun owned by his father. The following witnesses gave evidence of hearing the shots:

(a)        Mr Allwright said the shots were ‘[o]h, bang bang, like a couple of seconds’;[257]

(b)       Ms Felder described the shots as ‘just like “Boom, boom” … It was just, yeah – well, just straight after one another;[258] and

(c)        Ms Zorlak said that one was ‘quite loud’ and the other ‘was quite muzzled’.[259] She recalled the two bangs being seconds apart but were not in very quick succession.[260]

[257]Exhibit P29 (Mr Allwright), T221.26.

[258]Exhibit P28 (Ms Felder), T216.1–4.

[259]Exhibit P31 (Ms Zorlak), T426.6–7.

[260]Ibid T427.13–17.

1. Ms Felder said that before she heard gunshots, she heard arguing in the Arslanian’s backyard. She could not understand what was being said but the voices were ‘angry and just yelling’.[261] Ms Felder was unsure if the screaming and yelling went on for 10 minutes or 15 minutes.[262]

   [261]Exhibit P28 (Ms Felder), T215.6–7.

   [262]Ibid T215.25-27.

1. At 7:21pm Mrs Arslanian made a call to triple 0, which lasted for 18 minutes.[263] Police and paramedics attended the scene shortly after Mrs Arslanian’s triple 0 call and resuscitation attempts on David ceased at approximately 8:18pm.[264]

   [263]T54.15–22; Exhibit P40 (Mrs Arslanian’s phone records).

   [264]Exhibit P33 (Sgt Jones), T496.3–5.

1. Sgt Jones, who was one of the first police members to attend gave evidence that upon his arrival, the Arslanian home was ‘cleared’ by officers going through each room systematically to make sure that there was no one in there. It took around 30 seconds to clear the house and during that process a number of doors were opened. Sgt Jones said that he may have moved furniture out of his way as he moved through the house.[265] Sgt Jones said that BWC footage was taken and that it would have been supplied to the investigators.[266]

   [265]Ibid T495.28–T496.2.

   [266]Ibid T496.26–T497.5.

1. When first responders arrived David and Mrs Arslanian were in the front loungeroom, located to the left when entering through the front door. To the right of the front door is Mr and Mrs Arslanian’s bedroom. Straight up the hallway is the kitchen and family room area. At the rear of the family room, in line with the front door and hallway, is the door to David’s bedroom, while Haig’s bedroom door is immediately to the right of David’s. Behind the dining table there is an archway connecting the kitchen/family room area with the front loungeroom.[267] However, at the time there was a coffee table, a bar fridge and other items obstructing access through the archway.[268] The Arslanian’s home is compact and densely furnished, particularly in the family room at the rear of the house.

   [267]Exhibit P3 (Floorplan of the Arslanian home); Exhibit P42 (Crime scene video).

   [268]Exhibit P42 (Crime scene video).

1. The police photographs and crime scene footage show a smashed mirror hanging in the family room to the left of David’s bedroom, with shards of glass below it and in front of David and Haig’s bedroom doors. Police found one undischarged and two discharged shotgun shells on the dining table, which is located next to the back sliding door. There are five chairs around the kitchen table. A sixth chair is approximately one metre from the kitchen table, but three to four metres from the mirror. [269]

   [269]Exhibit P22 (Photographs), photo 75.

1. Police conducted a search of the premises, and a shotgun was found covered in the garage. A gun case for this shotgun was found in Haig’s bedroom, along with some ammunition.

Haig’s conduct after the shooting

1. It is not disputed that Haig placed the shotgun in the garage and covered it before leaving the house.

1. After the gunshots Ms Felder heard the back sliding door to the Arslanian’s home open and heard Haig come out. She heard him yell a few words out but did not understand what he said.[270] Ms Felder heard the door slamming probably within five minutes of hearing the gunshots.[271] Mr Allwright’s evidence was that less than five minutes after hearing the gunshots he saw someone leaving the house.[272]

   [270]Exhibit P28 (Ms Felder), T216.5–14.

   [271]Ibid T216.13–14, T216.23.

