A group of Vietnamese and Indonesian friends had a big night out in the city, ending up at Cheers nightclub in George St, Sydney in the early hours of the morning. The group were quite drunk and their behaviour began to get disruptive, to the point where the bouncers were asked to remove at least one of them from the premises. Dang went up to the bouncer to try and stop his friend being taken outside, but was pushed away. Dang responded by pulling a knife out and stabbing Abboud Abboud, the bouncer, twice in quick succession.
One of the blows only caused a small cut on Abboud’s arm, but the other penetrated 18cm into his chest, and was fatal. Abboud was also stabbed in the shoulder by someone else in the group who was never identified. A witness with medical training said the blow was stuck with ‘moderate’ force.
Dang was arrested at the scene and taken to the police station where he made a video-recorded interview, admitting to deliberately stabbing Abboud twice. He made it clear he was angry about being pushed, although the attack was very sudden, and not planned. He claimed he found the knife on the street just before going into Cheers.
The interview included the following exchanges:
“Q: What happened then?
A: We went to Cheers. At first I thought there was nothing - no buzz, no fight, no excitement - we wanted to go home… security man, he got into a fight with my friends”
And:
“Q: I’ve been told that after the stabbing you showed this knife to a number of people. What can you tell me about that?
A: I showing the knife?
Q: Yes.
A: No, I didn’t show no - I just pulled a knife like I stop and then I - I was - they - they - they - was scared and I go ‘well I was scared too’ and then - yeah, he goes, ‘let’s go’. So then I go, ‘I’m going to throw this knife away before I get caught’, so…”
He was charged with murder and pleaded not guilty. Although he had admitted the stabbing, at trial his defence was that he did not have the necessary level of intent, or ’state of mind’ that is required for the Crown to prove murder. Dang claimed he was too “drunk and stoned” when the incident happened, having been drinking all night, smoking pot, and had also apparently taken four Rohypnol tablets (strong sleeping pills). He relied on the fact that he was so “drunk and stoned” that he didn’t have time to form any real intent - it was just a reaction.
The Judge commented on Dang’s claim that he took four Rohypnol tablets:
“Either way it is a lot of Rohypnol. Was he shooting off his mouth? Was it a bit of bravado? ‘Look at me. I’m a tough little fellow. I am not out of it; and look how many I have taken’… Is he loading it on and had he loaded it on, this drug taking, to a point where its credibility goes?”
His Honour also commented on the issue of Dang’s intent:
“It would be pretty difficult to resist a conclusion that as he stabbed a man in the chest with a knife then went in 18cm… he would have realised that doing that, he was going to cause serious injury, and would have intended indeed to cause really serious injury to Mr Abboud… As to intent, you may well think that it ordinary circumstances the inference that you intend to cause somebody really serious bodily harm is inevitable if you take a knife out of your coat, stab him in the chest, with a wound that penetrates so deeply it enters the heart itself.”
The Judge commented in relation to Dang’s claim that he found the knife:
“He says he picks up a knife lying on the street, on the footpath. He finds it in the middle of the footpath just shortly before he goes down to Cheers. This is the city of Sydney, the main business area. Does it strike you as credible that he had the great fortune, or as it transpires misfortune, to see the knife lying conveniently on the footpath just before he completes that short walk down to Cheers? You may regard that as you will.”
Dang also called evidence as to his good character, to say that he was not the type of person who would have committed a murder. Character evidence is also relevant to the issue of credibility, i.e. whether to believe him or not.
However the jury believed that at the very least, Dang intended to inflict serious harm upon Abboud, and that was enough to find him guilty of murder.
He appealed his conviction on the grounds that the Judge’s comments to the jury had been inappropriate, and would have influenced the jury to convict Dang.
The Appeal Court looked at all of the Judge’s summing-up to the jury, and found that his Honour had not stepped outside the limits of what a Judge is entitled to say in respect of the evidence he has seen and heard. The Court found that the Judge had always made it clear that it was a matter for the jury to decide whether the circumstances of the case raise reasonable doubt.
The appeal was rejected, and Dang was sentenced to 15 years imprisonment with a non-parole period of 10 years. Dang was released on 26 September 2003.
Showing posts with label intoxication. Show all posts
Showing posts with label intoxication. Show all posts
07 May, 2010
12 March, 2010
A pub fight goes too far...
31-year old David Wright had a relatively unremarkable childhood, although his parents eventually separated and his mother moved up to Queensland. She remarried, but this was short-lived as her new husband became violent towards her. David, who was very close to his mother, helped her move back to Sydney. Not long after she suffered a stroke, and he had been helping take care of her since then.
He left school at the end of year nine and worked as a welder, before moving on to Scanlons Sweets, then Sydney City Council. However in 1991 he was imprisoned for two years and three months after he was convicted for robbery with wounding, after holding up a milk-bar owner in Cabramatta. Apparently the victim grabbed David, and in the process cut himself on the lip and finger.
