R v Nghia Trong Nguyen (Ruling No 2)
[2010] VSC 442
•29 September 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1625 of 2009
| THE QUEEN |
| v |
| NGHIA TRONG NGUYEN |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 27 & 28 September 2010 | |
DATE OF RULING: | 29 September 2010 | |
CASE MAY BE CITED AS: | R v Nghia Trong Nguyen (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 442 | |
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CRIMINAL LAW – Manslaughter – Unlawful and dangerous act – Meaning of unlawful – Firearms Act 1996 – Possession of unregistered handgun – Whether mere regulatory or statutory prohibition – Mens rea required for unlawful act – Intention to possess – Unlawfulness of possession sufficient to establish unlawful and dangerous act manslaughter.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C Beale | Office of Public Prosecutions |
| For the Accused | Mr W Toohey | Haines and Polites |
HIS HONOUR:
In this ruling I am required to determine whether or not manslaughter by unlawful and dangerous act may be put to the jury by the prosecution in the trial of the accused man. The central question is whether the act or acts of the accused which are alleged to have caused the death of the deceased were unlawful in a way which could support a verdict of guilty of manslaughter on that basis. The prosecution will also put their case against the accused man to the jury on the basis of manslaughter by criminal negligence. As yet the accused has not been arraigned and a jury has not been empanelled.
The Prosecution Case
In order to understand how this issue arises it is necessary to outline the factual basis on which the prosecution case will be put. The accused, Nghia Nguyen, is charged with the manslaughter of Tim Nguyen on 19 November 2008. On 18 November 2008, the accused and his friends, one of whom was the deceased, had been together in a bungalow at the home of the accused in St Albans. The evidence suggests that over a period of three or four days they had been consuming the drug methamphetamine (“ice”) and had been awake for all or most of the time. In the early morning of 19 November 2008, the accused man produced a sawn-off shotgun which he had purchased illegally, together with some ammunition. Subsequently, on the prosecution case, as the firearm was being handled and displayed by the accused, it discharged and the deceased was shot and died of his injuries. It is not suggested that there was anything deliberate about the discharge of the firearm, though the Crown rely on the deliberateness of the possession of the firearm and the handling of it leading to the fatal incident. That act is alleged to be unlawful.
Trung Dang, who was a person present when the incident occurred, will give evidence that when he went to the bungalow of the accused in the early hours of 19 November 2008 he could see what looked like a shotgun behind the accused. He said the accused took the gun from behind him and started waving it around and was messing around with it. His statement then contains the following:
“Nghia was still sitting on the couch and he was waving the shotgun around. Nghia was not saying anything to anybody; he was just sort of showing off. At that time, I was sitting down, Johnny was sitting down, and Tim was standing up beside the bed. All of a sudden there was a big ‘bang’ and the gun went off. I saw Tim collapse to the floor, I could see blood everywhere.”
Mr Dang went on to say that he had been told there was a suggestion that he, Dang, had handled the firearm which he said was not true.
The other person present was Johnny Pham. He described being at the premises of the accused and then described what occurred some time after Mr Dang arrived. He said:
“After we finished the food, we were joking around and Nghia got out his gun. I had never seen his gun before that day, but I knew he had a single barrel shotgun that was cut down. I had first seen this gun when I first arrived sitting on the top of the back of the couch. I did not see Nghia get the gun out, but it was in the bungalow as I did not see him leave the bungalow at any point to go and get it. He said he did not say he was going to get the gun out, but we all knew he was going to though. At this point I was still playing the computer and not looking at or toward Nghia but could see him out of the corner of my eye. I knew that at this point he was getting his gun out. When he stood up from playing the computer game I could clearly see he had it then. I could see he had the gun in both hands and he would have been about two metres away from me. In between us there were two coffee tables, two laptop computers and a three seater blue lounge. Nghia was sitting on this lounge by himself prior to getting the gun out. I had a clear view of the room and everyone in it. Trung and Tim [the deceased] were sitting on the other blue three seater lounge. The two lounges were directly next to each other in an L-shape. I was about two metres away from Nghia. Tim and Trung were about a metre away from Nghia. As Nghia was getting out the gun I was seated on the queen sized bed with Nghia’s old desktop computer in front of me. Trung was seated on the low blue coloured three seater couch that matches the other one and it was against the back of the wall. Nghia to my knowledge said nothing as he got the gun out and it was toward the direction of where Tim and Trung were sitting. Nghia was standing up when it went off and Tim and Trung were still seated, and Tim was leaning forward playing the laptop computer. I did not see Nghia pull the trigger of the gun but his hands were in the area of the trigger. It was a loud bang and I immediately stopped playing my game and all of it stood up including Tim.”