   [272]Exhibit P29 (Mr Allwright), T222.4–15.

1. At 7:25pm on 5 October, Ms Manson received a telephone call from Haig.[273] The call lasted for 3 minutes and 26 seconds. She gave the following evidence in relation to the telephone call:

Well, at first, when I answered the call, all I could hear was a lot of wind um and panting.

And the first words that he said was ‘I’m sorry, sis. I fucked up.’ And I said, said, ‘Is that you, bro?’ and he said, ‘Yeah.’ Like ‘Where are you?’ He says, ‘I fucked up, sis. I fucked up.’ He just kept repeating and I’m like ‘What’s going on? You need to take a breath.’ And he just said, ‘I shot my baby – I’m so sorry, I’ve got to go. I’ve ruined everything. I’ve got to go.’ And then he hung up the phone. And I froze, I took a breath and then he called – he called back. And that’s when I said to him, ‘Where are you?’ Um, and he said um, ‘I’m, I’m running along the trail’, and I said, ‘Well, you stay there. Don’t go anywhere. I’ll come and find you.’ …

…

[W]hen we did speak on the phone when he did ring me and he said to me, ‘I shot habibi, I shot habibi.’ I said, ‘Where is the gun, bro? Where’s the gun?’ He goes, ‘I don’t have it, I’ve left it there, I’ve left it all there’ and I remember him saying, ‘I’ve told mum to ring the ambulance. I told mum to ring the ambulance’ and he goes, ‘And I heard a siren and then I ran, Sis’ and I vividly remember him saying – saying that. So I knew he was unarmed when I went to get him ...[274]

[273]Exhibit P36 (Ms Manson), T456.19–24; Exhibit P11 (Haig’s phone records).

[274]Ibid T456.27–T457.10, T463.12–20.

1. Kevin called Haig at 7:34pm and asked Haig if everything was okay. Haig said ‘I don’t know, I don’t know’ or ‘I don’t think so’.[275]

   [275]Exhibit P11 (Haig’s phone records); Exhibit P26 (Kevin), T116.25–29.

1. Ms Manson’s evidence was that about 20 or 30 minutes after her phone conversation with Haig she found Haig behind some bushes on the Bellarine Rail Trail, carrying his backpack. She drove him back to her home. Haig looked panicked and stressed when she picked him up.[276] He was ‘freaking out’[277] and ‘frantic’ and when he got into the car ‘he just started hitting himself and hitting the dashboard’.[278]

   [276]Exhibit P36 (Ms Manson), T457.25–27.

   [277]Ibid T457.29–30.

   [278]Ibid T458.1–4.

1. Ms Manson asked her friend who was visiting at her house to leave, in order to bring Haig inside.[279] When she returned to the garage where she had left Haig, he was not there.[280] She found Haig behind the shed vomiting.[281] When Ms Manson brought Haig inside her home, ‘he went off to the bathroom, spent probably 15, 20 minutes in there. Just vomiting.’[282]

   [279]Ibid T458.30–T459.7.

   [280]Ibid T459.18.

   [281]Ibid T459.19.

   [282]Ibid T459.22–23.

1. Ms Manson contacted Haig’s brother, Kevin,[283] and later he and Mr McGarigle attended at her home.[284] They arrived at Ms Mason’s house at approximately 11:00pm.[285] They were at Ms Manson’s house for about 20 minutes or half an hour and then left.[286]

   [283]Ibid T475.24–26.

   [284]Ibid T474.5-12; Exhibit P32 (Mr McGarigle), T483.4–12; Exhibit P26 (Kevin), T118.29–T119.1.

   [285]Exhibit P36 (Ms Manson),T483.4–17.

   [286]Exhibit P26 (Kevin), T121.3–5.

(g)       the shooting occurred in the kitchen or family living area and not at the front door.

[613]Ibid 29 [Q256]–[Q257].

[614]Ibid 59 [Q541].