After his release he was employed in body works, where he had been working part-time under the prison day-release program. He then decided to work as a nurse's aid in a nursing home, and then as a truck-driver for Linfox. An injury to his foot put an end to that and after that David remained unemployed.
He met his first girlfriend Dorothy when he was 14, and they lived together for 17 years, having two children. Although he was a regular pot-smoker, he started using liquid speed when he was 24, and this was when he committed the robbery and was sent to jail. By the time he got out Dorothy had become involved with another man. David tried to get back together with Dorothy, but they fought over the affair and it didn't work out. Dorothy went back to the other man, and is still with him today.
Around this time his mother also suffered her stroke, and it seems both incidents had a big effect on David. He began using heroin but decided to enter a detox program so he could take better care of his mother, but began abusing prescription medications instead. He started spending time with a woman named Petina, but her boyfriend became jealous, thinking the two were having sex. He often threatened David, saying things like "I know where you live". Ultimately the boyfriend made good on his threats and struck David across the face with a crowbar, as well as smashing in his headlights. After this David began to carry a knife for protection.
He began drinking regularly, and on the night of 16 October 1996 was particularly drunk. He was at the Riverwood Inn with some friends, and saw 23-year-old Geoff Compton making a scene. Geoff was drunk, and disrupting several other people in the pub. At about 9:30pm Geoff started arguing with David. It escalated until both left the pub and went to the carpark to have a physical fight. At one point Geoff had David in a headlock and was repeatedly punching him in the head. David pulled out his knife and stabbed at Geoff. Geoff suffered four wounds - two small wounds to the groin and one on his ear, plus a 2cm wound to the heart, which was ultimately fatal. However it was not immediately obvious that Geoff was fatally wounded - people separated the two men and held Geoff over a car bonnet trying to calm him down, while David walked off in another direction.
David had little memory of the incident - he couldn't remember arguing with Geoff inside the pub, but said that as he was leaving Geoff followed him to the door. When they got to the door at the same time, David says he became frightened. He remembers Geoff grabbing him in the headlock and punching him around the jaw and head. Other witnesses agree it was Geoff who started the fight, and that he had been drunkenly harassing other people in the pub all evening. He became quite aggressive towards David, and had been having a go at him all evening, for no apparent reason. Marc Jones tried to reason with Geoff and ended up being abused. Dean Velovich had also taken him aside and tried to reason with him, with no success.
David was interviewed by a psychologist while in custody, and she felt that he had an "exaggerated sense of danger" and a "hypersensitivity" as a result of his earlier assault by Petina's boyfriend. She also felt his prospects were good, as he was now in a stable, loving relationship with a woman named Sarah-Jayne, who he had been living with just before this incident. She remains loyal to him. He was also very concerned about his mother's health, and wanted to be able to care for her. While in custody he was unfortunately assaulted again, and was placed in protective custody.
He pleaded guilty to manslaughter, on the basis of an 'unlawful and dangerous act'. The Judge took his good personal characteristics into account, while of course noting that David's decision to carry (and use) a knife did not go in his favour. He also considered David's history, the fact he was drunk at the time, and that it was clearly a spontaneous response to a situation he was already frightened of.
David Wright was sentenced to seven years imprisonment with a non-parole period of four years. Taking into account the time he had already spent in custody, he was released on 16 March 2003.
07 March, 2010
A Meeting at the Mekong Club
Ngoc Dang was born in 1957 in Saigon, one of a large number of children in a poor family. All the kids went to work from an early age. After the fall of Saigon, he worked on a collective farm for some time, before escaping to a refugee camp in Malaya, and on to Australia. He became a citizen, and was eventually joined here by his family, who lived together in Bossley Park. Dang moved out after his marriage in 1993.
He worked at Streets Icrecream for several years, eventually being retrenched with a large payout in 1997. Following this, he spent most of his time at the Mekong Club in Cabramatta drinking and gambling. On Friday 24 April 1998, he'd been at the Club for a longtime, only leaving briefly to pop home for a meal.
Van Hong also decided to spend his Friday night at the Mekong Club with some friends. He was having a good time, and having a fair bit to drink, particularly as it was a public holiday the next day (Anzac Day). He had already made himself known to security staff at the Club, by wearing a red baseball cap, which they had to ask him to remove on quite a few occasions.
At around 11pm he was sitting with Ngoc Dang and another friend, when they started arguing. Hong ended up punching Dang, who fell backwards and hit his head on the table. Hong then picked Dang up by the hair and pulled him back into his chair. He bought Dang a drink. Things seemed to be OK between the two met.
Hong ended up leaving the Club around 1am with with his friend Tu Phu Le. Le was arguing with Hong, telling him he shouldn't have hit Dang, because Dang was older than Hong. It was a matter of honour and respect. Hong didn't particularly agree with Le's point of view, and they began pushing and shoving each other outside on the footpath of the Club.