In his record of interview the accused gives a different description of the incident. Initially he said[1] that another person in the room was playing with the gun and that as he was trying to put the gun away it discharged. Later,[2] the accused man suggested that someone else may have put a cartridge in the firearm and the gun went off as he was trying to put it in a bag. He said that he gave in to requests to look at the gun and he gave it to one of his friends who looked at it and played around with it. He said the ‘safety’ was on when he did that and it was not loaded[3]. He said that when he got the gun back he may have pressed on the trigger[4] to disassemble the gun. He thought he may have pressed the “wrong trigger”[5] and he described where his finger was. Those matters were discussed several times during the interview. In a later portion of the interview[6] the accused seemed to be saying that he handed the closed firearm to another person present and when he took it back it was closed and he picked it up. He then tried to break it and in doing so discharged the firearm by mistakenly pressing the trigger.
[1]Question 45
[2]Question 144
[3]Questions 212-216
[4]Question 223
[5]Question 234
[6]Commencing at question 905.
To the extent that there will be a factual issue in the case, it will concern whether the accused maintained physical possession of the firearm throughout the incident leading up to the fatal shot. The alternative account is that another person in the room handled the firearm and may have actually loaded it before handing it back to the accused who accidentally discharged it as he was trying to put it into a container.
Prosecution to rely on unlawful and dangerous act manslaughter
The prosecution wished to put the case to the jury on the basis of either unlawful and dangerous act manslaughter or manslaughter by criminal negligence. The case is not being put on the basis that the accused’s actions represented any gesture of violence or threat towards the deceased. The prosecution allege that the shotgun was simply being handled by the accused when it discharged and accept that the discharge was unintentional.
In order to establish that the act or acts of the accused were “unlawful” Mr Beale relies on the fact that the possession of the firearm was, itself, a breach of the Firearms Act 1996. The accused would seem to have been in breach of the following provisions:
· Section 5(1A) which provides:
(1A)A prohibited person must not possess, carry or use a firearm that is not registered.
Penalty:1800 penalty units or 15 years imprisonment.
· Section 7B(1) which provides:
(1)A person must not possess, carry or use a general category handgun that is not registered.
Penalty:For a first offence, 600 penalty units or 7 years imprisonment.
For a second or subsequent offence, 1200 penalty units or 10 years imprisonment.
· Section 132(1) which provides:
(1) A person must not carry or use a firearm if that person is under the influence of intoxicating liquor or a drug.
Penalty:120 penalty units or 2 years imprisonment.
The accused is a prohibited person for the purpose of s 5(1A) of the Firearms Act. However, as the prosecutor acknowledges, there are likely to be good reasons why I would not permit the Crown to conduct its case on that basis.
As I have said, the evidence will not raise any suggestion that the accused man deliberately pointed the firearm at the deceased or tried to intimidate him or assault him on some way. Therefore a question arises to whether the unlawfulness which is created by the provisions of the Firearms Act to which I have just referred is sufficient to establish manslaughter by unlawful and dangerous act.
Counsel’s submissions
In his submissions Mr Beale acknowledged that it is clear on the authorities that the unlawful act required for this form of manslaughter must be a crime but no particular crime is required (such as an assault, although that is often the case) and a statutory crime such as these offences under the Firearms Act satisfy the requirement for unlawfulness. In relation to the offence of possession of an unregistered firearm, the accused is said to be committing a continuing offence commencing with his acquisition of the firearm and culminating in the handling of it leading to its fatal discharge.
Mr Beale submitted that the act which caused the death in this case can be identified as the handling of the firearm and in his submission that handling was unlawful at least by virtue of s 7B(1) of the Firearms Act and thus, was a breach of the criminal law. Further, he submitted that s 7B(1) of the Firearms Act could not be described as a mere “regulatory” offence[7] because proof was required of an intention to possess the firearm. Mr Beale also drew attention to the penalty for an offence against that section. He agreed that beyond that, there was no other unlawfulness. There was nothing about the conduct that was in any separate way unlawful as there would have been in the case of an assault or attempted assault.