Haig’s mental health

1. Haig’s mental health is relevant when considering whether he genuinely believed he had other options. Haig suffered from serious and debilitating mental health issues, including agoraphobia. The overwhelming evidence is that Haig could not just leave the house without difficulty. Mrs Arslanian recalled that in his visits to the GP, Haig would be given tasks such as crossing the road and sitting on a park seat by himself. Haig was unable to attend a single doctor’s appointment unless he was accompanied by his mother. Mrs Arslanian would enter the clinic and wait until the doctor was ready and Haig only left the car when he could enter the doctor’s treatment room. Ms Manson recalled Haig not wanting to leave the Arslanian home and her being the one to visit him. Likewise, Ms Diver was aware that Haig rarely left the house. Even when Mr Arslanian asked David and Haig to leave after the September incident, his parents let Haig remain at home as he had nowhere to go due to his agoraphobia and mental health issues.

1. Dr Pandurangi was of the opinion that Haig’s offending cannot be understood without taking into account his personality disorder and severe anxiety disorder. Dr Pandurangi considered the September incident and David’s threats to kill him highly relevant and indicated that Haig would not have been able to self-regulate or calm down after the September incident. David’s return to the home on 5 October and the subsequent fight would have confirmed Haig’s existing belief that David was going to harm him. It was in this psychological state of extreme anxiety and fear for his wellbeing that Haig gets the gun and hides it under his bed. Haig’s perception of the situation in his heightened state led him to believe that getting the gun was his only option to scare his brother or ‘get him off his case’.

1. I accept Dr Pandurangi’s  evidence  that Haig’s behaviour up to and including the offending cannot be understood without consideration of Haig’s mental health. I agree that Dr Pandurangi’s task is to assess what an accused says to him against collateral evidence available. I do not accept the prosecution’s criticism of Dr Pandurangi’s evidence and methodology, and do not consider that his conclusions are unsubstantiated.

Conclusion on belief in necessity

1. Haig’s actions must be viewed in the context of family violence. This was his home and he continued to live there after the September incident. The prospect of David’s return following the September incident meant that Haig did not feel safe in his own home because he held a genuine belief that David would harm him. It was in this context that Haig stole the firearm; he realised that after the September incident, there may come a time where he had to protect himself from another physical assault given the last time caused him to fear for his life.

1. There was a history of at least two years of David being violent towards other family members, but most often violent toward Haig. David’s violence was not limited to physical acts but included intimidation and harassment. Haig’s firsthand knowledge and experience of David’s violence clearly affected his state of mind in the moments before the shooting. He said in the ROI that he was scared because of what had happened three weeks earlier and because David used his size to hurt and intimidate him.

1. The overwhelming emotion that Haig described in the period leading up to the shooting was fear. Haig said that in addition to fear, he felt anger and rage. Haig does not resile from the fact that his ‘[anx] got the better of him’ and says ‘I lost it, I had enough’.[615] In his ROI Haig was careful to ensure that his answers were as accurate as possible and he did not want to lie. When asked what the argument was about, he was careful to say that it was not an argument but that David had just said some words to him. According to the account given to Ms Manson, Haig told David to ‘hush, just hush’.[616] Haig said there was a scuffle, that was physical and verbal, and Mrs Arslanian gave evidence that there was a chair thrown by Haig towards David. This may be consistent with anger, but also may be consistent with a defensive action to keep David physically away from Haig.

   [615]Ibid 28 [Q253], 29 [Q259]–[Q261].

   [616]Exhibit P36 (Ms Manson), T461.12–14.

1. The text messages from Haig’s phone on 5 October confirm that during the day he worked in the garden, cutting the lawns and sent numerous text messages to Ms Diver. Just minutes before 3:00pm he sent the first text message to his brother Armen. At 3:54pm almost one hour after the first message Haig sends the second text message to Armen. Armen was not worried about the text messages and thought he would talk to Haig after he had finished in the butcher shop.[617]

   [617]Exhibit P25 (Armen), T87.17–T88.4.

1. It is not clear what he or David did in the period after the second text message to Armen and before the eventual altercation between Haig and David. The records reflect that Haig continued texting Ms Diver. The content of those texts is again unremarkable.

