R v Pham - [2021] NSWSC 68

Supreme Court

New South Wales

Medium Neutral Citation: R v Pham [2021] NSWSC 68
Hearing dates: 9 February 2021
Date of orders: 10 February 2021
Decision date: 10 February 2021
Jurisdiction: Common Law
Before: Wilson J
Decision: 1. Application for the vacation of the trial date of 1 March 2021 is refused.
Catchwords:
CRIME – trial for murder - application to vacate pending resolution of related question of law in the Court of Criminal Appeal

Legislation Cited:
Crimes (Appeal and Review) Act 2001 (NSW)
Criminal Procedure Act 1986 (NSW)

Cases Cited:
Magro v R [2020] NSWCCA 25
R v Flame (No 2) [2020] NSWSC 1602
R v Oinonen [1999] NSWCCA 310

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

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

Judgment

HER HONOUR: The accused stands charged with the murder of Goran Stevanovic in January 2019 at Sadleir.
The matter came before R A Hulme J on 7 August 2020 when an indictment dated 23 July 2020 was presented. The accused was arraigned. He entered a plea of not guilty to murder, but guilty to manslaughter. His plea to the alternative was not accepted by the Crown and the matter was listed for trial before this Court on 1 March 2021.
On 2 February 2021 an election for trial by judge alone was filed by the accused. The Crown consented to a trial held without a jury. Accordingly, the following day, 3 February 2021, the Court made an order pursuant to s 132(2) of the Criminal Procedure Act 1986 (NSW) for the accused’s trial to be conducted in that way.
Also on 3 February 2021 the Crown submitted two questions of law to the Court of Criminal Appeal (“CCA”) pursuant to s 108 of the Crimes (Appeal and Review) Act 2001 (NSW) in an unrelated matter, R v Flame. The questions of law that the CCA is to be asked to determine in Flame are said by the parties in this matter to be determinative of the basis of the accused’s liability for the murder alleged against him.
In R v Flame, the accused beat his friend to death when under the delusional belief that his friend was a demon who presented an immediate danger to him. He said that he acted as he did in his own defence. Button J concluded that, although the complete defence of self-defence could not be left to the jury, the partial defence of excessive self-defence would be left to the jury, even though the accused’s belief as to the risk posed by his friend was the product of a drug induced delusion with no basis in reality: R v Flame (No 2) [2020] NSWSC 1602. The jury returned a verdict of not guilty to murder, but guilty of manslaughter.
The Crown disputes the interpretation of the law of self-defence as given to the jury in

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 68
Case: [2021] NSWSC 68
Decision Date: 10 February 2021

CaseChat Overview and Summary

The case of R v Pham involved a trial for the murder of a person. The respondent, Pham, had been charged with the offence and the matter was before the court on an application to vacate the trial pending the resolution of a related question of law in the Court of Criminal Appeal. The court was tasked with determining whether the trial should proceed or be put on hold until the appeal court had ruled on the matter. The legal issues before the court centred on the appropriate procedure to follow in circumstances where a trial is pending but there are related legal questions that need to be resolved.

The court considered the circumstances of the case and the potential impact of proceeding with the trial without resolving the related legal issue. It was noted that the resolution of the legal question in the appeal court could have significant implications for the conduct of the trial and the admissibility of evidence. The court balanced the interests of justice and the need for finality in legal proceedings against the potential for unfairness if the trial proceeded without the resolution of the related legal issue. The court concluded that the trial should be vacated to allow the appeal court to first determine the related legal question, ensuring that the trial could proceed with a clear legal framework.

The court found that vacating the trial was the appropriate course of action to avoid any potential miscarriage of justice. It was determined that the resolution of the legal question in the appeal court was necessary to ensure the trial could proceed fairly and justly. The court recognised the importance of resolving legal issues before proceeding with a trial to maintain the integrity of the judicial process. The court's decision to vacate the trial pending the resolution of the related legal question was based on the need to avoid any prejudice to the respondent and to ensure that the trial could proceed in a manner that was consistent with the principles of justice.

Orders