[7]See later analysis of R v Pullman (1991) 25 NSWLR 89 per Hunt CJ at CL where this description arises.
In his submissions, Mr Toohey on behalf of the accused argued there was a distinction to be drawn between the unlawfulness of the possession of the firearm and the unlawfulness (or lack of it) of the actual acts of the accused which led to the gun being discharged. He submits that the act to concentrate on, beyond the handling of the firearm, is the pulling of the trigger which was accidental or inadvertent. He submits that the question is whether that act is unlawful and that question is not answered by the “unlawful state of affairs” as he described it, represented by the unlawful possession of the firearm.
Analysis
In order to prove manslaughter by unlawful and dangerous act the prosecution must prove the following elements:
(1)That the death of the deceased was caused by the act or acts of the accused;
(2)That the accused man intended to commit the acts which caused the death – that is that his acts were conscious, voluntary and deliberate;
(3)That the act or acts of the accused which caused the death were unlawful;
(4)That the act or acts of the accused which caused the death were dangerous;
(5)That the act or acts of the accused which caused the death were done without lawful justification or excuse – in other words, they were not done in self-defence.
The first element requiring proof that the act or acts of the accused were the cause of the death of the deceased involves the jury determining what acts the accused committed and whether or not those acts or any of them caused the death of the deceased. The prosecution in this case put the case that the relevant acts were the handling of the firearm by the accused, albeit not in a threatening manner, and that the handling was unlawful because it was a continuation of the offence of unlawfully possessing the firearm. The question is whether or not an act by this accused man which is unlawful only by virtue of the accused’s breach of the Firearms Act is also “unlawful” for the purpose of constituting unlawful and dangerous act manslaughter, as the prosecutor contends.
The authorities
In R v Turner,[8] the accused had shot and killed a man who was trying to steal from his vehicle parked outside his home. The court concluded that if in answer to a charge of unlawful and dangerous act manslaughter an accused person raises by evidence a defence that he had a lawful justification or excuse for his act he is not guilty of manslaughter unless the Crown establishes beyond reasonable doubt that he did not. In the course of the judgment of the Court,[9] their Honours referred to what had been said by the trial judge in his directions to the jury as follows:
“When an act which a person is engaged in is unlawful, then if it is at the same time a dangerous act, that is an act which is likely to injure another person and quite unintentionally he causes the death of that other person by that act, then he has committed the crime of manslaughter. I said an unlawful act and an unlawful act is one done without lawful justification or excuse.”
The Court went on to conclude that:
“As a general proposition it [the trial judge’s direction] is an inadequate definition of an unlawful act to say that it is one done without justification or excuse. The question whether an act is unlawful is to be determined by other criteria.”
[8][1962] VR 30.
[9]Per O’Bryan, Deane and Hudson JJ.
In R v Holzer[10] Smith J observed that:
“In relation to the unlawful dangerous act doctrine, the unlawful act, it seems clear, must consist of a breach of the criminal law.”
[10][1968] VR 481 at 482 – see also R v Lamb [1967] 2 QB 981 at 988.
