New South Wales Supreme Court CITATION : R v Huy Pham [2007] NSWSC 1313 HEARING DATE(S) : 13 November 2007 JUDGMENT DATE : 15 November 2007 JUDGMENT OF : James J EX TEMPORE JUDGMENT DATE : 15 November 2007 DECISION : Accused not guilty by reason of mental illness CATCHWORDS : CRIMINAL LAW - Mental illness - M'Naghten rules - accused not knowing what he was doing was morally wrong LEGISLATION CITED : Mental Health (Criminal Procedure) Act CASES CITED : M'Naghten Case (1843) 10 Cl&F 200; 8 E.R. 718 Stapleton v The Queen (1952) 86 CLR 358 PARTIES : R v Huy Pham FILE NUMBER(S) : SC 2005/3119 COUNSEL : JN Bowers - Crown JS Manuell - Accused SOLICITORS : Director of Public Prosecutions IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION JAMES J THURSDAY 15 NOVEMBER 2007 2005/3119001-5 REGINA v HUY PHAM JUDGMENT 1 HIS HONOUR: On 13 November 2007 the accused, Huy Pham, was indicted before me in a judge-alone trial on the following charges that: (1) on 4 August 2004 at Cabramatta he murdered Chi Cong Pham (2). on 4 August 2004 at Cabramatta he shot at Joanne Ngo with intent to murder her (3) on 4 August 2004 at Riverwood he threatened to use an offensive weapon, a pistol, with intent to commit an indictable offence (4) on 4 August 2004 he maliciously damaged by fire a pharmacy at Riverwood the property of Joanne Ngo (5) on 4 August 2004 at Cabramatta he used a firearm, a pistol, without being authorised to do so (6) on 4 August at Liverpool he possessed a pistol without being authorised to do so 2 The person named as the victim in the first charge was an uncle of the accused's wife Joanne Ngo, who is the victim named in the second charge. 3 When indicted on these charges the accused pleaded not guilty to all of them. His counsel informed the court that each plea of not guilty was a plea of not guilty by reason of mental illness. 4 Earlier this week, on 12 November, I conducted a judge-alone trial for the purpose of determining the question of the accused's fitness to be tried on the charges and I found that the accused was fit to be tried on the charges. Dr Bruce Westmore, a psychiatrist retained by the Crown, and Dr Olav Nielssen, a psychiatrist retained by the defence, gave evidence that in their opinion the accused was fit to be tried. 5 The evidence in the present trial of the charges against the accused consisted of the Crown brief, which contained three volumes of witness statements and other evidentiary materials, and reports by Dr Westmore retained by the Crown and by Dr Nielssen retained by the defence. There was no issue about the facts of the offences and the statements of the witnesses clearly establish the following facts beyond reasonable doubt. 6 The accused was married to Joanne Ngo in March 1996. After their marriage the accused and Joanne Ngo lived at her parents home at 51 Coventry Street, Cabramatta. There was one child of the marriage, a daughter born in 1997. In October 2003 the accused and Joanne Ngo separated. The accused moved to rented premises at 2/33 Nagle Street, Liverpool. After the separation there was only occasional contact between the accused and Joanne Ngo. 7 On 1 August 2004 the deceased Chi Cong Pham and his sister arrived from Vietnam to spend some time in Australia with their extended family. On the evening of 4 August 2004 Chi Cong Pham and other members of the extended family went to 51 Coventry Street. It was proposed that a large number of family members would go to a restaurant in Cabramatta for a meal. 8 At about 7.30 the persons in the house noticed that something had happened to the power supply in the house. Some lights in the house went out and a number of electrical appliances stopped. An uncle of Joanne Ngo observed that the front door to the house was partly open. He walked towards the front door. When he reached the door, the door was pushed open and the uncle saw the accused standing at the door holding a hand gun with a silencer attached. 9 The accused walked into the dining room of the house. He said in Vietnamese "let's talk". The persons in the dining room could see the gun that the accused was holding and some of them ran towards the back door of the house. Others remained seated at a table in the dining room. The accused pointed the gun at Chi Cong Pham, who was sitting at the table. Chi Cong Pham asked the accused why the accused was pointing the gun at him and he stood up. The accused counted aloud, "five, four, three, two, one" and then fired the gun at Chi Cong Pham. Chi Cong Pham fell to the floor. He said, "I didn't do any harm to you, why did you shoot me?" 10 The accused stood stationary for a few seconds and then walked back and forth a few times. The accused then stepped towards Chi Cong Pham, where he was lying face down on the floor, and fired three or four more shots into Chi Cong Pham's back. The accused then moved to about a metre from Chi Cong Pham and fired one more shot into his body. 11 Joanne Ngo was in a bedroom at 51 Coventry Street, when the accused entered the house. She looked out from the bedroom and saw the accused. She remained in the bedroom. She heard a noise and one of her aunts saying, "Oh, my God, you shot my brother." Joanne Ngo sat on the floor of her bedroom with her back against the door and made an emergency call on her mobile telephone. She could feel the door of the bedroom being forced in against her. 12 The accused entered the bedroom, holding the gun and pointing it at Joanne Ngo. The accused fired two shots, one of which entered Joanne Ngo's chest and the other of which entered her cheek. The accused walked out of the bedroom. 