Around this time Dang, who had also left the Club, came rushing up to the men holding a pistol. Hong said to him "Fuck your mum. You want to play with me?" Dang raised the pistol and fired four shots, aimed directly at Hong. Three shots hit Hong, two in the head and one in the neck. He died instantly. The fourth shot hit Le in the head, causing what is described as a 'gutter' injury (a long gouge). Le was rushed to hospital and survived.
When the police first arrived there was a lot of confusion, and the people arrested were actually Le's friends who took him to the hospital. As a result, Dang managed to get away. He immediately went down to Melbourne where his sister lived, although she later told police he did not arrive until July. She said he stayed there only briefly, and left his car in her garage.
Based on witness reports police issued a warrant for his arrest. By November Dang found it too hard to hide anymore, and turned himself in with his solicitor at Cabramatta Police station. He did not tell them where the pistol was, and it has never been found. He was charged with the murder of Hong, and the malicious wounding of Le. He eventually pleaded guilty to both charges.
According to Dang he bought the pistol two months before the shooting to protect himself and his family. He claimed they had been threatened, although he did not say by whom. He also said there were drug dealers in the area, and so he felt it was necessary to carry this gun at all times, loaded, including inside the Mekong Club.
Dang's lawyers argued that he regretted the shame he brought to his family, so much so that he has severed all contact with his wife and children. He also felt that he was at risk in jail from friends of Hong's, and requested to be placed in protective custody. Dang told the court that he was not a violent person, but the Judge found this a bit difficult to believe, given that he had taken to arming himself with a loaded weapon at all times, even on social occasions.
Dang's lawyers also arguned that there were a number of mitigating factors in Dang's favour, including the fact that there had some level of provocation by Van Hong on the night, and that the offence was not a premeditated, but rather a hot-blooded response. He had no prior criminal record, had surrendered himself voluntarily (although seven months later) and was facing a particularly harsh sentence if served in protective custody. He was also quite drunk at the time.
Nonetheless the Judge found that the circumstances of the shooting were still extremely serious, particularly his use of a loaded gun in a public place. Further, witnesses described him as only being 'middle drunk', and the Crown urged that this should not be taken into account.
Taking everything into consideration, the Judge sentenced Dang to 16 years imprisonment, with a non-parole period of 12 years for the murder of Van Hong. For the malicious wounding of To Phu Le he was sentenced to three years, to be served at the same time.
He will be released on 3 November 2010.
11 February, 2010
Are opals really bad luck?
Lauri Oinonen was a 62-year-old opal miner from Lightning Ridge. He was good friends with a woman named Donna Wood, and had a good relationship with Donna's grandson Deakin, who also lived in town. But some of his opal had gone missing recently, and he was becoming suspicious that Deakin might have been involved. On Tuesday, Deakin popped in to see Donna, and said he'd heard Pop (Lauri) might be looking for him.
Donna said to him "Well Deakin, you said you went and pinched that opal", and Deakin replied "Yeah, we did."
"You stole that opal, didn't you Deakin"
"Yeah, that's why I thought that Pop was looking for me"
Deakin had been drinking and playing chess with Lauri the day before, but the issue had not come up.
Later that night Donna saw Lauri at her sister Yvonne's place, where he was 'on the turps' (literally - drinking methylated spirits) as well as drinking beer. He'd been drinking all day at another friend's place (Ada Morgan) but said "I must have been fairly drunk at Ada's, because, like, after that I can't remember at all." Later Lauri was chatting to Yvonne's daughter Lisa, who told him about Deakin stealing the opal. She said "Deakin must have pinched the opal from you." He replied "No, he wouldn't do that." She said "Yes, I think so, because he had plenty of money." She said she had seen him with $1,600.
Lauri had no memory of going home, but assumes he took Eddie Morgan home first "because when I got home myself, there was a didgeridoo in the car. I think that must belong to him." When he got home he checked his opal stash, which he kept in a Strepsils tin, and found that there was quite a large stone missing. "Then I realised it must be true what Lisa Bolton has told me, and I find it hard to believe at first, but I have to believe it." He drank more methylated spirits and ruminated on these things "but I don't remember exactly what time I went to sleep." He woke up about five the next morning and made his morning "metho drink", which was a cup of boiling water, coffee, 2 spoons of sugar, and metho. He added more and more metho to the cup, then made himself another one. After that he had run out of coffee, so he made one with lemon concentrate and a lot of sugar.
He decided to go to Deakin and confront him about the opal. "I thought if I take the rifle with me and then ask, he will take me seriously. I didn't want to hurt him, but I wanted him to confess that he took the opal. He said it did not cross his mind that he might hurt him:
"Q: And when did you think about taking the rifle?
A: Just before I went there.
Q: After you had started drinking?
A: Yes
Q: Why did you load the gun?
A: Well, what good is it to take an empty gun? I would have taken a walking stick instead. If I had taken a walking stick with me, it would have been as effective as an empty gun."
