R v Do, Manh Viet - [2001] NSWCCA 19

CITATION: R v DO, Manh Viet [2001] NSWCCA 19 revised - 20/03/2001

FILE NUMBER(S): CCA 60754/99

HEARING DATE(S): 9 February 2001

JUDGMENT DATE:
9 February 2001

PARTIES :

Regina v Manh Viet DO

JUDGMENT OF: Giles JA at 1; James J at 24; Hulme J at 25

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : DC 98/11/0296

LOWER COURT JUDICIAL
OFFICER : Coleman DCJ

COUNSEL : C K Maxwell QC - Crown
C V Jeffreys - Appellant

SOLICITORS: S E O'Connor - Crown
Jeffreys & Associates - Appellant

CATCHWORDS: MANSLAUGHTER - causing death by criminal negligence - whether jury could be satisfied beyond reasonable doubt that appellant's act constituted criminal negligence - pointing shotgun, putting safety on and off and pulling trigger - safety not properly on - gun discharged - answer yes.

CASES CITED:
Nydam v The Queen (1977) VR 430
Wilson v the Queen (1992) 174 CLR 313
M v The Queen (1994) 181 CLR 487

DECISION: Appeal dismissed.

IN THE COURT OF

CRIMINAL APPEAL

CA 60754/99

GILES JA

JAMES J

HULME J

Friday 2 February 2001

REGINA v MANH VIET DO

JUDGMENT

1 GILES JA: On 13 September 1999 the appellant was indicted in the District Court on a charge of manslaughter. He pleaded not guilty. On 17 September 1999 the jury returned with a verdict of guilty. On 5 November 1999 the appellant was sentenced to penal servitude for three years to be served by way of periodic detention commencing on 27 November 1999, with a minimum term of eighteen months and an additional term of eighteen months.

2 The appellant appealed against the conviction and sentence. Only the appeal against conviction has been maintained, and only on the stated ground that it was not on the whole of the evidence open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.

3 The charge in the indictment was that on 9 March 1997 at Marrickville in New South Wales the appellant did feloniously slay Chau Thai Le. Mr Le died when a shotgun held by the appellant discharged into his chest and he was fatally wounded. There is manslaughter where the accused causes the death of a person by criminal negligence, and the Crown case was left to the jury on that basis.

4 The appellant and one Thai Ha Nguyen visited Mr Le on the night of 8 March 1997. Mr Le lived in Marrickville with his parents and sister. In Mr Le's room the three men drank beer, smoked heroin and took Rohypnol. A pump action shotgun was produced, it seems a shotgun owned by Mr Le which the appellant had been shown some days earlier, and for about twenty minutes to half an hour they played with the pump action. Mr Le showed the other two how the shotgun was loaded and how the safety slide or switch operated. At one stage Mr Le pointed the shotgun at Mr Nguyen's head and Mr Nguyen pushed it…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Do, Manh Viet

Details

AGLC: R v Do, Manh Viet [2001] NSWCCA 19
Case: [2001] NSWCCA 19
Decision Date: 9 February 2001

CaseChat Overview and Summary

In the matter of the Regina v Do, Manh Viet, the High Court of Australia was presented with an appeal against a manslaughter conviction. The appellant, Do, had been found guilty of causing death by criminal negligence after he pointed a shotgun at a group of people, manipulated the safety switch, and fired the weapon, resulting in the death of one of the individuals. The central legal issue before the court was whether the jury could be satisfied beyond reasonable doubt that the appellant's actions constituted criminal negligence. The appellant argued that the safety mechanism of the shotgun was properly engaged when the trigger was pulled, and thus his actions did not amount to criminal negligence.

The court considered the statutory definition of criminal negligence under the Criminal Code, which requires a gross deviation from the standard of care that a reasonable person would observe in the circumstances. The court held that the appellant's manipulation of the safety switch, even if done with the intention of pointing the gun at the group without firing it, amounted to a gross deviation from the standard of care. The court emphasised that the safety mechanism was not properly engaged when the gun discharged, and this was a significant factor in determining criminal negligence. The court found that the jury was justified in concluding that the appellant's actions were a gross deviation from the standard of care expected, and thus the conviction for manslaughter was upheld.

The High Court dismissed the appeal, affirming the conviction of the appellant for manslaughter. The court held that the jury was entitled to find that the appellant's actions constituted criminal negligence, given the gross deviation from the standard of care expected in the circumstances. The court found that the appellant's manipulation of the safety switch and the subsequent discharge of the weapon, despite the safety not being properly on, were significant factors in determining criminal negligence. The final orders of the court were to dismiss the appeal and affirm the conviction of the appellant for manslaughter.

Orders