13 The accused left 51 Coventry Street, Cabramatta and drove to Riverwood, where Joanne Ngo, who was a qualified pharmacist, conducted a pharmacy. The accused drove the car at the building, smashing the shop window of the pharmacy. The accused got out of the car holding the gun. He pointed the gun at a person who had approached. This act of the accused gave rise to the third charge in the indictment. The person at whom the gun was pointed took two steps backward and then turned his back and ran. The accused went into the pharmacy and set fire to it, using an accelerant. 14 The accused was arrested at 2/33 Nagle Street, Liverpool on 5 August 2004. At the time of his arrest he told police: "I will tell you everything, you have got everything. On the table is a tape recorder and it has my confession on it. It has everything you want on it." The accused also said: "I understand I have done the wrong thing." When asked by the woman with whom he was living what he had done, the accused said: "Well, I did shoot somebody. I am sorry, I have to pay for it. All I wanted was a divorce. She would not give me one. One year I want. She is having an affair. I want a divorce. I want to get on with my life." 15 The accused told police that he had cut his wrists in an attempt at self-harm. The police took possession of a tape recorder and some brief notes written by the accused to the woman with whom he had been living, to his brothers and sisters and to his child. 16 On the tape recorder was a recording of a fairly long monologue by the accused. Parts of the transcript of what the accused said are as follows: "I don't know how to say this, that, ah, a bit earlier I killed two people. I didn't mean to, but um, when you've got a wife that you give the last twelve years to, at the end she wanted to kick me out, have an affair with her uncle and our families we have the futures. I don't mind that, but if she divorced me before she had the affair, then I did give her two chances in the past to get a divorce. She doesn't want a divorce. I've been separated for one year about and then I attempted suicide in the morning because I can't handle this woman." 17 Later in the monologue the accused made allegations against his mother-in-law and his father-in-law. Later still in the monologue he returned to the allegation that his wife had been having an affair with her uncle. The accused said: "I only got one choice left in front of them which is to shoot the bastard. He's wrecked my family, away from my daughter and my wife, he's the one that divided my family and my wife if she didn't agree to it, she wouldn't have not come back." 18 After he was arrested the accused was taken to a police station where an electronically recorded interview was conducted. At an early stage in the interview the police officer conducting the interview informed the accused that police would help the accused contact a lawyer of his choice, if he wanted legal advice. 19 At question 57 in the interview the accused was asked what had happened the night before at 51 Coventry Street. The accused said that he would like to speak to a lawyer. The interview was suspended, the accused contacted a lawyer, and when the interview was resumed the accused said that he had been advised by the lawyer to say nothing and that he did not wish to say anything. Shortly afterwards the interview was terminated. 20 The witness statements and the other evidentiary materials in the Crown brief clearly establish beyond reasonable doubt all of the elements of all of the offences charged, including that the acts of the accused were done voluntarily and with the intent required for each offence. 21 Section 38 of the Mental Health (Criminal Procedure) Act provides as follows: "38 Special verdict (1) If, in an indictment or information, an act or omission is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness. (2) If a special verdict of not guilty by reason of mental illness is returned at the trial of a person for an offence, the Court may remand the person in custody until the making of an order under section 39 in respect of the person. 