It never occurred to him not to load it.
"Q: Didn't you think that taking the gun there loaded and cocked that Deakin might get hurt?
A: To me its safe unless you pull the trigger. What, I can't see what can happen unless somebody pulls the trigger.
Q: Did you put the safety on?
A: No I didn't.
Q: Did you think about putting the safety on?
A: Didn't think about it.
Q: How did you feel physically when you left that morning?
A: I was feeling much better than I was feeling when I woke up."
He put the gun on the backseat of the car.
He drove to Colin Nagy's house on Potch St, where Deakin was staying over with Colin's sister Jenny. Colin was woken at about 6:30am by Laurie telling hm to go wake Deakin up. Lauri said he "went to the door. Only the screen door was closed, the wooden door was open. And I knocked on the screen door and said 'Anyone home?' I did that twice. And then there was no answer. I walked in the lounge room and from there I seen the end of the corridor bedroom door was open and I said 'Colin' a couple of times. Then he turned around and I said 'Where is Deakin?' He said 'Deakin's sleeping in the next room there.' I said 'Can you wake him up and tell him I want to see him outside?' Then he got up and I walked out." Colin went into his sister's room and woke Deakin.
Deakin didn't take long to get up. He came out the front gate close to the car. Laurie said "I opened the back door and took the rifle and went to the front close to him and I pointed the rifle from my hip and said 'You done a dirty trick to me. You stole opal from me.' He said 'No, I never.' I was pretty angry. I did not think about harming him." Deakin moved over near the fence "so that the car was between us" and they were both moving backwards and forwards, on either side of the car. "Then he stooped down and I couldn't see him for a while and I was looking this way and that way, I didn't know which way he was going, and then I seen him over at the car, no, I was actually level with the bonnet part of the car when I seen him running, disappearing behind the corner."
"When I saw him next I just hit - lifted the rifle and put it on my shoulder and pointed to him, to his direction" and the rifle went off.
"Q: Do you know how it went off?
A: No, but I was kind of surprised when it went off.
Q: You told the police that you pulled the trigger.
A: I must have pulled the trigger because otherwise it wouldn't go off."
Lauri said that was what was in his mind when he was talking to the police:
"Q: Did you actually know when you spoke to police that you pulled the trigger?
A: No, but I knew my finger was inside the trigger guard all the time.
Q: Do you know now whether you pulled the trigger?
A: No, I still don't know.
He was asked how his hands were and he replied "oh I was shaking because I got pretty upset when he said 'no, I didn't do it."
After that "I chucked the rifle on the backseat and took off ... I was too scared to go around the back because Colin and Deakin would have been in the house and I didn't think they would have taken it very lightly that I fired a shot."
Colin Nagy was on the toilet when he heard the gunshot. He hopped off and raced outside to see Lauri putting something in the back of his stationwagon and speeding off. He saw Deakin lying on the lawn about 10m from the house, and ran over. Deakin was still breathing. Jenny also came running out, and both tried to give him mouth-to-mouth resuscitation for about five minutes, but he just died in their arms. They rolled him over and saw the gunshot wound in his back.
The post-mortem revealed Deakin would have been 2-3m away from the muzzle of the gun when it discharged. Ballistics experts for both the Crown and Defence tested the weapon and found if the rifle was not cocked, there was no way it could discharge. Similarly, it would not fire if the safety catch was on. It was an old weapon, made in the 1930's and quite a bit of force was required to activate the trigger. It did not fire when the trigger was wriggled around back and forth or side to side, and not when slammed into the shoulder. However it did misfire accidentally on one occasion when it was dropped from a height, and once when it was belted with a hammer.
When Lauri was asked "do you know what happened when the rifle discharged?" he said "no, that is unclear to me."
"Q: Have you any idea how the rifle actually discharged?
A: In my opinion I must have pulled the trigger otherwise it wouldn't discharge.
Q: You don't remember doing that?
A: No.
Q: Did you ever mean to pull the trigger?
A: No
Q: Had your rifle ever accidentally gone off before this time?
A: No.
He was asked about his state of intoxication at the time of the shooting and he said "I was definitely drunk." He said that he knows he is responsible for the death of Deakin.
Donna Wood remembers Lauri coming over early on the Wednesday morning, pretty upset. She knew he'd been drinking a lot of metho in the last six weeks or so, pretty much day and night. The first thing she remembers him saying was "I fired a shot at Deakin. Can you go up there and check him out and see what happened?" Donna's husband Reg told him not to tell lies, or something to that effect, and Lauri said "Its not bullshit, it really happened, go and check him."
Donna said "We jumped into the car, myself, my husband, and we drove up there to where it happened" They left Lauri on their veranda and took his stationwagon. They saw the gun on the back seat. It didn't take long for them to establish what had happened at Potch St. Donna left Lauri's stationwagon there, and got a lift back home. She told Lauri "You killed Deakin. He's dead." Lauri started to cry. Someone got him a beer, and shortly after, the police arrived. Lauri kept saying "Oh I'm sorry, I didn't mean to do it. It wasn't supposed to happen. I'm very sorry... Deakin was like me own grandson." Lauri later said in evidence that he still feels very upset about Deakin's death, and that they had been good friends for five or six years.
