Protecting the pot plants

Although Tony Simpson and his wife had separated, they remained on good terms. Simpson had moved in with his mother nearby in Karuah, but was often a visitor to his former home, and saw his kids off to school on a daily basis.

Another reason for his regular visits was to tend to his marijuana plantation in the backyard of his former marital home. His plants were protected with chicken wire, corrugated iron, barbed wire and a home-made electric fence (Simpson was an electrician by trade). To do this, he secured coaxial cable to his back fence with nails, and removed its protective covering at 6cm intervals. This was powered by an extension cord that ran from the house to a shed nearby. Joined to the cord was a cable that ran from the shed to the chicken wire, then to the fence. This cable was also not fully insulated, with two breaks at the joins, about 1cm wide, exposing the wire. This set-up had been in place for around three years, and was switched on and off from inside the house.

Michael Priest knew of Simpson’s backyard plantation, and travelled to Karuah on the night of April 12 1998 with a group of friends, in order to steal Simpson’s plants. Priest went to Simpson’s backyard alone. When he had not returned after some time, his friends left. However they returned the next day, believing Priest had been captured and held by Simpson.

In actual fact, Priest had accidentally come into contact with some of the exposed wiring when trying to get to Simpson’s plants, had been electrocuted and died instantly. Tony Simpson had found Priest the next morning, standing upright with his face on the chicken wire roof. Apparently, in attempting to get at the plants, Priest had inadvertently pulled the chicken wire roof down so that it came into contact with the exposed cable. Simpson panicked, and wrapped Priest’s body in a quilt, dumping it in bushland near Swan Bay. He returned home and dismantled his set-up.

Later that morning, Priest’s friends had returned to find him, and decided to vigorously question Simpson about Priest’s whereabouts. Unfortunately they went to the wrong home, and the occupants immediately called the police. When Simpson saw the police at his neighbour’s house, he decided to approach them and ask to be interviewed. He then admitted his actions, showed the police his plants and the wiring set-up, and took them to the body.

Despite the fact that Priest was killed in the course of trying to steal from Simpson, this was not relevant to the charges against Simpson. Similarly, the fact that Simpson’s plants were illegal was also not relevant to the charges, although he was separately charged with drug offences.

Simpson pleaded guilty to manslaughter on the basis of criminal negligence. He had not intended to kill or seriously harm Priest, but had failed to take reasonable care in that he exposed a person to a high risk of serious harm or death.

At his sentence hearing, evidence was called from an electrical expert about Simpson’s home-made system:

“Q: What do you way about that particular portion of the apparatus, the wiring, the exposed area running across the top of the fence?

A: Potentially very, very dangerous.

Q: Why is that?

A: Well, it is open to a fatality, just by exposing that attached cable, and earthing out with the knees or feet, it can be very fatal.

Q: And that earthing, it would be caused, I suppose, by a person not only going in, but trying to get over the fence?

A: Yes

Q: But trying to get out that way too?

A: Yes, certainly.

Q: In relation to the situation of the wire meshing roofing..

A: Yes?

Q: .. the three- or two-side wire mesh fences and the wire mesh fence at the front, with this cable, for want of a better description, running through, with the two exposed joins, as I understand Simpson’s description, at midpoint a 30mm gap between the height of the wire fencing and the height of the roofing…

A: Yes?

Q: What do you say about that, the danger that it represents?

A: Well, it’s the same as the wire on the back fence - it is open up to a fatality.

Judge: What did you say?

A: It is very, very dangerous and open up to a fatality.

: And if one was standing on the earth and just accidentally put one’s hand around that exposed area of wiring, what would be the effect?

A: Well, it would be a fatality.

Q: Just in relation to, and only going to, the potentiality of the danger in the overall situation, the wood across the top of the back fence, would that provide a degree of insulation between the metal fence and the exposed wires?

A: Depending on the weather, whether it had been raining or not, but yes, quite a degree of insulation, yes.

Q: But once the wood was moist?

A: Moist, a different matter.

Q: Is that because moisture itself is a conductor?

A: That’s right, yes.”

Simpson was also cross-examined about this:

“Q: See, no matter how short a time one received a shock for, a result is dependent on the person’s physical health, isn’t it?

A: Yes.

Q: And your training tells you, you have been warned that can happen very quickly from an electric shock, haven’t you?

A: Yes.”

Simpson argued that the evidence showed that the part Priest had electrocuted himself upon was not deliberately uninsulated, however the Judge was not entirely convinced. Nevertheless, whether the exposure was intentional or not, Simpson as a qualified electrician should have recognised the danger. He had tied the uninsulated wires together himself. In his defence, Simpson claimed that he could not afford a piece of conduit to cover it, however this was rejected by the Judge. The part in question cost only around $11, and Simpson had had three years to fix it.

Simpson also argued that it was not intended that the wire roof would be pulled down so that it contacted the exposed wires, however the Judge also rejected this, saying that Simpson should have been aware of this possibility, given that he was trying to protect his plants from intruders.

Simpson was questioned about this:

“Q: With the power on, and with the wire connecting the house to the back fence, would the wire roof of the enclosure have been live?