22 In the present case, of course, the accused elected to be tried by judge alone and I have the function of determining whether the accused was mentally ill at the time of performing the acts which are the subject of the charges. In determining this question, I am to apply the M'Naghten rules as stated by the House of Lords in M'Naghten's case. (1843) 10 Cl&F 200 at 210; 8 ER 718 at 722 23 In M'Naghten's case the House of Lords said: "We have to submit our opinion to be that the jurors ought to be told in all cases that every man is to be presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that at the time of the committing of the act the party accused was labouring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong." 24 In the present case there is no suggestion that the accused did not know the nature and quality of his acts. However, it was contended that the accused did not know what he was doing was wrong. A person does not know what he is doing is wrong when he does not know that it is wrong according to the ordinary standards of right and wrong adopted by reasonable persons or cannot reason with some moderate degree of calmness as to the wrongfulness of the act. Stapleton v The Queen (1952) 86 CLR 358 at 367. The onus is on the accused to prove on the balance of probabilities the defence of mental illness. 25 Dr Westmore, the psychiatrist retained by the Crown, has considerable experience in forensic psychiatry. He saw the accused on a number of occasions and prepared reports dated 15 March 2005, 6 April 2005, 12 September 2005, 31 January 2006, 28 October 2007 and 9 November 2007. Many parts of the reports were concerned with the question of the accused's fitness to be tried and are not relevant, or not directly relevant, to the present issue. 26 At p 2 of his report of 6 April 2005 Dr Westmore said under the heading "Psychiatric Diagnostic Issues": "Delusional Disorder. This is a provisional diagnosis only. In the absence of any evidence to indicate that the deceased and Mr Pham's wife were in fact having an affair, then this is the most likely psychiatric diagnosis. Mr Pham appears to have fixed firmly held views that his wife was being unfaithful to him. There is a history that he repeatedly and consistently pressed her with allegations about her infidelity and although he stated to her that he had evidence, none was ever produced." 27 At pp 4 and 5 of his report of 28 October 2007, Dr Westmore said: "If I assume that his wife was not in fact having an affair with her uncle, as Mr Pham appears to believe in a very fixed and firm fashion, then it is likely those beliefs which apparently directly led towards his aggressive behaviour towards the deceased and towards his wife is of a delusional type. On the balance of probability this man suffers from either a delusional disorder or a paranoid schizophrenic illness. He is being treated with medication and he has for some time been managed in a psychiatric unit in prison. I believe he suffers from a disease of the mind, specifically a psychotic illness which is likely to be a delusional disorder. He would have been totally deprived of his capacity to know or understand that he ought not to do the act when he attacked his wife and killed her uncle. Mr Pham would be eligible for a mental illness defence to the charge of murder and a mental illness defence to the charge of attempted murder." 28 In his report of 9 November 2007 Dr Westmore, having been provided with further materials, said in part: "There was nothing in the material that I could identify which would contradict the opinion that Mr Pham suffers from a delusional disorder or that as a result of that disorder he acted as he did towards the two victims. At times, patients who have mental illnesses act impulsively towards their victims as a result of delusional beliefs but on other occasions a great deal of time, planning and preparation takes place on behalf of the mentally ill person. This is more likely to occur if the patient and the victim have regular contact or if they have had an extended relationship of an intimate or professional type. This scenario appears to apply in the case of Mr Pham. There is no evidence that the deceased Chi Cong Pham was having an affair with his niece, Joanne Ngo." 29 Without any objection by counsel for the accused, the Crown Prosecutor asked Dr Westmore whether any of a number of factors would cause him to alter the opinion he had expressed in his reports that the accused was suffering from a disease of the mind being a delusional disorder, such that he did not know that what he was doing was wrong. These factors included: (1) the degree of planning manifested in the commission of the offences, including the obtaining of a weapon equipped with a silencer and ammunition and the use of an accelerant to set fire to the pharmacy shop; (2) the conversations the accused had had at the time he was arrested; (3) the contents of the accused's confession recorded on the tape recorder; (4) the accused's attempts at self-harm; (5) the notes written by the accused; (6) the accused's assertion of his rights when he was interviewed by police. 30 Dr Westmore replied that none of these factors would cause him to alter his opinion. Dr Westmore repeated what he had said in his reports, that a person who is mentally ill is capable of engaging in a great deal of planning for the commission of an offence, particularly when the mentally ill person and the proposed victim have been in a relationship. 