Lauri was put on trial for murder. He pleaded not guilty. He agreed he deliberately loaded the cartridge in the rifle, cocked it, and left the safety off, but said he only meant to scare Deakin, and never meant to pull the trigger or hurt Deakin. He called many witnesses to testify to his good character and non-violent nature. Donna Wood gave evidence that in all the time she had known him she'd never seen him violent, and described him as a very honest person. Her husband Reg had known Lauri for 10-15 years and said "he seemed a fairly honest person to me since I had known him."
Reverend Poklea also gave evidence that he had known Lauri since the 60's in Mount Isa, and often asked him to mind their house when he was away. He knew he had difficulty with drinking. When asked if he was a violent man, he said "No, I have never seen him angry. I have never seen him show any - he was always helpful."
The Crown case was that when Deakin managed to break away from the argument and run around the side of the house with his back to Lauri, Lauri lost his chance to confront Deakin any further, at which point he chose to raise the rifle to his shoulder and point it at Deakin. In the Crown's view this couldn't be just "to scare him", as Deakin obviously couldn't see Lauri. The Crown told the jury that Lauri intended to fire the weapon, and reminded them that he had deliberately left the safety catch off. And further, you wouldn't fire a weapon at someone's back unless you meant to hurt them.
Medical experts estimated that Lauri's blood alcohol would have been about 0.4 to 0.45 at the time of the shooting, which is normally the "embalming" level (i.e. you're dead). Since it was clearly self-induced, the jury could not take it into account when deciding whether he accidentally fired the weapon, but they could take it into account when deciding whether he meant to hurt Deakin. (Aah, the technicalities of the law.. basically his drunkenness only matters for what he's thinking, but not what he's doing. Go figure.)
Lauri gave evidence that his drinking problem started before he was 19 years old, but only started drinking methylated spirits a couple of years back, initially to cure his hangovers in the morning. He only started to get drunk on it that year. "Not only metho, but I used, when I was in town, I used to beer or some whisky sometimes and some brandy, but I did not bring any alcohol to my home and later in the evening I would drink metho." He agreed he was drinking it constantly in the weeks leading up to the shooting.
Colin Nagy told the jury he'd known Lauri for a few years, and knew he was an alcoholic, but said he could handle it - even after a lot of drinks he was the same as everyone else, and had often seen him drive a car quite well in that state. Donna Wood also knew he'd been on a metho-drinking binge for a few weeks, and had been drinking various types of alcohol almost constantly. She was quite used to seeing him drunk. She agreed he was drunk on the Wednesday morning at her house, and still later at the police station. She gave the following evidence:
Q: He still appeared drunk to you?
A: He appeared drunk to me.
Q: And distraught?
A: Yes, even more so, all the time.
Donna Wood's husband Reg agreed that Lauri seemed pretty drunk when he arrived on Wednesday morning. However the arresting police officers did not observe him to be drunk, saying that Lauri walked steadily, had no difficulty getting up into the Landcruiser, and understood all the questions and responses. Senior Constable Bowra thought he appeared normal at the station, and was rolling his own cigarettes with ease but said "he may be a little hung over, a little tired."
Nevertheless Constable Thomas stated "When I first saw him there was no sign of intoxication whatsoever, but later at the station, he appeared to be withdrawing from some of the effects of intoxication, in that sometimes he would have the shakes. He was very lethargic in the dock. He appeared to me to be having the DT's." During his official interview when asked about what happened, he replied "I'd rather not talk about that because I'm still half-cut." Later in the morning he began vomiting at the police station, and was treated by paramedics for dehydration, and given anti-nausea treatment. He vomited again later in the afternoon and was then transferred to Walgett Hospital.
Dr Moynihan, an expert in this area, said that for an ordinary person to consume that amount (and type) of alcohol, they would hardly be able to move. "But a person who was used to drinking high levels of alcohol would tolerate that type of drinking without too much trouble and given the drinking history of this gentleman, although his blood concentration I feel to be quite high, he would be intoxicated, but he would be able to tolerate it." He said such a person would know what they were doing. "For example, if you tell someone off which you normally wouldn't do perhaps the alcohol gives you what might be false courage to do things, or Dutch courage. It takes those inhibitions off. So you know what you are doing but its just that you are no longer restrained because the alcohol takes the brakes off." The Dr also noted that vomiting can be a reflex action from emotional trauma or an acute anxious state.