A: No.

Q: That was because of the gap between the wire roof and the naked joins.

A: That is correct.

Q: And were those naked joins positioned within the enclosure itself, and not in the ordinary course in contact with the wire perimeter fence?

A: That is correct.

Q: Now if the power were on, and the roof wire were depressed against the naked wire join, that would render the roof live, would it not?

A: That’s right.

Q: Or alternatively, if somebody had inadvertently, by movement of some part of their body caused the naked wire to lift against the roof, that would also render the roof live, yes?

A: That is correct.”

He was then cross examined:

“Q: What this man sees to have done, on your reconstruction, and I am not criticising you for it, is indeed come into contact with the wires in some process of trying to lean in and get at those plants, would you agree with that?

A: That is possible, yes.

Q: Done the very thing that I suggest to you could happen to someone who had to manipulate the roofing and the front fence to get at the plants, correct?

A: Yes, it is possible.

Q: You have, with due respect, drawn a diagram of somebody who is actually leaning in towards where the plants are, much as I am now?

A: Yes.

Q: With his arms extended forward as one would anticipate someone trying to pull plants out?

A: Yes.

Q: And at the same time come into contact wit the ground?

A: Yes.

Q: And we unfortunately know the result, don’t we?

A: Yes.”

The Judge found that this was a very serious case of criminal negligence, however Simpson was co-operative with police, and clearly remorseful about what had happened to Priest. He had a history of drug offences dating back to the 70’s, and pleaded guilt to cultivating five marijuana plants.

Tony Simpson was sentenced to nine years in prison, with a non-parole period of six years. He appealed his sentence, but was unsuccessful.

He was released in July 2005.

Korean clubs

Bae Shang and Chai Chong were business associates, who owned a number of restaurants and bars in the Sydney area, including the Ehwa Karaoke Bar in Kings Cross. They were both Korean Nationals.

In early 1997 a violent fight had taken place at the Beewon Restaurant in Kings Cross, involving another Korean national and known gangster, Duck Kim. Lee Sang, an employee at Beewon, fled the scene, hiding at the Ehwa Karaoke Bar. Concern began to grow among Korean businessmen in Sydney that Korean gangs were causing trouble at businesses owned by Korean nationals.

On January 30th, Duck Kim and Dok Kim arrived at Ehwa. Bae and Chai became worried about their presence. Bae announced “I will teach them a lesson”. Chai contacted Lee Sang and others, asking them to come to Ehwa, because there were gangsters present.

A trio arrived including Lee Sang, and they noticed Duck Kim and Dok Kim sitting outside Ehwa in a car. An attack swiftly followed, with Lee punching Dok twice through the open window of the driver’s seat. The other two dragged Duck out of the car, as Dok and Lee continued to struggle.

Chai and Bae emerged from the garage of Ehwa carrying broken pieces of a hatstand as wooden batons. They joined in the fight, and Duck and Dok were dragged back into the garage by all five. Bae was continually striking Duck with his home-made baton. Others also continued to attack Dok. Bae then stood back while the others dragged the pair upstairs to another room, and continued their assault.

Sang Lee eventually came back down and told Bae to arrange for Duck and Dok to be taken to hospital - they were driven to St Vincents and left there. Both died at the hospital.

The cause of death was found to be multiple blunt force head injuries.

Bae and Chai were arrested shortly afterwards, and Sang Lee, who fled Australia, was eventually arrested in New Zealand. The others involved were not found, having also fled the country.

Bae and Chai were charged with murder and stood trial together. As an alternative to the murder charge, they were also charged with maliciously inflicting grievous bodily harm. Bae acquitted of murder but found guilty of the alternative GBH charge.

Sang Lee similarly pleaded guilty to maliciously inflicting GBH.

Chai was convicted of manslaughter.

The maximum penalty for maliciously inflicting GBH is seven years imprisonment. Bae was sentenced to a total of five years, with a non-parole period of three years and three months.

Sang Lee was sentenced on two years, with a non-parole period of one year and nine months. The Judge found that Bae’s role in the events was much greater that Lee’s, who was only found to be responsible for punching and wrestling with Dok. Sang had also pleaded guilty, and gave evidence against Bae and Chai.

Bae appealed his sentence on the basis that it should have been similar to Lee’s. Bae submitted that Lee had started the fight by punching Dok through the car window. However the Appeal Court felt Bae had really started it by saying he would teach them a lesson and summoning Lee and his friends to the scene.

Baby Keiran

Nicole Wilkinson was 19 years old in 1996, an singe mother of two children. Her youngest son Keiran was born in January. His father Cory Campbell, who was 20 years old and unemployed, had lived with her and an on-and-off relationship for years. At best, she was described as an “inattentive and somewhat disinterested mother”. They seemed to have an arrangement where Cory was responsible for changing Keiran’s nappy and bathing him, while Nicole mainly looked after his older sister.

In late July 1996 Nicole noticed Keiran had a bruise on his ear. She asked Cory if he knew anything about it, and he said he thought Keiran’s sister had probably accidentally kicked him. Not much more was said or thought about it until Saturday August 3rd, when Cory told Nicole he had fallen over in the shower while giving Keiran a bath. Nicole then noticed two other bruises on Keiran over the next few days, which Cory said were due to the fall in the shower, and other ‘accidents’ that were normal for a baby his age.

