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Court of Criminal Appeal 9 February 2001

R v DO, Manh Viet [2001] NSWCCA 19 revised - 20

[2001] NSWCCA 19

HomicideFirearms & weapons
MANSLAUGHTER CAUSING DEATH BY CRIMINAL NEGLIGENCE SAFETY NOT PROPERLY ON GUN DISCHARGED ANSWER YES.

Citation: R v DO, Manh Viet [2001] NSWCCA 19 revised - 20/03/2001
Court: Court of Criminal Appeal (New South Wales)
Date: 9 February 2001
Judge(s): Giles JA; James J; Hulme J

Background

The appellant was convicted in the District Court of manslaughter by criminal negligence following the death of a friend during the early hours of 9 March 1997 at Marrickville. The three men involved had spent the night drinking alcohol, smoking heroin, and consuming Rohypnol. At some point the appellant retrieved a pump-action shotgun belonging to the deceased, loaded it, and began pointing it at the deceased while operating the safety slide on and off and pulling the trigger.

The shotgun discharged and the bullet struck the deceased in the chest, killing him. In subsequent police interviews, the appellant described repeatedly toggling the safety switch while pulling the trigger to "scare" the deceased, acknowledging that at some point the safety had inadvertently been left in the "off" position when he pulled the trigger.

The appellant was convicted and sentenced to three years' periodic detention with a minimum term of eighteen months. He appealed to the Court of Criminal Appeal against conviction only, not sentence.

  • Whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant's conduct constituted criminal negligence sufficient to support a manslaughter conviction.

Decision

The sole ground of appeal was that the verdict was unreasonable given the totality of the evidence. Giles JA, with whom James J and Hulme J agreed, dismissed this argument comprehensively.

Giles JA found that the appellant was clearly aware of the danger of pointing a loaded firearm at another person. He knew how the safety mechanism operated, had loaded the shotgun himself, and had deliberately moved the safety switch on and off multiple times while pulling the trigger in order to frighten the deceased. The critical point was that, in those circumstances, the risk that the safety would not be properly engaged at the moment of trigger-pull was not merely foreseeable but inevitable.

His Honour reasoned that any reasonable person in the appellant's position would have understood that toggling the safety while repeatedly pulling the trigger demanded the utmost care to ensure the safety was properly engaged each time. The failure to take that care, given the near-certain lethal consequences of any error, amply justified the jury's conclusion. Giles JA described the jury's verdict as "quite unremarkable."

Hulme J expressed the view that deliberately pointing a loaded and cocked shotgun at someone and pulling the trigger was "as gross an example of criminal negligence as I can imagine," adding that the appellant's impaired state through alcohol, heroin, and Rohypnol made the conduct worse. He would have regarded a contrary verdict as perverse.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that manslaughter by criminal negligence can be established where a defendant deliberately points a loaded firearm at another person, repeatedly operates the safety mechanism, and pulls the trigger, even without a specific intention to discharge the weapon.
  • A conviction for manslaughter by criminal negligence does not require proof that the defendant intended to fire the gun. The relevant question is whether the defendant's conduct fell so far below the standard of care required that it warranted criminal sanction.
  • Where the potential consequence of negligent conduct is near-certain death, the standard of care demanded is correspondingly extreme. The court found the need for care in this case "could hardly have been higher."
  • Sufficient evidence existed for the jury to act on the appellant's own admissions in police interview, which described the precise sequence of loading, safety-switching, and trigger-pulling that led to the discharge.
  • Voluntary intoxication through alcohol and illicit substances at the time of the fatal act was noted by the Court as an aggravating feature of the circumstances, rather than a mitigating one.

Legislation and Cases Referenced

Cases:
- Nydam v The Queen (1977) VR 430
- Wilson v The Queen (1992) 174 CLR 313
- M v The Queen (1994) 181 CLR 487

Legislation: No specific legislation was cited in the judgment.