1. The fact that Haig was angry does not diminish the fear he experienced on David’s return home and particularly when David was coming towards him. I agree with the defence submission that fear and anger can exist at the same time and are not mutually exclusive. This is consistent with Dr Pandurangi’s opinion.  Dr Pandurangi explained that anger is a normal emotion, however how Haig processes that anger is different from most people. He described Haig’s anger in the context of emotional dysregulation, which encompasses many of Haig’s emotions rather than just a single emotion such as anger. Importantly, the history Haig provided to Dr Pandurangi that he heard voices to protect himself after David put his head in the mirror and in the moment he pulled the trigger, were thought processes of a very distressed and frightened man.

1. Haig had only weeks before nearly been killed by David who placed his body on him, pinned him down and then strangled him until his father and mother saved him. In the ROI when describing the moments before he shot David, Haig said that David had just said ‘Come on, hero’ and he then demonstrated verbally, ‘[David] was in my face’. He made distressing sounds to describe the moment and made gesticulations with his hands to try to convey what was a terrifying scenario for him.[618]

   [618]Exhibit P8 (ROI), 16 [Q137].  

1. The text messages to Armen at 2:57pm and 3:54pm[619] reflect that Haig was angry that David had returned home. They equally reflect that he was extremely anxious: ‘my anx is going thru the roof I’m shaking an I’m angry fuck’.[620] Dr Pandurangi’s evidence was that David’s return home would have worsened Haig’s anxiety which is evidenced in his text messages to Armen.

   [619]Exhibit P1 (Text messages between Haig and Armen); Exhibit P10 (Haig’s text message records).

   [620]Ibid.

1. Despite the second text message to Armen, Haig does not go and get the gun until he is physically assaulted by David. The assault is violent and serious. David grabbed Haig’s head and pushed him into the mirror with sufficient force to smash the mirror and leave Haig with a visible abrasion and a lump.[621]

   [621]T512.19–20, T574.10–16; Exhibit P26 (Kevin), T123.22–31; Exhibit P9 (Photographs of Haig at the Geelong Police station on 6 October 2020).

1. I consider that Haig experienced anger and fear on 5 October from when David and Mrs Arslanian returned home. He had a an existing belief that David would harm him and it is in this state of extreme anxiety about his own wellbeing that Haig reacted on 5 October. After David pushed Haig’s head into the mirror, Haig’s overwhelming emotion was most likely fear that David would seriously injure him or even kill him. It is open to conclude or it is a reasonable hypothesis that Haig believed in that moment that he had no option but to get the gun as it was likely David would attack again and Haig would not be able to defend himself.

1. I accept Dr Pandurangi’s opinion of Haig’s state of mind and perception of the situation. In addition to the factors mentioned by Dr Pandurangi, Haig had no one to protect him on this occasion.

1. At the time of the scuffle and after David pushed Haig’s head into the mirror there was both an immediate and long term threat to Haig:

(a)        Haig’s account of the events in the ROI demonstrates there was an immediate threat. Having retrieved the gun and having tried to scare David, it was only when David continues to come at him or is lunging at him that Haig shoots; and

(b)       the history of family violence demonstrates David posed a long term and enduring threat to Haig. Following from this is the likelihood that after the September incident, Haig thought there would be a threat anytime David returned home. Getting the gun before 5 October is consistent with Haig believing there was a threat that David would seriously hurt him again.

1. I accept that at that time Haig believed that firing the gun was necessary to protect himself. In Haig’s mind it was the only response available to him at that point in time.

1. The submission that Haig had options available to him fails to have proper regard to his mental health issues and the debilitating impact they had on his life generally and specifically in relation to the circumstances of the shooting. When I consider the difficulties Haig had on a daily basis interacting with people and leaving the house, in the context of this highly fuelled and dangerous situation, I accept that Haig would not have been able to just leave the house or get help in the way an individual not affected by his mental health issues may have been able to. Crucially, at the time Haig actually fired the shots David was coming at him, and given the layout of the Arslanian’s home and David’s size I do not accept that Haig would have had any means of escape at that time. I reject the prosecution’s submission Haig ran away after the shooting to hide or evade arrest. Dr Pandurangi considered packing a bag and leaving was a normal panic response and not evidence of a calm and measured response. Even in the ROI, Haig disagreed with the police that he tried to run away and he explained that he would have taken ‘socks and jocks’ if he was going to run away.