Again, Nicole didn’t think much of it until Wednesday August 7 when she noticed Keiran was pale and wasn’t behaving normally. She said she wanted to take him to a doctor but Cory told her not to. They argued about this for a while, and in the end she decided not to go. On the next day Keiran seemed fine, apart from being constipated. But when she came home on Thursday 8th, she saw that Keiran was really pale, and he was moaning and groaning. Cory once more told her not to worry about it. The next day Keiran was even worse, and was not eating or drinking - Nicole started to worry that something was seriously wrong.

Nevertheless Nicole and Cory decided to spend the day smoking pot, until about 4pm when Nicole noticed Keiran had actually stopped breathing. She tried to resuscitate him, and called ‘000’. While they were on their way, she told Cory to tell police that the fall in the shower had happened on Wednesday, rather than Saturday.

Keiran could not be resuscitated. The post-mortem revealed that Keiran died of multiple injuries. Apart from several cuts and bruises on his face, his skull was seriously fractured, he had haemorrhages and other serious internal injuries, including a tear in the liver. There were a number of different bruises on the front of his abdomen, and a spiral fracture to his shinbone, which the pathologist estimated to be about 2-3 weeks old.

Both Cory and Nicole were charged with the manslaughter of Kieran. The basis of the charge was criminal negligence, in that they had both failed properly to protect Keiran’s well-being. They both pleaded not guilty and were to be tried together, until Cory made an application for a separate trial, which was granted. He then pleaded guilty to manslaughter.

Nicole maintained her innocence and after a lengthy trial she was found guilty of manslaughter. There was no evidence from Cory, so the Judge was left in a situation where he could only guess how Keiran’s injuries were caused, or by whom. Given that Cory appeared to be the primary care-giver, he came to the conclusion that the child was at risk while he was in Cory’s care. However, his Honour also felt that the signs that something was seriously wrong with Keiran must have been obvious to Nicole, by Thursday afternoon at the latest. She should have also realised it was dangerous to leave Keiran in Cory’s care.

The Judge found that a reasonable person would have taken the child to a hospital or a doctor, and the failure to do so constituted criminal negligence. This neglect was compounded by their choice the next day, to indulge in a substance (pot) that would have made their ability to care for Keiran, or make sensible decisions about his health, even worse.

The Judge felt that Nicole had deliberately ignored the signs and dangers that must have been obvious to her. His Honour concluded that she was worried that she or Cory would get into trouble if they took their son to a hospital, given the obvious cuts, bruises and signs of illness. Basically, she was more concerned with her own interests (and Cory’s) than those of her child.
There was evidence that she had shown some distress to police on the afternoon of her son’s death, however there had been little sign of remorse since then. Although Cory was considered the more guilty of the two, given that even if he had not caused the injuries himself (which was unlikely) he was in a better position to observe the poor state of Keiran‘s health, the Judge found there was a balance of sorts in their level of responsibility.

Ironically, Cory showed more remorse than Nicole at the death of his son, which was also demonstrated in his decision to plead guilty.

Cory was sentenced to six years and six months in jail, with a non-parole period of three years.
Nicole was sentenced to six years and six months, with a non-parole period of three years and six months. She appealed this sentence on the basis that it should have been the same, or less than, Cory’s sentence.

The Appeal Court, despite finding that Cory was likely the more guilty of the two, noted that he was entitled to certain discounts in his sentence, due to his plea of guilty (sparing the cost and time of a trial), expressions of remorse, and had better prospects upon his eventual release to society.

Nicole, on the other hand, had gone to a full trial, displayed little remorse, and had not only seen what a bad condition Keiran was in and done nothing about it, but had also continued to leave him in a situation where it was quite likely these injuries were being caused. Further, she had let herself be talked out of seeking any medical help for her child by Cory. At her trial the defence led evidence from Dr White that Nicole had a dependent personality disorder, leading her to prioritise Cory in fear that he would leave her, however this was rejected as an excuse for her actions.

Nicole’s appeal was dismissed.

Cory Campbell was released on 21 January 2001. Nicole Wilkinson was released on 8 October 2001.

Minding his own business...

TJ and her boyfriend DK were at their friend Peter Wilson’s flat in Taree one Sunday evening in February 1998. They were all in their late teens, and were drinking together for most of the night. At some point in the early hours of the following morning, they all left with the plan of robbing somebody, to get more money for drinking.

Ernest Coles was a small 67-year-old man who was sitting on a park bench, quietly minding his own business, eating chips. The bench was near at ATM.

Wilson brutally attacked Ernest, punching him about ten to fifteen times around his head. Although he was clearly the main offender, DK also took part in kicking Ernest, and TJ joined in. Wilson eventually called ‘000’ and fled the scene with the others in tow.

When she was first spoken to by police, TJ denied any involvement in the fight, but she returned to police a few days later with her mother, volunteering to be interviewed a second time. On that occasion she admitted that she had joined in kicking Ernest, but had later pleaded with Wilson to stop the assault when she saw Ernest was bleeding profusely, and that she had been the one to convince Wilson to call '000'.