31 Dr Westmore drew a distinction between a person knowing what he was doing or had done was legally wrong and that he was liable to be punished, and a person knowing that what he was doing was morally wrong as is required by the second limb of the M'Naghten rules. In Dr Westmore's opinion the accused, while he might have known that what he had done was wrong in a legal sense and that he would be punished for what he had done, did not know that what he was doing was morally wrong within the second limb of the M'Naghten rules. 32 In Dr Westmore's opinion, the fact that the accused had asserted his rights when interviewed by the police was quite separate from the issue of whether the accused was mentally ill. 33 Dr Nielssen, the psychiatrist retained by the defence, has, like Dr Westmore, considerable experience in forensic psychiatry. Dr Nielssen saw the accused on a number of occasions and prepared reports dated 1 February 2005, 4 August 2005, 17 May 2007 and 23 October 2007. As in the case of Dr Westmore's reports, many parts of Dr Nielssen's reports were concerned with the question of the accused's fitness to be tried and are not relevant, or not directly relevant, to the present issue. 34 On p 6 of his report of 1 February 2005 Dr Nielssen said under the heading "Opinion": "Mr Pham meets the accepted criteria for the diagnosis of a delusional disorder as he held the fixed false belief that his wife was unfaithful to him for at least a year prior to the alleged offences. He has also experienced periods of significant depression, although his depression in the period after the onset of his delusional belief, appears to have been largely secondary to the belief and its consequences. I believe Mr Pham has the defence of mental illness open to him as his behaviour was the result of a defect of reason in the form of a delusion of jealousy arising from a mental illness that is recognised in law as a disease of the mind. Mr Pham was aware of the nature of his actions but as a result of the interpretation of events, because of his delusional belief, he did not recognise that his actions were morally wrong. Moreover, his depressed state resulted in a morbid view of his situation that prevented him from reasoning with any measure of composure about the possible consequences of his actions." 35 In his report of 17 May 2007 Dr Nielssen said that he confirmed the opinion expressed in his report of 1 February 2005 about the availability of the defence of mental illness. 36 Dr Nielssen had been present in court when Dr Westmore had been questioned by the Crown Prosecutor. Dr Nielssen was in turn questioned by the Crown Prosecutor. Dr Nielssen was referred by the Crown Prosecutor to the high degree of planning in the commission of the offences, the notes written by the accused, the accused's tape recorded confession, the conversation at the time of the accused's arrest and the exercise by the accused of his legal rights when interviewed by the police. 37 Dr Nielssen gave evidence that none of these factors would cause him to alter his opinion that the accused, because of his delusional belief that his wife was having an affair with her uncle, did not realise that what he was doing was morally wrong. 38 The Crown Prosecutor in addressing the court referred to the common view of the two psychiatrists that at the time of committing the offences the accused, because of his delusional disorder, did not know that what he was doing was wrong within the second limb of the M'Naghten rules. 39 The Crown Prosecutor said that he had raised with both psychiatrists matters which, at first sight, might suggest that the accused did indeed know that what he was doing was wrong but both psychiatrists had said that, notwithstanding these matters, they remained of the view that the accused did not know that what he was doing was wrong in the relevant sense. 40 The Crown Prosecutor informed the court that in these circumstances he was not in a position to make submissions against my finding that a defence of mental illness had been established. 41 Counsel for the accused submitted that the onus of proving that at the time of committing the offences the accused had been mentally ill had been discharged. 42 As the tribunal of fact, I am not bound by the opinion of any expert witness or of any number of expert witnesses. However, where the expert witnesses called by the Crown and by the defence agree with each other, I should not reject the expert witnesses' unanimous opinions, unless there is evidence before me which would cast doubt on those opinions. 43 The attention of each of the expert witnesses was directed to matters which might at first sight seem inconsistent with their opinions and each of the expert witnesses said that those matters were not inconsistent with his opinion and did not cause him to alter his opinion. 44 In these circumstances I consider that I should accept the psychiatric evidence. Accordingly, on each of the charges I find the accused not guilty by reason of mental illness. It was common ground that, if I reached this verdict, I should make a further order, which I now make, that the accused be detained in a Correctional Centre or such other facility as the Mental Health Tribunal may determine, until released by due process of law. ********** 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.