In cross-examination Lauri agreed that apart from actually pulling the trigger he remembered almost every single detail of what happened on the morning of the shooting, and apart from firing the rifle, he knew exactly what he was doing, and that his intoxication did not affect his ability to know what he was doing. He said that when Deakin started running, he was running very fast. He said he lifted the rifle up and pointed it at Deakin's back. He was looking along the barrel and could see it was aimed at Deakin's back. He denied that he deliberately shot Deakin to stop him from running. He said it all happened it a second. "I knew most of the things I was doing but I was drunk and if I had been sober I wouldn't go to see Deakin with the rifle and probably not at all.
The jury returned a verdict of not guilty of murder, but guilty of manslaughter, on the basis that Lauri did not intend to kill or inflict grievous bodily harm, but had committed an "unlawful and dangerous act" i.e, threatening Deakin with a loaded gun. He was sentenced to 11 years prison, with a non-parole period of eight years.
Lauri appealed his sentence, arguing that he should have been treated as if he meant Deakin no harm at all, given all the evidence of his good character, and that the Judge was wrong to state that it was one of the most serious cases of manslaughter. However the Appeal Court agreed with his Honour's assessment, given that Lauri sought Deakin out, primed for a fight, with a loaded weapon which he had deliberately left unsafe.
Lauri also felt that not enough consideration had been given to his personal circumstances, such as his age (62 years) with an almost clean criminal history, in addition to his offer to plead guilty to manslaughter before the trial began. The Appeal Court agreed with this point, and felt that he had demonstrated remorse. Accordingly, they reduced his sentence to nine years with a non-parole period of six years.
Lauri was released on November 5, 2002.
Donna said to him "Well Deakin, you said you went and pinched that opal", and Deakin replied "Yeah, we did."
"You stole that opal, didn't you Deakin"
"Yeah, that's why I thought that Pop was looking for me"
Deakin had been drinking and playing chess with Lauri the day before, but the issue had not come up.
Later that night Donna saw Lauri at her sister Yvonne's place, where he was 'on the turps' (literally - drinking methylated spirits) as well as drinking beer. He'd been drinking all day at another friend's place (Ada Morgan) but said "I must have been fairly drunk at Ada's, because, like, after that I can't remember at all." Later Lauri was chatting to Yvonne's daughter Lisa, who told him about Deakin stealing the opal. She said "Deakin must have pinched the opal from you." He replied "No, he wouldn't do that." She said "Yes, I think so, because he had plenty of money." She said she had seen him with $1,600.
Lauri had no memory of going home, but assumes he took Eddie Morgan home first "because when I got home myself, there was a didgeridoo in the car. I think that must belong to him." When he got home he checked his opal stash, which he kept in a Strepsils tin, and found that there was quite a large stone missing. "Then I realised it must be true what Lisa Bolton has told me, and I find it hard to believe at first, but I have to believe it." He drank more methylated spirits and ruminated on these things "but I don't remember exactly what time I went to sleep." He woke up about five the next morning and made his morning "metho drink", which was a cup of boiling water, coffee, 2 spoons of sugar, and metho. He added more and more metho to the cup, then made himself another one. After that he had run out of coffee, so he made one with lemon concentrate and a lot of sugar.
He decided to go to Deakin and confront him about the opal. "I thought if I take the rifle with me and then ask, he will take me seriously. I didn't want to hurt him, but I wanted him to confess that he took the opal. He said it did not cross his mind that he might hurt him:
"Q: And when did you think about taking the rifle?
A: Just before I went there.
Q: After you had started drinking?
A: Yes
Q: Why did you load the gun?
A: Well, what good is it to take an empty gun? I would have taken a walking stick instead. If I had taken a walking stick with me, it would have been as effective as an empty gun."
It never occurred to him not to load it.
"Q: Didn't you think that taking the gun there loaded and cocked that Deakin might get hurt?
A: To me its safe unless you pull the trigger. What, I can't see what can happen unless somebody pulls the trigger.
Q: Did you put the safety on?
A: No I didn't.
Q: Did you think about putting the safety on?
A: Didn't think about it.
Q: How did you feel physically when you left that morning?
A: I was feeling much better than I was feeling when I woke up."
He put the gun on the backseat of the car.
He drove to Colin Nagy's house on Potch St, where Deakin was staying over with Colin's sister Jenny. Colin was woken at about 6:30am by Laurie telling hm to go wake Deakin up. Lauri said he "went to the door. Only the screen door was closed, the wooden door was open. And I knocked on the screen door and said 'Anyone home?' I did that twice. And then there was no answer. I walked in the lounge room and from there I seen the end of the corridor bedroom door was open and I said 'Colin' a couple of times. Then he turned around and I said 'Where is Deakin?' He said 'Deakin's sleeping in the next room there.' I said 'Can you wake him up and tell him I want to see him outside?' Then he got up and I walked out." Colin went into his sister's room and woke Deakin.