Later, she made a third statement, in which she said it was actually DK who did the kicking, and the only reason she’d confessed before was to protect him. However this was not accepted by the Judge, who found that she had actively taken part in the assault.

Ernest was found with his pockets turned out, and Wilson stole his brown leather coat, which he was wearing when he was arrested.

All three were charged with murder. Wilson pleaded guilty to manslaughter on the basis of diminished responsibility. Two doctors agreed that while his attack definitely constituted murder, in that he intended to kill or at least seriously harm Ernest, he suffered from schizophrenia, and was having an active episode of the illness on that particular night, since he had stopped taking his medication.

Wilson was 18 years old at the time, and sentenced to eight years in prison, with a non-parole period of four years.

TJ also pleaded guilty to manslaughter, but on the basis that she had committed an unlawful and dangerous act. This meant she did not intend to kill or inflict grievous bodily harm upon Ernest, but was aware that what she was a part of risked serious harm to Ernest.

TJ was sentenced to six years in prison, with a non-parole period of three years. She appealed the sentence on the grounds it was too severe, given her limited part in the killing, and the fact that she was only 16 at the time. Her defence also argued that the Judge had not taken into account her background, in that she was aboriginal, and from a large family where her father had been violent to her mother. She had been expelled from school at 14, and had been abusing alcohol and pot since she was around 11 or 12 years old, and indeed was drunk at the time.

The Appeal Court found the Judge did take these things into account, as well as the fact she had only a minor criminal record, and had been making improvements in Juvenile Justice since her arrest, studying TAFE course and excelling in arts and crafts. His Honour had also taken into account her good rehabilitation prospects, as well as her plea of guilty, and her assistance to police in (eventually) identifying DK as the third offender.

The Appeal Court pointed out despite all this she was on a good behaviour bond at the time of the offence, imposed for an earlier assault and robbery. Although she claimed to be heavily intoxicated, her record of interview shows she was well aware of what was going on at the time, and knew exactly what she was doing. Also, the value of her so-called assistance to police ended up being quite dubious, as she went back on her promise to give evidence against DK. As a result, all charges against him were dropped.

Furthermore, although Wilson was clearly the main aggressor, TJ took an active part in an attack that resulted in the death of an elderly man who was innocently going about his own business. The Courts are not inclined to take such actions lightly and as it stated “the community is entitled to regard offences of that kind with particular abhorrence”. Wilson himself would have received a more severe sentence had it not been for his mental illness.

TJ’s appeal was rejected. She was released in February 2001, aged 19.

A lesson for Mothers-in-law

At about 5am on the morning of 21 April 1998 Son Tran broke into the home of his estranged wife Minh Pham. He smashed the bedroom window where Minh, their son, and her mother-in-law Sahn Nguyen were sleeping. Sahn grabbed the phone to call the police, but Son managed to wrestle it from her grasp. She then ran into the hallway, but Son followed her and stabbed her repeatedly with a pair of broken scissors. His wife Minh attempted to pull him away from her mother, but she was also stabbed in the back of her left shoulder. Sahn managed to walk back into the main bedroom, but she collapsed there and died shortly after. She had received 25 stab wounds, four of which were lethal.

Son took his wife Minh and their son into the bathroom, and bound up their wrists and ankles. He tied Minh to the toilet, and put his son in the shower recess. He put a jacket over his son’s head, so that he wouldn’t see his grandmother’s body. He then untied Minh and attempted to treat her wound, after which he retied her wrists.

Son stayed in the house for another 12 hours or so, in a state of considerable distress. He thought of killing himself, and his wife. He wrote out a list of possessions that were to be given to his son. Minh eventually said that she would tell the Police she had been the victim of a home invasion. She told him to wipe down all the surfaces to get rid of his fingerprints, and then leave, so she could call the police.

Son did as she asked, and left the house. Minh and her son broke free of their restrains and went straight to a neighbour’s house. Minh was taken to Bankstown hospital to have her wound treated. She spoke to police there, and told them three men had broken into her home and stabbed her mother to death.

However two days later, Minh gave another statement to police, this time saying that her husband Son Tran was the killer. He was arrested shortly afterwards and agreed to be interviewed. He denied any knowledge of the killing, and gave police an alibi. This was quickly disproved.

He was charged with the murder of Sahn Nguyen, and the malicious wounding of Minh Pham.

Son was born in South Vietnam, and was 37 years old at the time of the killing. When he was 14 years old, the North Vietnamese government came to power in the South, and Son was placed in a labour camp. He was there for five years - once he tried to escape, but was caught and spent months confined alone in a small dark room with his legs chained.

He was eventually released from the camp in around 1984, when he met and married Minh Pham. They tried to escape Vietnam, but were arrested. Son spent one year in custody, while Minh was pregnant with their son. After his release, they attempted to escape again, this time on a refugee boat. They were successful, landing in Indonesia, where they were put in a refugee camp. Conditions here were poor, and they were detained for five years, before being returned to Vietnam. These hard years built a strong bond between Son and Minh, as well as their son.