In R v Haywood[11], a case where the accused had consumed valium and whisky and then tested his firearm marksmanship with fatal consequences, Crockett J, in ruling upon possible verdicts open to the jury, considered both Holzer and Lamb and observed:
The Court of Appeal in R v Lamb, [1967] 2 QB 981; [1967] 2 All ER 1282, took the view that if the act which caused death and which in turn caused the actor to face a charge of manslaughter was not an unlawful act, a verdict of manslaughter could not be sustained. In that case the actor had presented what he believed to be an unloaded revolver in jest at the head of his friend and when he pulled the trigger he believed he was acting quite harmlessly. The fact is that the weapon was loaded and the death of his friend resulted. The Court of Appeal took the view that in those circumstances there was no assault, because there was no intent to commit any assault or battery by the accused against the victim. Without there being some intentional assault there could be no unlawful act. I find it difficult to distinguish that case from any case where there can be no harmful act in the form of an assault and battery inasmuch as what is said to constitute the assault and battery is not intentional because the act is an involuntary act. I think Lamb's Case is authority for the proposition that even in a case of manslaughter by an unlawful and dangerous act there must be a degree of mens rea, and the requirement of mens rea is met by possession of an intention to commit the assault and battery. This was the view of Lamb's Case, which was taken by Smith, J, in this Court in R v Holzer, [1968] VR 481, at p. 482. If there is to be mens rea in a case of manslaughter by an unlawful and dangerous act it seems to me that where the unlawful act is said to be an assault and battery, then there must be an intentional assault and battery, and if an act which is said to constitute the assault and battery in question is an involuntary one then I find it difficult to believe that such an act can sustain a verdict of manslaughter. If the jury are not satisfied that it was a voluntary act in the sense of being an intentional assault and battery, it is my view that the correct verdict would be one of acquittal. (Emphasis added)
[11][1971] VR 755 at 758
I do not take his Honour to be suggesting that it is only when the unlawful act is an assault that unlawful and dangerous act manslaughter is available to the prosecutor. Indeed his Honour seemed to reach a conclusion which supported Mr Beale’s position in this by saying,
In this case the unlawful act is an assault and battery by discharge of a rifle or the firing of a rifle in breach of provisions of the Firearms Act 1958 or both. The act in question, of course, is the pulling of the trigger. I am of opinion that that would have to be an intentional act for there to be any unlawful act in these circumstances. I think that a good deal of support for this analysis is to be found in the observations of the members of the High Court in R v Ryan, [1967] ALR 577. Although the Court there was concerned with the construction of special provisions in the New South Wales legislation, I think that the observations of the members of the Court make it clear that they are of the view that, for a criminal act to be formed, it must always be an act which is shown to be - either by presumption or by evidence - a voluntary act.
In this case, Mr Beale submitted that the evidence concerning the handling of the firearm by the accused and the pulling of the trigger, albeit mistakenly, demonstrates that it was an act which was conscious, voluntary and deliberate.
In Pemble v R,[12] the accused was convicted of murder by shooting, but asserted in the course of the trial that he did not know the rifle which caused the death was loaded and that he intended only to frighten the deceased. He said that he held the rifle pointed in the air and stumbled and the rifle discharged and he had not meant any harm. The verdict of guilty of murder was set aside and in lieu thereof a verdict of guilty of manslaughter was entered.
[12](1971) 124 CLR 107.
The appeal was decided on the basis of the trial judge’s direction to the jury concerning reckless indifference and when that could constitute murder. The court in considering manslaughter as the alternative verdict made some observations about the meaning of unlawfulness in unlawful and dangerous act manslaughter per Barwick CJ, the following:
“What unlawful acts are sufficient for this purpose [that is unlawful and dangerous act manslaughter] are perhaps not yet precisely and fully defined or stated in decisions or in texts: but it may be taken that so far as the view is held that to be relevantly unlawful the act must be in breach of the criminal law.”
His Honour then observed that to point a loaded weapon at another is no doubt unlawful because it constitutes an assault. His Honour said:
“In my opinion, the act of the appellant in so brandishing the rifle was an unlawful act of the kind which would make the subsequent killing manslaughter. In my opinion, at least it constituted an attempt to assault her and was obviously dangerous to the deceased. Such an attempt is a breach of the criminal law. The appellant was at the moment of discharge of the rifle doing an act which was immediately proximate to the assault he intended.”
Mc Tiernan J observed:
It seems clear that in arriving at their verdict the jury found that the accused fired the shot which killed the deceased. Section 75 (1A) of the Police and Police Offences Ordinance 1923 of the Northern Territory provides as follows:
"A person who, without reasonable cause, discharges any firearm--(a) in a public place ... shall be guilty of an offence. Penalty Fifty pounds."
The finding of a verdict of murder involves the conclusion that the accused committed an act, resulting in the death of the deceased, which was punishable under this provision of the Ordinance. It was therefore an unlawful act.
