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Supreme Court 10 February 2021

R v Pham

[2021] NSWSC 68

Homicide
CRIME TRIAL FOR MURDER

Citation: R v Pham [2021] NSWSC 68
Court: Supreme Court of New South Wales
Date: 10 February 2021
Judge(s): Wilson J

Background

The accused was charged with the murder of a man at Sadleir in January 2019. When arraigned in August 2020, the accused entered a plea of not guilty to murder but guilty to manslaughter. The Crown declined to accept the lesser plea, and a judge-alone trial was listed for 1 March 2021.

The accused intended to run a partial defence of excessive self-defence at trial. His case, as anticipated by the Crown, was that he formed a genuine but deluded belief (the result of self-administered illicit drugs) that the deceased intended to harm him, and that he acted in self-defence, albeit excessively.

The relevance of this defence was directly connected to an unrelated criminal matter, R v Flame (No 2) [2020] NSWSC 1602. In Flame, Button J had allowed the partial defence of excessive self-defence to go to the jury even where the accused's belief about the risk he faced arose from a drug-induced delusion with no basis in reality. The jury acquitted on murder and convicted of manslaughter. The Crown disputed that interpretation and, on 3 February 2021, referred two questions of law to the Court of Criminal Appeal (CCA) for determination.

  • Whether the trial date should be vacated to await the CCA's resolution of the questions of law referred in R v Flame, given that those questions were said to be determinative of the accused's partial defence of excessive self-defence.
  • Whether the interests of justice, including efficient use of court resources, the risk of duplicated proceedings, and the accused's sentencing position, favoured a delay.

Decision

Both the Crown and the accused jointly applied to vacate the 1 March 2021 trial date. Wilson J nonetheless declined the application. Her Honour acknowledged the parties' shared concern about uncertainty in the law but held that the task of the trial court is to apply the law as it currently stands, with the appellate process available to correct any error.

On the resource efficiency argument, the Court accepted that there would be some duplication if the trial proceeded and the law was later held to have been wrongly applied. However, her Honour gave this limited weight. The trial was to be conducted judge-alone, allowing evidence to be presented largely in written form. Vacating a three-week listing would itself waste court time, with no realistic prospect of filling that gap with other proceedings.

The accused's concern about losing a sentencing discount was addressed directly. Wilson J noted that any discount for a very late plea to the indictment would have been modest in any event, given that Flame was decided after arraignment. More significantly, the accused's willingness to plead guilty to murder in the event the CCA extinguished the partial defence had now been formally signalled to the Court. Her Honour held that this signal, consistent with the principles in R v Oinonen and Magro v R, was sufficient to preserve any discount that would have flowed from a plea entered after the CCA's determination.

Wilson J concluded with a clear statement of principle: the community, the deceased's family, and the accused himself were all entitled to see a serious criminal charge resolved as quickly as possible. A potentially lengthy delay of many months, awaiting an appellate decision that might or might not affect the outcome, was not in the interests of justice.

Orders Made

  • The application by both parties to vacate the trial date of 1 March 2021 was refused.

Key Takeaways

  • The Supreme Court confirmed that the ordinary requirement for criminal trials to proceed expeditiously carries significant weight, and will generally outweigh case management advantages from awaiting an appellate ruling in a related matter.
  • A joint application by both the Crown and the accused to vacate a trial date does not compel the Court to grant that application; the interests of justice remain a matter for independent judicial assessment.
  • Where an accused signals to the Court a willingness to plead guilty contingent on an appellate outcome, that signal may be sufficient to preserve entitlement to a sentencing discount, consistent with the principles in R v Oinonen [1999] NSWCCA 310 and Magro v R [2020] NSWCCA 25, even if the trial proceeds before the appellate decision is handed down.
  • Vacating a multi-week criminal trial listing is itself a waste of court resources; this consideration is a legitimate countervailing factor against adjournment.
  • The risk that a trial may be conducted on a legal basis later found to be erroneous does not, without more, justify delaying the trial indefinitely, given the availability of appellate mechanisms to correct such error.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), s 108
- Criminal Procedure Act 1986 (NSW), s 132(2)

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