Eventually they were sponsored to come to Australia by Son’s family. They arrived in November 1996 and stayed in Melbourne with Son’s relatives. After three months Minh left for Sydney, taking their son with her. She said she wanted to separate from Son, and stayed with relatives in Bonnyrigg.

After 10 days Son left Melbourne to join his wife and child in Sydney, and they were reconciled. They moved to Cabramatta and worked with a clothing manufacturer. Son worked the steam press, and Minh made garments. They were a hard-working couple.

In 1997 Son and Minh organised for her mother Sahn Nguyen to come to Australia. She arrived in November 1997 and moved into their Cabramatta home.

The clothing factory closed for Christmas, so Son went to Melbourne to visit his family. In that time, a man named Vanny So moved into the Cabramatta home, renting a room as a male boarder. This became a source of tension between Son and Minh when he returned from holidays.

Minh’s mother Sahn also began to undermine her daughter’s marriage, for a variety of reasons. A good friend of Sahn’s gave evidence that Sahn complained that Son did not buy her anything, while Vanny So was showering her with gifts. Vanny would openly take Minh and Sahn out from time to time, without any regard for Son.

Two months after Sahn arrived in Sydney, Minh and Son separated once more. In February 1998 Son moved out of the Cabramatta home and stayed with a friend in Canley Vale. Minh gave evidence that after Son left the house, she would sneak out after her mother and her son were in bed, so that she could meet Son. She said she still loved him, and cried in court that “my husband is the only man I love”.

There was evidence that Son had become depressed since separating from Minh. His productivity at work had declined. He was staying with his employer Doan. Doan returned to Vietnam to get married, and Son became even more lonely: “I just felt that I fell off from the sky to a very deep pit. I was agonising”.

Son would also come to Cabramatta each day, and sometimes slept outside the house. He repeatedly told Minh he loved her very much, and could not live without her. Minh felt torn between her love for her husband, and her loyalty to her mother. She told him to stay where he was for the time being, at least until her mother went back to Vietnam. After that, he could move back in to Cabramatta.

When Son would call in to see Minh at Cabramatta, Sahn would call the police. Sahn also intercepted Son’s phone calls to Minh. On two separate occasions, when Son was visiting, she assaulted him - once with a hammer, and once with the flat side of a metal cleaver.

Son persuaded Minh to leave the Cabramatta house, to minimise contact with Sahn. They moved to a house in Yagoona, but Sahn followed, and decided to move herself into Minh’s bedroom so could sleep with her daughter: “She moved to my bedroom and we stayed in one bedroom and I could not go out to meet my husband any more”.

Sahn persuaded Mihn to take out a restraining order (AVO) to stop Son phoning and visiting her at home: “My mum told me to go the Court to apply for the AVO so my husband would not be able to come see me anymore. I loved my mother but I also loved my husband, and I was in the middle of the two of them, but I loved my mother and I listened to her. Wherever she told me to go, I would go”.

On the 17th April Minh was granted an AVO at Fairfield Local Court. However she continued to contact Son. Vanny So also became a regular visitor to the Yagoona home.

On the night before the killing, Son had stood outside the Yagoona house, and while there he overheard a conversation between Minh and a friend. He heard her say that Vanny had taken her to Parramatta to file for a divorce. From this, Son guessed that his wife had begun a relationship with Vanny.

He left Yagoona, went to a friend’s place, and drank. He drank with his friend Lee and elsewhere in Cabramatta, and then returned to the Yagoona house in the early hours of the 21st. He managed to get into the garage, and tapped on the internal wall between the garage and the bedroom, hoping to wake up Minh. He wanted to talk to her, because he was thinking of going back to Melbourne and killing himself. He could get into the house through the door from the garage, but waited to hear from Minh.

Sahn was the one who heard the tapping, and got up. Son heard her coming, and left the garage. Sahn then picked up the phone in the bedroom to call the police, causing Son to smash the window and break through to grab the phone from her, even though he had already decided to leave.

He said his reason for grabbing the phone was only to stop Sahn calling the police, as he would be in trouble for breaching the AVO. When he followed her down the hallway, it was dark, and she struck him with something. He grabbed whatever it was from Sahn - it turned out to be the broken scissors. Son did not remember anything after that.

There was no evidence that Son had come to Yagoona armed. He had also been drinking, so his level of intoxication was taken into account when considering whether he really intended to kill Sahn. In addition to his depression and suicidal state, there was medical evidence that amnesia is not uncommon where people are in highly emotional or violent situations.

Psychiatrists gave evidence that at the time of the killing, Son had been suffering from a major depressive episode which was very severe. The various events leading up to the killing were considered to be psycho-social stressors, that had all contributed to the state of mind Son found himself in on that morning.

On the evidence, the jury found that Son lost control, as a result of a substantial impairment of mind. This allowed them to return a verdict of not guilty of murder, but guilty of manslaughter, on the basis of ‘diminished responsibility’.

He was sentenced to six years in prison for the manslaughter of Sahn Nguyen, with a non-parole period of three years and six months. He was sentenced to 12 months prison for maliciously wounding Minh Pham - to be served at the same time.

