R v DO, Manh Viet [2001] NSWCCA 19

New South Wales Court of Criminal Appeal

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 Coleman DCJ OFFICER :

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. Nydam v The Queen (1977) VR 430 CASES CITED: 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 away. Mr Nguyen and the appellant told Mr Le not to "muck around with it". The appellant then put the shotgun away in a cupboard in the room. 5 In the early hours of the morning of 9 March 1997 the three men went to McDonalds to get something to eat, and later Mr Le and the appellant went out again to get more beer. One or more of them slept for some period or periods. At 4 or 5 o'clock in the morning Mr Le showed Mr Nguyen some cartridges and how to load the shotgun without actually loading it. The cartridges were put into a drawer in the cupboard. The appellant was with them at this time. 6 At about 8 o'clock in the morning there occurred the discharge which caused the death of Mr Le. The evidence came from Mr Nguyen, from police officers who then attended the scene, and from the videos of a walk-through interview and an ERISP interview later conducted by the police with the appellant. 7 Mr Nguyen was asleep. He woke to what he thought was a firecracker. Mr Le fell on him and he saw a wound under Mr Le's left armpit. The police and ambulance were called, and Mr Nguyen and the appellant sought to staunch the flow of blood from the wound and resuscitate Mr Le, but he was dead. Mr Nguyen saw the appellant put the shotgun back in the cupboard. 8 After the police arrived the appellant took the shotgun from the cupboard and handed it to one of the police, saying "here's the gun, man". He was asked what happened, and he said "I was mucking around with it and it went boom" and that Mr Le was hit in the chest. He said of Mr Nguyen, "Don't get him, he did nothing, he was sleeping". 9 At a later time the walk-through interview was conducted and later again the ERISP interview. What I now refer to in the interviews comes from the transcript provided to the jury as an aide memoire, with an addition brought out in oral evidence to fill one of the gaps in the transcript of the walk-through interview, it having gaps through difficulty with transcription. It was not suggested that seeing the videos would materially add to what appeared in the transcripts. 10 The appellant's initial description in the walk-through interview of what happened was -: "V.3 We were mucking around --