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Supreme Court 9 March 2021

R v Pham

[2021] NSWSC 196

Homicide
CRIME MURDER TRIAL BY JUDGE ALONE SINGLE ISSUE AT TRIAL QUESTION OF SELF DEFENCE

Citation: R v Pham [2021] NSWSC 196
Court: Supreme Court of New South Wales
Date: 9 March 2021
Judge: Wilson J

Background

The accused was charged with the murder of a man who had come to his studio apartment in Sadlier, New South Wales on 8 January 2019 to purchase methylamphetamine and other drugs. The deceased had been acquainted with the accused for only a few weeks through drug transactions. While the deceased was sitting on the accused's bed with his back turned, speaking on his mobile phone, the accused stabbed him in the back with a large kitchen knife.

The deceased fled the apartment but collapsed at the building entrance. The accused followed him and inflicted three further stab wounds. The accused then dragged the deceased's body inside, concealed it in a shower recess, and proceeded to dismember it over the following day or so. The accused also used the deceased's car, attempted to use his mobile phone as collateral for a loan, and sent a deceptive text message to the deceased's mother.

The accused pleaded guilty to manslaughter but not guilty to murder. The Crown did not accept the manslaughter plea in full discharge of the indictment. The case proceeded as a judge-alone trial, with the sole issue being whether the accused had acted in self-defence.

  • Whether the accused held a genuine belief that it was necessary to kill the deceased in order to defend himself.
  • Whether that belief, if held, could be explained as drug-induced paranoia rather than a reasonable response to a real threat.
  • Whether the Crown had disproved self-defence beyond reasonable doubt.
  • What weight to give to the accused's conduct after the killing, including concealment, dismemberment, and use of the deceased's property.

Decision

Wilson J found that there was no objective basis for the accused to fear the deceased. The deceased had made no threats and had his back to the accused when the first blow was struck. Evidence from the accused's mother established that in the weeks before the killing the accused had displayed delusional thinking, including a belief that a neighbour was coming through the wall to kill him and a false claim that he had cancer. Her Honour considered this consistent with drug-induced paranoia rather than any genuine, rational fear of the deceased.

The accused's conduct after the killing was treated as highly relevant to the self-defence question. The accused's immediate efforts to conceal the death, dismember the body, deceive the deceased's family, use the deceased's property, and plan to flee the state were each inconsistent with the actions of a person who believed they had acted lawfully in self-defence. Wilson J identified several possible alternative explanations for the killing, including a drug transaction gone wrong and robbery, noting that the accused had taken the deceased's car and belongings and attempted to convert them to cash.

The content of a police interview in which the accused made statements about wanting to kill paedophiles and rapists, and physical evidence of mutilation, were also considered. Her Honour found these matters inconsistent with a genuine claim of self-defence. The court assessed the entirety of the evidence and concluded that it was not capable of raising a doubt as to whether the Crown had excluded the possibility that the accused held any genuine belief that he needed to kill the deceased to defend himself.

The Crown had therefore disproved the self-defence claim to the criminal standard, and the accused was found guilty of murder.

Orders Made

  • The accused was found guilty of the murder of Goran Stevanovic on or about 8 January 2019 at Sadlier, New South Wales.

Key Takeaways

  • A genuine subjective belief in the need for self-defence is a necessary element of a self-defence claim; where the Crown disproves that belief beyond reasonable doubt, the defence fails entirely.
  • Conduct after a killing, including concealment, body disposal, use of the deceased's property, and deception of the deceased's family, is relevant evidence that a court may consider in assessing whether a self-defence claim is genuine.
  • Drug-induced paranoia may explain an accused's claimed fear of a victim without providing a foundation for self-defence, particularly where there is no objective basis for that fear and the accused's delusional beliefs extended well beyond the circumstances of the killing.
  • In a judge-alone trial, the court drew reasonable inferences from the totality of the evidence, including the accused's post-offence conduct, the absence of any threatening act by the deceased, and the accused's statements in police interview, to conclude that the self-defence claim was not genuine.
  • Where an accused pleads guilty to manslaughter as a statutory alternative but the Crown declines to accept that plea in full discharge of the indictment, the trial proceeds on the murder charge and the accused bears the benefit of the doubt only if the evidence is capable of raising it.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18(1)(a)
- Evidence Act 1995 (NSW), s 191

Cases:
- 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