Son Tran was released on 22 October 2001.

A surprise attack

Sun was born in South Korea in 1979. His parents split up when he was very young, and although his father moved to Australia, he remained in Korea with his mother and his younger brother. Sadly, she was not able to care for them both, and the boys ended up in a State institution where conditions were poor, and discipline was harsh. They weren't reunited with their father until 1994 when they made it to Australia to live with him and his new wife. There were some initial rough patches, but Sun ended up getting along well with his new stepmother.

As Sun had a fairly poor grasp of English, he didn't spend much time at school, turning instead to various unskilled jobs. He was a pretty placid guy, but was prone to acting impulsively on occasions, and had picked up a habit of smoking pot.

Late one evening in April 1997 Sun went to his friend Justin's house to buy some pot. Another friend of Justin's, named Kyle, was also at the house. Sun and Kyle hadn't met before, and did not take to each other. It seems they got into some sort of argument while they were there. Kyle left Justin's shortly after, and Sun hung around for a while, smoking with Justin. He didn't think anything more of the fight with Kyle, and certainly had no plans to see him again.

Sun decided to leave before it became light, and headed off towards his car, parked in a street nearby. Little did he know, Kyle had decided to lie in wait for him, still angered by the fight earlier that night. He armed himself with a knife and hid behind a tree. When Sun walked past, Kyle grabbed him and threw him to the ground. Sun quickly pulled out a knife of his own, a small, folding knife, and as Kyle came towards him a second time, he lunged forwards and stabbed him in the neck and head. The neck wound penetrated Kyle's upper spinal cord and he died instantly.

Sun had clearly been taken by surprise at Kyle's ambush, having thought he'd left a while ago. It was still dark, and he was frightened when thrown to the ground. Although the knife was more of the pocket kind than anything else, and wasn't carried for protection or to injure anyone, unfortunately he managed to take a life with it, even in a fight that only lasted a few seconds.

Sun phoned Justin and told him what happened, and that he'd killed Kyle, although he hadn't meant to. Justin rang him back later in the morning and asked Sun to meet him at Wollstonecraft. When he got there, Sun told Justin that a member of the '5T' gang had also been there at the fight, and the gang was now demanding $30,000 from him to keep quiet about the matter. Justin met up with Sun again later on, and gave him $2,000 to help him out.

Of course, the story about the gang was a lie, and led to Sun being charged with 'obtaining money by deception', in addition to the murder charge. It is not clear why he chose to take this tack, but by the time police got hold of him, they agreed that he was well aware of the enormity of what he had done, and was clearly regretted his actions. He said of Kyle "even though he started the scuffle, he did not deserve to die".

Sun went on trial for murder, but pleaded guilty to manslaughter as soon as it was offered by the Crown (on the second day of his trial).

Due to some confusion about Sun's age (he was actually 17 at the time but believed he was 18) he was detained in the adult prison at Long Bay. He found this experience terrifying. He said he was assaulted by prison officers on one occasion, and was constantly in fear of being sexually abused. Things were a bit better after he was moved to Silverwater Jail, and he managed to get some part time prison work as a sweeper.

He was eventually transferred to Kariong Juvenile Justice Centre once his true age was established through Korean records, but things were a lot worse there. Readers may recall rioting that took place at Kariong in March and April of 1999. It doesn't appear that Sun took an active part in the riots, but the environment was still a harsh and frightening one to be in.

At the end of April Sun was moved to Mount Penang Juvenile Justice Centre, and was unfortunately involved in two rather violent incidents. In one he was just trying to stop a younger boy from being assaulted by a group, and ended up with a fractured cheekbone, that required surgery. In the other incident he turned out to be the aggressor, assaulting another resident who was arguing with him.

Nonetheless he was not regarded as a problem by staff, who described him as "compliant and cooperative" and "a thoughtful, mature young man" who was "not a management problem." It appears in the isolated incident of aggression that perhaps two years of incarceration finally got the better of him, and he snapped.

Sun made the most of his time in custody by furthering his education - not only improving his English, but also studying maths and visual arts. He was on track to complete his School Certificate, and also planned to do his HSC.

He was sentenced to seven years in prison, with a non-parole period of four years. He appealed the harshness of this sentence. A review by the Appeal Court found he was a good man, with strong family support, who was unlikely to re-offend. They reduced his sentence to five years and six months, with a non-parole period of two years and nine months.

Sun was released on 13 February 2000.

Death in custody

Yuskel Sancar was in custody in Junee Prison, along with Mustafa Pehlivan. They had become friends during their time together. On the afternoon of May 10, 1994 they were both walking along a prison walkway that connected the Control Centre to Cell Block ‘C’. On the way they passed the doors to the Administration Office, Medical Centre, Education Centre, the Gym, and finally C-Block. They ran into fellow inmates Timothy Orr and Charles Wicks.

There had been some bad blood between Sancar and Orr over their use of heroin inside the prison. Orr had been taunting Sancar, and had also broken the glass window of Sancar’s cell. Orr demanded Sancar give him some of his heroin - Sancar refused, saying he’d already sold it to someone else.