1. On the facts as I have found them, I am satisfied to a high degree of probability that Haig believed firing the shots at David was necessary to defend himself from death or really serious injury.

1. Even if I had not accepted Haig’s account of the shooting, the prosecution would still bear the onus of proving beyond reasonable doubt that Haig did not believe that firing the shots at David was necessary in self-defence. Given the context of family violence there would remain a reasonable possibility that Haig believed it was necessary to fire the gun in self-defence, based on the following evidence:

(a)        in the two and a half years leading up to the shooting, David was becomingly increasingly aggressive to Haig and other family members, culminating in a life-threatening assault on Haig only weeks before the shooting;

(b)       David used his size to intimidate Haig and physically overpower him. The size difference between Haig and David created a significant power imbalance between them;

(c)        Haig and David lived in the same house in the context of a history of family violence;

(d)       Haig’s mental health affected his perceptions of risk and his ability to respond to any long term or immediate risk. Haig’s mental health prevented him from leaving his home in the long or short term;

(e)        the broken mirror, the state of the kitchen living area and placement of chairs support a conclusion of a serious physical confrontation between Haig and David just before the shooting;

(f)        David had a tendency to act violently to family members including Haig, making it more likely that he would have reacted violently on 5 October by pushing or ramming Haig into the mirror and coming at or lunging towards Haig even once he had retrieved the gun; and

(g)       the shots were fired in quick succession, consistent with defensive action.

1. Accordingly, I am not satisfied that the prosecution has proved beyond reasonable doubt that Haig did not believe it was necessary to do what he did to defend himself.

Reasonable response

1. I will now consider the second way in which the prosecution can prove that Haig was not acting in self-defence. In order to negate self-defence, the prosecution must prove beyond reasonable doubt that Haig’s conduct was not a reasonable response in the circumstances as he perceived them.[622]

   [622]Crimes Act s 322K(2)(b).

1. The question of whether an accused’s conduct was a ‘reasonable response’ is an objective test; however, it must be considered in light of the circumstances as subjectively perceived by the accused. The relevant determination is whether there is a reasonable possibility that the accused’s conduct was a reasonable response in the circumstances as they perceived them.[623] As the fact finder is required to assess the response of the accused (and not of a reasonable person), personal attributes including, for example, the accused’s age, gender and state of health as well as the surrounding physical circumstances are relevant.[624] The reasonableness of the response should also be assessed in terms of the objective proportionality of the conduct to the perceived situation, although again this must be determined against the circumstances as the accused perceived them.[625]

   [623]Judicial College of Victoria, Criminal Charge Book (online at 28 November 2022) ‘8.1 Statutory Self-Defence (from 1/11/14)’ [52].

   [624]Ibid [54] citing R v Katarzynski [2002] NSWSC 613; R v Forbes [2005] NSWCCA 377; Ward v R [2006] NSWCCA 321.

   [625]Ibid [55]–[56]. See also Flanagan v R [2013] NSWCCA 320.

1. The context of family violence in which the shooting occurred is a key factor in assessing whether Haig’s conduct was a reasonable response in the circumstances. The day of the shooting was the first time that Haig saw David after the September incident where David had seriously assaulted Haig and Haig, very legitimately, feared for his life.

1. It was following this serious assault that Haig initially stole the shotgun when David was not living at home with him. It is open on the evidence that Haig got the shotgun in part because he was angry but also out of fear and a feeling that he needed it to protect himself from David hurting him again. As the September incident demonstrates, David could easily overpower Haig, rendering him essentially defenceless in any physical confrontation with David. When David returned to the Arslanian home on 5 October, Haig had every reason to be fearful that David would assault him again.

