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 1. HER HONOUR: The accused stands charged with the murder of Goran Stevanovic in January 2019 at Sadleir. 2. 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. 3. 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. 4. 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. 5. 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. 6. The Crown disputes the interpretation of the law of self-defence as given to the jury in Flame and, by the questions posed of the CCA, asks that court to review his Honour's conclusions in that regard. 7. With that background, the Crown sought to have this matter re-listed and, on 9 February 2021, made an oral application for the vacation of the forthcoming trial date, pending resolution of the questions posed to the CCA in Flame. The accused joined the application. 8. The Crown submits that there will be a question of law in this trial which will be answered by the resolution of the matter referred to the CCA. The questions of law asked of the CCA are of direct relevance to the sole fact in issue at the accused's trial, being whether the accused has available to him the partial defence of excessive self-defence. The Crown understands that the accused is to argue that, when under the influence of self-administered illicit drugs, he formed the genuine if deluded belief that the deceased intended some harm to him, and he acted as he did in his own defence, albeit excessively. 9. It is the Crown's contention that the expenditure of resources involved in the conduct of the accused's trial may be obviated by the resolution of the CCA proceedings in Flame and, on that basis, the Court should delay the accused's trial until after judgment in Flame has been handed down. It is possible that, if the CCA does not uphold Button J's interpretation of the law, the accused will plead guilty to murder, and it will not be necessary to hold a trial at all. 10. If the trial proceeds, and the law applied during the course of it is ultimately held to be wrong by the CCA, appellate proceedings and ultimately a fresh trial will be necessary in the accused's case, with a consequential duplication of resources. 11. The accused also seeks the vacation of his trial on the basis that, if the CCA upholds the first instance decision in Flame, he will with certainty have available a clear partial defence of excessive self-defence. Inferentially, it might even be that the Crown would reconsider its refusal to accept the plea to the lesser alternative already entered by the accused. If the CCA does not uphold Button J's interpretation of the law of self-defence, it is likely that the accused will enter a plea of guilty to murder. That opportunity, and any consequential discount on sentence that may be afforded to him in recognition of the entry of a plea of guilty, would be lost if the matter proceeds to trial prior to the determination of Flame. 12. During the hearing of the matter yesterday I warned the parties that, despite their joint position, I was not minded to vacate the trial to await the determination of appellate proceedings that have only just been filed. The delay in the resolution of the questions asked in Flame could be lengthy and an even longer consequential delay in a murder trial could not be countenanced. Since the parties put their joint position strongly, the Court adjourned the matter until today for judgment, on the basis that inquiries would be made with the CCA in an attempt to gauge the length of time required for the finalisation of Flame. 13. Inquiries have been made by the Court of the CCA List Judge and the Registrar of the CCA as to the likely delay in addressing the matter of Flame. The Court has been advised that the matter is presently listed for call-over on 11 February 2021. It is unclear what will occur at call-over. The CCA is in a position to offer a hearing date as early as 26 February 2021, but it is anticipated that the respondent will not be in a position to proceed with such expedition. He has only recently been served with notice of the Crown's application and, although he is understood to have a solicitor acting for him, there is no indication that counsel has yet been instructed. Preparation of the matter for hearing may take some time. 14. The CCA has only a few dates available to it to hear the matter between 26 February and June 2021, and the likelihood is that it will be a number of months before the matter is heard and judgment delivered. 15. Although the length of time required to resolve the proceedings in Flame can only be the subject of speculation at this stage, I am not prepared to vacate the trial date in this matter to await a judgment from the CCA in the indeterminate future. 16. The accused's trial is to proceed judge alone; by that fact alone the resources required to determine the verdict are much reduced. On the basis that the only issue in dispute is the availability of the partial defence, it should be possible for the parties to present much if not all of the evidence in written format, thus allowing for further economy in the conduct of the trial. 17. The issue of duplication of resources is thus one of limited weight, particularly so when weighed in the balance against the ordinary requirement that criminal trials should be held as quickly as possible. 18. It is also necessary to take into account in that regard the waste of resources involved by the vacation of a criminal trial. This matter has been listed with a 3 week estimate. If the trial is vacated, the Court will have wasted the 3 weeks set aside to hear this matter, since it will not be possible to bring forward any other trial, or even sentence proceedings, to take advantage of the time. That is a consideration which is not insignificant. 19. The accused's concern as to the loss of an opportunity to plead guilty to murder and receive an appropriate reduction on sentence is also of limited weight in my opinion. Firstly, bearing in mind that Flame was decided after the accused was arraigned, any discount on sentence that might flow for a very late plea to the indictment would be limited. Secondly, and more importantly, the accused's willingness to plead guilty to the indictment, should the CCA decision in Flame extinguish the defence he intends to present, has now been signalled to the Court. That should be sufficient to preserve his entitlement to any discount that would have flowed following a plea entered after the determination of Flame, consistent with the principles given in R v Oinonen [1999] NSWCCA 310 and, more recently, Magro v R [2020] NSWCCA 25. 20. This is a criminal trial of a most serious nature. The community is entitled to see criminal charges, and particularly those which relate to the death of a citizen, determined expeditiously. The family and friends of the deceased are also entitled to see the charge resolved as quickly as possible, as is the accused and his family. The general principle that justice must be administered speedily is an important one. 21. Although I appreciate the concern that any uncertainty as to the law gives rise to, the task of the Court is to apply the law as it is. If there is some error, there is a process by which that error can be corrected. In all of the circumstances I am not persuaded that it is in the interests of justice to delay a criminal trial, potentially for many months, awaiting an appellate decision that may or may not have an impact upon this matter. order 1. The application of the parties for the vacation of the trial date of 1 March 2021 is refused. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 March 2022