Sancar was carrying half of a pair of scissors, which he had shaped and sharpened into a dagger using the grinder in the Industry Section of the jail. This type of weapon is generally known as a ‘shiv’. Sancar claimed he took the shiv with him when he left his wing that day because he feared he might be at risk from some sort of attack from Orr, who had apparently made threats against his life.

They were outside the Education Centre when a fist fight broke out, Orr taking on Sancar’s friend Pehlivan, and Sancar fighting Wicks. During the skirmish, Sancar pulled out the shiv and stabbed Wicks twice in the chest. The first stuck him near his sternum, penetrating the aorta, and the second hit him on the right side of his chest, penetrating the lung, diaphragm and liver.
Both stab wounds were potentially fatal. The first could not be treated, and the second, if taken alone, would have caused death if not treated.

Wicks staggered along the walkway and collapsed outside the Medical Centre. Despite this convenient location and the swift efforts made to help him, Wicks died within minutes.
Sancar threw the shiv into the Education Centre, and it was found there a short time later by staff.

At trial, Sancar gave the following evidence:
“Q: You knew it was likely to kill him, you stab a man in the chest?
A: I stabbed him in the side.
Q: You stabbed him in the side and then to the front?
A: That’s right.
Q: You knew that it was likely to kill him, didn’t you?
A: No, I did not know it would kill him.
Q: You knew it would cause serious bodily harm to him?
A: Yes, I did.
Q: And you did it nevertheless?
A: That’s right.
Q: And you didn’t really care what injuries the stabbing caused him, did you?
A: No, I never.
Q: Sorry?

A: No, I never.
Q: You thought that this act could cause his death but you were prepared to take the chance?
A: With my life pending, yes.”

Sancar stated that Wicks had thrown the first punch, after which he had to restrain Wicks from grabbing a knife from his own waistband. He said he could see the butt of a knife, so he grabbed hold of Wicks’ to stop him. He said he couldn’t run away because Wicks was in front of him, and that he realised sooner or later, he was going to have to let go of Wicks’ wrist. He pulled out his shiv, then let go of Wicks’ hand. He said Wicks tried to get his knife and did not back off.

When it was suggested to Sancar that there was no need to stab Wicks, he replied “I was going to talk my way out of it, was I?” He insisted that he did not know the stabbing would kill Wicks. He was prepared to risk injuring Wicks in order to save his own life.

Timothy Orr have evidence that he saw Sancar with his head down, doing “rips to the stomach”, or upper-cuts, to Wicks. He said that before Sancar grabbed the shiv from his pants, he was being punched by Wicks and had his head down.

Another prisoner, Henderson, said he saw Wicks strike a couple of glancing blows to Sancar, who then responded with “a couple of hooked sort of punches” in a round-arm style to Wicks’ upper right-hand side. He then noticed Wicks was bleeding on the upper right side. Henderson didn’t see any weapons.

Prisoner Evans gave similar evidence, although he saw something that looked like a knife in Sancar’s hand. Four other inmates said that both Orr and Wicks had knives, and they were going to get Sancar. One said that after the stabbing he saw Orr throw two knives down a drain in the showers. Mark Van Ryswick (now deceased) made a statement at the time that he knew of threats by Orr and Wicks to kill Sancar.

Sancar stood trial on a charge of murder. His first jury was unable to agree on a verdict, and a second trial commenced. Sancar claimed self-defence, forcing the Crown to prove beyond reasonable doubt that he had not acted in self defence and that his reaction was grossly out of proportion to the apparent threat.

There was no denying that Sancar intended to cause Wicks serious harm - he had admitted as much in his evidence. His justification was that Wicks was going to stab him first.

The defence submitted that the evidence was so unsatisfactory, particularly from the fellow prisoners who all had something to gain for themselves by assisting the authorities, that the jury could not be satisfied beyond reasonable doubt that the Crown had proved its case, and therefore must acquit.

Towards the end of the three-week trial, the defence asked the Judge to tell the jury that if they were not satisfied that Sancar had acted in self-defence, then they could convict him of manslaughter instead of murder. The manslaughter would be on the basis of an ‘unlawful and dangerous act’. They relied on the evidence of Orr, that Sancar had his head down when he was delivering his blows, and therefore did not intend serious harm.

Quite bizarrely, the defence was forced to admit that in asking the jury to convict Sancar of manslaughter, they were actually asking the jury to disbelieve their own client’s evidence, given under oath, and instead accept that Sancar did not infact intend any serious harm to Wicks. Quite a stretch.

Further, the Crown had not actually charged Sancar with manslaughter as an alternative to murder. The Judge refused to put the manslaughter option to the jury.

The jury were sent out to consider their verdict. After a short time they returned with a note to the Judge saying they were having difficulty reaching a unanimous verdict. Given that they had only been deliberating for a very short time, the Judge asked them to go back and discuss it further, and see if they could agree. They jury eventually returned a guilty verdict.

Sancar immediately appealed the verdict, stating the Judge was wrong not to leave manslaughter to the jury as an alternative, and his Honour‘s encouragement of the jury to re-think their decision and come back with a unanimous verdict made the result unfair.