Deakin didn't take long to get up. He came out the front gate close to the car. Laurie said "I opened the back door and took the rifle and went to the front close to him and I pointed the rifle from my hip and said 'You done a dirty trick to me. You stole opal from me.' He said 'No, I never.' I was pretty angry. I did not think about harming him." Deakin moved over near the fence "so that the car was between us" and they were both moving backwards and forwards, on either side of the car. "Then he stooped down and I couldn't see him for a while and I was looking this way and that way, I didn't know which way he was going, and then I seen him over at the car, no, I was actually level with the bonnet part of the car when I seen him running, disappearing behind the corner."
"When I saw him next I just hit - lifted the rifle and put it on my shoulder and pointed to him, to his direction" and the rifle went off.
"Q: Do you know how it went off?
A: No, but I was kind of surprised when it went off.
Q: You told the police that you pulled the trigger.
A: I must have pulled the trigger because otherwise it wouldn't go off."
Lauri said that was what was in his mind when he was talking to the police:
"Q: Did you actually know when you spoke to police that you pulled the trigger?
A: No, but I knew my finger was inside the trigger guard all the time.
Q: Do you know now whether you pulled the trigger?
A: No, I still don't know.
He was asked how his hands were and he replied "oh I was shaking because I got pretty upset when he said 'no, I didn't do it."
After that "I chucked the rifle on the backseat and took off ... I was too scared to go around the back because Colin and Deakin would have been in the house and I didn't think they would have taken it very lightly that I fired a shot."
Colin Nagy was on the toilet when he heard the gunshot. He hopped off and raced outside to see Lauri putting something in the back of his stationwagon and speeding off. He saw Deakin lying on the lawn about 10m from the house, and ran over. Deakin was still breathing. Jenny also came running out, and both tried to give him mouth-to-mouth resuscitation for about five minutes, but he just died in their arms. They rolled him over and saw the gunshot wound in his back.
The post-mortem revealed Deakin would have been 2-3m away from the muzzle of the gun when it discharged. Ballistics experts for both the Crown and Defence tested the weapon and found if the rifle was not cocked, there was no way it could discharge. Similarly, it would not fire if the safety catch was on. It was an old weapon, made in the 1930's and quite a bit of force was required to activate the trigger. It did not fire when the trigger was wriggled around back and forth or side to side, and not when slammed into the shoulder. However it did misfire accidentally on one occasion when it was dropped from a height, and once when it was belted with a hammer.
When Lauri was asked "do you know what happened when the rifle discharged?" he said "no, that is unclear to me."
"Q: Have you any idea how the rifle actually discharged?
A: In my opinion I must have pulled the trigger otherwise it wouldn't discharge.
Q: You don't remember doing that?
A: No.
Q: Did you ever mean to pull the trigger?
A: No
Q: Had your rifle ever accidentally gone off before this time?
A: No.
He was asked about his state of intoxication at the time of the shooting and he said "I was definitely drunk." He said that he knows he is responsible for the death of Deakin.
Donna Wood remembers Lauri coming over early on the Wednesday morning, pretty upset. She knew he'd been drinking a lot of metho in the last six weeks or so, pretty much day and night. The first thing she remembers him saying was "I fired a shot at Deakin. Can you go up there and check him out and see what happened?" Donna's husband Reg told him not to tell lies, or something to that effect, and Lauri said "Its not bullshit, it really happened, go and check him."
Donna said "We jumped into the car, myself, my husband, and we drove up there to where it happened" They left Lauri on their veranda and took his stationwagon. They saw the gun on the back seat. It didn't take long for them to establish what had happened at Potch St. Donna left Lauri's stationwagon there, and got a lift back home. She told Lauri "You killed Deakin. He's dead." Lauri started to cry. Someone got him a beer, and shortly after, the police arrived. Lauri kept saying "Oh I'm sorry, I didn't mean to do it. It wasn't supposed to happen. I'm very sorry... Deakin was like me own grandson." Lauri later said in evidence that he still feels very upset about Deakin's death, and that they had been good friends for five or six years.
Lauri was put on trial for murder. He pleaded not guilty. He agreed he deliberately loaded the cartridge in the rifle, cocked it, and left the safety off, but said he only meant to scare Deakin, and never meant to pull the trigger or hurt Deakin. He called many witnesses to testify to his good character and non-violent nature. Donna Wood gave evidence that in all the time she had known him she'd never seen him violent, and described him as a very honest person. Her husband Reg had known Lauri for 10-15 years and said "he seemed a fairly honest person to me since I had known him."
Reverend Poklea also gave evidence that he had known Lauri since the 60's in Mount Isa, and often asked him to mind their house when he was away. He knew he had difficulty with drinking. When asked if he was a violent man, he said "No, I have never seen him angry. I have never seen him show any - he was always helpful."
The Crown case was that when Deakin managed to break away from the argument and run around the side of the house with his back to Lauri, Lauri lost his chance to confront Deakin any further, at which point he chose to raise the rifle to his shoulder and point it at Deakin. In the Crown's view this couldn't be just "to scare him", as Deakin obviously couldn't see Lauri. The Crown told the jury that Lauri intended to fire the weapon, and reminded them that he had deliberately left the safety catch off. And further, you wouldn't fire a weapon at someone's back unless you meant to hurt them.