1. The prosecution submits that on the night of the shooting Haig could have left the house anytime, including after David pushed his head into the mirror. This submission does not address Haig’s mental health and the difficulties he had leaving the house at all times, let alone after the assault on 5 October.  It is open on the totality of the evidence to conclude that the only way Haig perceived he could defend himself against David in this moment, given how small and compact the area they were in, David’s anger and assault on Haig moments before, was for Haig to get the shotgun he had hidden in his bedroom to scare David and to protect himself. In relation to Haig’s perception of the circumstances at this time, Dr Pandurangi said:

Ah, he then describes having been involved in another fight with his brother, where his brother kind of pulls his neck in, smashes his face against a mirror. And that would have again, kind of confirmed his belief, what his existing belief that his brother’s going to harm him. And in that psychological state where he’s extremely anxious and he’s extremely worried about his own kind of well-being, he picks up a gun which he had hidden under his bed, and points to his brother, and he believed that -what I described as a tunnel vision, he believed that was the only viable option he had at the time.[626]

[626]Exhibit D1 (Dr Pandurangi), T375.11–T376.7.

1. While there must have been a short break in the physical confrontation for Haig to retrieve the shotgun, it is important to note that in the context of family violence an accused’s conduct may be a reasonable response in the circumstances as the person perceives them even if the accused is responding to a harm that is not immediate.[627] Furthermore, while the use of a shotgun against an unarmed person may ordinarily be disproportionate, in the context of family violence the conduct of an accused may be a reasonable response in the circumstances even if the response involves the use of force in excess of the force involved in the harm or threatened harm.[628]

   [627]Crimes Act s 322M(1)(a).

   [628]Ibid s 322M(1)(b).

1. In any event, the evidence retains the reasonable possibility that Haig did not consider the threat had ended after having his head pushed into the mirror nor while he went to get the gun.

1. Ultimately, once Haig had retrieved the gun and pointed it at David with the intention to scare him, David moved towards Haig, seemingly aggressively. The whole incident would have been very quick and the two gunshots were inflicted in rapid succession. No doubt retrieving the gun escalated the situation. However, I do not accept the prosecution’s submission that on the night of the shooting Haig could have left the house anytime, including after David rammed his head into the mirror.

1. The question of reasonable response involves considerations of community standards and is a matter on which reasonable minds may differ. The context of family violence in which the events occurred makes the question of reasonableness more complex. In this context Haig’s mental health becomes particularly relevant to the reasonableness of his response in the circumstances as he perceived them; his mental health and particularly his anxiety were inherently linked with his experiences of family violence.

1. As the prosecution submits, a context of family violence does not justify use of any level of force in any circumstances. However, on the facts as I have found them, David acted aggressively towards Haig even after Haig pointed a gun at him. Haig would have expected David to have retreated at this point. The evidence leaves open the reasonable possibility that it was not until David began to pose an immediate threat to Haig by moving towards him that Haig fired the two fatal shots in rapid succession. It is telling that in the ROI Haig says, ’When I hurt my brother, he was coming for me still.’[629]

   [629]Exhibit P8 (ROI), 16 [Q128].

1. Given the physical disparity between Haig and David, the history of family violence, and Haig’s perception that there was no possibility of escape, the prosecution has not excluded the reasonable possibility that Haig’s conduct in firing the gun was a reasonable response to what he perceived was an immediate threat of death or really serious injury at David’s hands.

1. I am therefore not satisfied that the prosecution has established beyond reasonable doubt that firing the gun at David was not a reasonable response in the circumstances as Haig perceived them.

Conclusion

1. I am not satisfied that the prosecution has proved beyond reasonable doubt that Haig did not believe it was necessary to do what he did to defend himself, nor that Haig’s response was not a reasonable response in the circumstances as Haig perceived them.

1. Therefore, Haig’s conduct was legally justified because he acted in self-defence. As a result, the prosecution has not proved that the relevant act was unlawful for the purposes of the offence of manslaughter by unlawful and dangerous act.

Verdict

1. I direct that an entry of not guilty be made on the record in respect of the charge of manslaughter in the indictment numbered L12366684A.