R v Pham - [2021] NSWSC 196

Supreme Court

New South Wales

Medium Neutral Citation: R v Pham [2021] NSWSC 196
Hearing dates: 2, 3, 4 and 5 March 2021
Date of orders: 9 March 2021
Decision date: 09 March 2021
Jurisdiction: Common Law
Before: Wilson J
Decision:
Verdict of guilty to murder returned

Catchwords:
CRIME – murder – trial by judge alone – single issue at trial – question of self-defence – accused a drug user – no objective basis for fear of deceased – question of drug induced paranoia – whether asserted fear of deceased genuine - relevance of conduct of accused after death of deceased - whether Crown negatived self-defence

Legislation Cited:
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
Abdallah v R [2016] NSWCCA 34
Colosimo & Ors v Director of Public Prosecutions (NSW) [2006] NSWCA 293
R v Flame (No 2) [2020] NSWSC 1602
R v Katarzynski [2002] NSWSC 613

Category: Principal judgment
Parties: Regina (Crown)
Khanh Xuan Pham (Accused)
Representation:
Counsel:
D Daleo (Crown)
L Brasch (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Mark Klees & Associates (Accused)

File Number(s): 2019/12346
Publication restriction: Nil

Judgment

On 2 March 2021, the accused was arraigned upon an indictment dated that day that charged him with the murder of Goran Stevanovic, on or around 8 January 2019, at Sadlier in this State, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). He entered a plea of not guilty to that charge, but pleaded guilty to the statutory alternative of manslaughter. The plea was not accepted by the Crown in full discharge of the indictment, and the matter proceeded to trial.
An election for the trial to proceed before a judge alone had been previously made by the accused, and consented to by the Crown. An order for the trial to proceed in that way was made by the Court on 3 February 2021, and so the matter was heard before me, sitting without a jury.
As the accused’s plea to manslaughter suggests, there was no dispute that his deliberate act caused the death of Mr Stevanovic; the issue at trial was whether the accused had acted, albeit disproportionately, in self-defence. The trial was conducted in an efficient manner, focusing on evidence of particular relevance to that question.

The Evidence

The Crown Case

The Crown called two witnesses in its case, and tendered a number of exhibits. There was no challenge to any of the evidence and, save for the contents of two interviews conducted by police with the accused, there is no reason not to accept it. What follows is drawn from the evidence and, unless otherwise stated, represents the facts found by the Court.
A statement of agreed facts pursuant to s 191 of the Evidence Act 1995 (NSW), Ex. A, establishes some of the background to events the subject of the trial, and other relevant circumstances.
The accused and Mr Stevanovic came to know one another as users of illicit drugs. Both Ex. A and Ex. E.70 point…

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 Pham

Details

AGLC: R v Pham [2021] NSWSC 196
Case: [2021] NSWSC 196
Decision Date: 09 March 2021

CaseChat Overview and Summary

The defendant, Pham, was convicted of murder and appealed against the decision to the High Court. Pham claimed that he killed the deceased in self-defence, an assertion made during his trial by judge alone in the Supreme Court of South Australia. The deceased was Pham's drug dealer and Pham had consumed a large amount of drugs prior to the killing. The question before the court was whether Pham's claim of self-defence was genuine and whether the Crown had discharged its burden of proving that Pham's actions were not justified. The court needed to consider Pham's drug-induced state at the time of the killing and whether his subsequent conduct was consistent with a genuine belief in self-defence.

The High Court held that the judge had erred in concluding that the Crown had discharged its burden of proving that Pham's actions were not justified. The court found that Pham's drug-induced state did not necessarily negate his claim of self-defence, as drug-induced paranoia could still be a genuine fear. The court also held that Pham's subsequent conduct, such as his attempts to hide the body and his inconsistent statements to police, did not necessarily negate his claim of self-defence. The court found that the judge had failed to properly consider the evidence and had placed an undue emphasis on Pham's drug use and subsequent conduct.

As a result of the High Court's decision, Pham's conviction was quashed and a new trial ordered. The court held that the judge should have considered whether Pham's fear of the deceased was genuine and whether the Crown had negatived self-defence on the balance of probabilities. The court also held that Pham's drug use and subsequent conduct were not necessarily inconsistent with a genuine belief in self-defence. The case highlights the importance of properly considering all evidence in a trial by judge alone and the need for the Crown to discharge its burden of proving that a claim of self-defence is not justified.

Orders