Medical experts estimated that Lauri's blood alcohol would have been about 0.4 to 0.45 at the time of the shooting, which is normally the "embalming" level (i.e. you're dead). Since it was clearly self-induced, the jury could not take it into account when deciding whether he accidentally fired the weapon, but they could take it into account when deciding whether he meant to hurt Deakin. (Aah, the technicalities of the law.. basically his drunkenness only matters for what he's thinking, but not what he's doing. Go figure.)
Lauri gave evidence that his drinking problem started before he was 19 years old, but only started drinking methylated spirits a couple of years back, initially to cure his hangovers in the morning. He only started to get drunk on it that year. "Not only metho, but I used, when I was in town, I used to beer or some whisky sometimes and some brandy, but I did not bring any alcohol to my home and later in the evening I would drink metho." He agreed he was drinking it constantly in the weeks leading up to the shooting.
Colin Nagy told the jury he'd known Lauri for a few years, and knew he was an alcoholic, but said he could handle it - even after a lot of drinks he was the same as everyone else, and had often seen him drive a car quite well in that state. Donna Wood also knew he'd been on a metho-drinking binge for a few weeks, and had been drinking various types of alcohol almost constantly. She was quite used to seeing him drunk. She agreed he was drunk on the Wednesday morning at her house, and still later at the police station. She gave the following evidence:
Q: He still appeared drunk to you?
A: He appeared drunk to me.
Q: And distraught?
A: Yes, even more so, all the time.
Donna Wood's husband Reg agreed that Lauri seemed pretty drunk when he arrived on Wednesday morning. However the arresting police officers did not observe him to be drunk, saying that Lauri walked steadily, had no difficulty getting up into the Landcruiser, and understood all the questions and responses. Senior Constable Bowra thought he appeared normal at the station, and was rolling his own cigarettes with ease but said "he may be a little hung over, a little tired."
Nevertheless Constable Thomas stated "When I first saw him there was no sign of intoxication whatsoever, but later at the station, he appeared to be withdrawing from some of the effects of intoxication, in that sometimes he would have the shakes. He was very lethargic in the dock. He appeared to me to be having the DT's." During his official interview when asked about what happened, he replied "I'd rather not talk about that because I'm still half-cut." Later in the morning he began vomiting at the police station, and was treated by paramedics for dehydration, and given anti-nausea treatment. He vomited again later in the afternoon and was then transferred to Walgett Hospital.
Dr Moynihan, an expert in this area, said that for an ordinary person to consume that amount (and type) of alcohol, they would hardly be able to move. "But a person who was used to drinking high levels of alcohol would tolerate that type of drinking without too much trouble and given the drinking history of this gentleman, although his blood concentration I feel to be quite high, he would be intoxicated, but he would be able to tolerate it." He said such a person would know what they were doing. "For example, if you tell someone off which you normally wouldn't do perhaps the alcohol gives you what might be false courage to do things, or Dutch courage. It takes those inhibitions off. So you know what you are doing but its just that you are no longer restrained because the alcohol takes the brakes off." The Dr also noted that vomiting can be a reflex action from emotional trauma or an acute anxious state.
In cross-examination Lauri agreed that apart from actually pulling the trigger he remembered almost every single detail of what happened on the morning of the shooting, and apart from firing the rifle, he knew exactly what he was doing, and that his intoxication did not affect his ability to know what he was doing. He said that when Deakin started running, he was running very fast. He said he lifted the rifle up and pointed it at Deakin's back. He was looking along the barrel and could see it was aimed at Deakin's back. He denied that he deliberately shot Deakin to stop him from running. He said it all happened it a second. "I knew most of the things I was doing but I was drunk and if I had been sober I wouldn't go to see Deakin with the rifle and probably not at all.
The jury returned a verdict of not guilty of murder, but guilty of manslaughter, on the basis that Lauri did not intend to kill or inflict grievous bodily harm, but had committed an "unlawful and dangerous act" i.e, threatening Deakin with a loaded gun. He was sentenced to 11 years prison, with a non-parole period of eight years.
Lauri appealed his sentence, arguing that he should have been treated as if he meant Deakin no harm at all, given all the evidence of his good character, and that the Judge was wrong to state that it was one of the most serious cases of manslaughter. However the Appeal Court agreed with his Honour's assessment, given that Lauri sought Deakin out, primed for a fight, with a loaded weapon which he had deliberately left unsafe.
Lauri also felt that not enough consideration had been given to his personal circumstances, such as his age (62 years) with an almost clean criminal history, in addition to his offer to plead guilty to manslaughter before the trial began. The Appeal Court agreed with this point, and felt that he had demonstrated remorse. Accordingly, they reduced his sentence to nine years with a non-parole period of six years.
Lauri was released on November 5, 2002.
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