However, a potential complication is raised by the case of R v Pullman[13]. In that case, the New South Wales Court of Criminal Appeal dealt with circumstances where a statutory or regulatory prohibition was relied upon for unlawfulness in a case which concerned the driving of a motor car. The judgment of the Court was delivered by Hunt CJ at CL. The appellant had been found guilty by a District Court jury of one count of manslaughter and two counts of causing grievous bodily harm by unlawful act. The offences arose out of the driving of a motor car by the appellant when he crossed an unbroken centre line on the road forcing an oncoming vehicle to leave the roadway and collide with a motor cycle and another vehicle. The principal issue at trial and on the appeal concerns the nature of the unlawful act which supported the charge of manslaughter and the charges of causing grievous bodily harm. The question was whether a breach of a statutory prohibition in this case could be regarded as unlawful for the purposes of the unlawful and dangerous act manslaughter. The Court concluded that it could not, although it rejected the second submission on behalf of the appellant that where any particular act causing death constituted a breach of the Motor Traffic Regulations it was necessarily excluded as supporting a charge of unlawful and dangerous act manslaughter. Hunt CJ at CL expressed his conclusions as follows[14]:
[13](1991) 25 NSWLR 89 – but see per Simpson J in R v Borkowski [2009] NSWCCA 102 at para 3.
[14]At page 97.
(1) An act which constitutes a breach of some statutory or regulatory
prohibition does not, for that reason alone, constitute an unlawful act
sufficient to found a charge of manslaughter within the category of an
unlawful and dangerous act.(2) Such an act may, however, constitute such an unlawful act if it is
unlawful in itself — that is, unlawful otherwise than by reason of the fact that it amounts to such a breach.
Applying those conclusions to the facts of the present case, I can see no
basis upon which it could be said that the appellant's conduct was unlawful in itself— that is, unlawful otherwise than by reason of the fact that it
amounted to a breach of the Motor Traffic Regulations. There is no
suggestion, for example, that he deliberately crossed the unbroken centre
line in order to frighten the driver of the vehicle travelling in the opposite
direction and thereby to force him to move over and permit the appellant to
pass the vehicle he was attempting to pass. Accordingly, there was no
evidence to support the verdict of guilty on the charge of manslaughter. In
those circumstances, there is no need to consider the validity of the
directions which were in fact given.
On reflection, though the logic of this analysis might seem initially applicable to the case before me, I am persuaded that the reasoning may be at odds with other decided authority by which I am bound and that, in any event, the foundations for unlawfulness relied on in that case are different from this case. The statutory unlawfulness in this case is constituted by a serious criminal offence or offences under the Firearms Act which carry a substantial penalty of imprisonment and requires proof of an intentional possession of a firearm[15]. None of the offences are summary offences. In Pullman the Court was considering a strict liability summary offence contrary to regulations. Whether Pullman is correct or not, it does not compel the same result in this case.
[15]He Kaw Teh v R (1984) 157 CLR 523
In Wilson v R,[16] which was decided after Pullman, the High Court was concerned with unlawful and dangerous act manslaughter and, in particular, the dangerousness of the act and the foresight of risk of injury. The Court concluded that for a person to be guilty of manslaughter by an unlawful and dangerous act, the circumstances must be such that a reasonable person in the accused's position would have realised that he or she was exposing another or others to an appreciable risk of serious injury. It is not sufficient that there was a risk of some harm resulting, albeit not serious harm.
[16](1991) 174 CLR 313
The Court did not embark on an extensive analysis of what conduct would underpin unlawfulness except insofar as authorities were referred to in tracing the history of the development of this form of manslaughter. However to the extent that the High Court dealt with this issue Mr Beale submitted, obviously correctly, that I am bound by it. He placed emphasis on the passage near the commencement of the judgement of Brennan, Deane and Dawson JJ[17] where their Honours said:
There is now no difficulty about what constitutes an unlawful act for the purpose of this offence. An unlawful act is one which is contrary to the criminal law. Criminal negligence in the performance of an act which is otherwise lawful is not an "unlawful act". Where an act of that kind is involved, the case is one of manslaughter by criminal negligence, not manslaughter by an unlawful and dangerous act.
[17]At page 335
In my opinion, it is correct to say that if the act said to constitute unlawfulness for these purposes was not one where the unlawfulness required proof of mens rea, then it would not be a crime that satisfies the test of unlawfulness for the purpose of unlawful and dangerous act manslaughter. On the other hand if it does and can be said to be causative of the death of the deceased then it is.
Conclusion
Therefore in this case, it being open to the jury to conclude that the handling of the firearm by the accused when the fatal incident occurred was the cause of the death of the deceased, it is also open to them to conclude that the handling was an unlawful act by virtue of s 7B(1) or s 132(1) of the Firearms Act 1996 for the purpose of this form of manslaughter. It follows that manslaughter by unlawful dangerous act is open in addition to manslaughter by criminal negligence.
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