Regarding the verdict, the Judge gave what was known as a ‘Black‘ direction, named after an earlier case. It was not an uncommon course of action, in circumstances where the Judge felt that the time the jury had taken was quite short, as well as other factors. The standard direction is phrased in a way that gives no suggestion of which verdict would be preferred, or that they are obliged to negotiate, or “thrash it out” until they reach a unanimous decision. It merely asks them to consider each other’s views and opinions for a little longer and have a look at the evidence once more. The Judge usually points out that most juries are eventually able to reach a decision, and that they are under no particular time constraint.

The Appeal Court felt there was nothing wrong with the Judge’s actions, and rejected this argument.

With respect to manslaughter, the Appeal Court felt the defence situation was “at the least incongruous”. Not only had Sancar given evidence of his intent to seriously harm Wicks (and was prepared to take the risk he would kill Wicks), but if the defence thought there were facts that supported manslaughter, it should have been raised with the Crown well before the trial. The Court felt that the evidence was all one way. There was simply no evidence, including Orr’s, of the stabbing being unintended.

The High Court had made it clear that where self-defence cannot be established, any killing with intent to kill or inflict serious harm will be murder. The only exception is where there is some other factor, such as provocation, that would justify reducing the charge to manslaughter. The Appeal Court found that in this case there was no such factor, and that the defence were really seeking what is often called a “compassionate verdict”.

The Court saw no grounds for such a “half-way house verdict”, and rejected this ground of appeal also. Sancar remains in custody.

"I'm going to be your nightmare" - Part II

Back Together
It appears the John and Frances got back together not long after the AVO was made, although its not clear exactly when. Frances told her friend Natasha Skiadopoulos she was seeing John again, and asked her to act as a go-between so they could made plans. She saw her doctor for the morning-after pill in December. Later she told Natasha that John was still grabbing her and hitting her, and that she wanted to break up with him but was finding it hard to do so.

They went together to Monica Kollar's 21st in late January, but the next week she told Monica she was confused - sometimes John was angry with her, and sometimes he was OK. Three weeks later they went to Bondi with Monica and her fiancé, but John was angry, demanding Frances go home with him in his car. However three weeks after that the four all went to Manly together, and the couple were affectionate with each other. This was about three weeks before Frances died.

In February Frances told Patricia she was giving the relationship another go, but did not tell Santo. Patricia found cards from John under Frances's bed - a 21st birthday card (Frances turned 21 on January 9th) and a Valentine's Day card. Both were from John. Frances also gave John a Valentine's card which spoke of reigniting "our flame which was once burning quite strongly" and "it will take time for our love to become as strong as it was earlier". It concluded "I don't want any abuse like was previously experienced. I want the old Johnny, the one I had when we first met". The pair were seen cuddling and embracing at Natasha's 21st on 18th February, and two days later Frances again saw her doctor for the morning-after pill.

John's workmates said Frances would phone him about once a day, but these calls stopped about two weeks before she died. Around this time Frances told Patricia she was thinking of ending the relationship because she just could not forget all the things that had happened in the past.

Bassam Radwan and his girlfriend Zahia saw John waiting for Frances at Burwood station. He gave them a lift home, and drove past Frances's bus stop, saying "she mustn't be here or she must have gone home already. Later he told Bassam "Don't think I've forgotten, I am just thinking for the moment. I'm only just sleeping with her... Don't think I've forgotten about it, I'm still going to do it... If anyone says anything or asks you questions, just deny everything. Deny everything. If any police ask you anything, deny anything that happened". John denied these conversations ever took place.

Another friend of John's, Manolis Kasdaglis said that in January 1995 John told him "something about humiliating her and stuff, you know, embarrassing her and things like that". In cross-examination, it was put to John that he also told Manolis that he would get Frances back or make life hell for her. He replied "I think at that stage, on the spur of the moment, I was upset" and when asked if he said those things, he replied "not exactly in those words but I said I am embarrassed or something like that". He also said it was back in November 1994, at the time of the AVO.

At Jadranka Vulic's 21st on March 18 the couple seemed happy, cuddling and talking to one another, and were basically together the whole evening. But a week later Frances phoned Jadranka and said John was harassing her at Uni, and "he had hit her once repeatedly".

The arrangement to meet
Frances received a call from John on the evening of 28 March. Her 15-year-old sister Antonella, who shared a room with Frances, overheard her saying “I don’t want to meet you… or else what? why are you speaking to me this way… OK I‘ll meet you tomorrow afternoon after Uni. I will meet you at the station. I will bring the card but make sure you bring the bag“. Antonella did not know at that stage that Frances was seeing John again, but said she sounded “sort of scared“ like she used to when talking to John. She said she told her mother she “thought she was speaking to John”.

Antonella was cross-examined as to why she didn’t include much of this in her initial statement to police. In Santo’s statement he said that Antonella told him the next day that Frances had been arguing on the phone about meeting someone the next day after Uni, but she “didn’t take much notice because she didn’t think it was John on the other end of the phone”. She answered “not sure” to most of the cross-examination, which was regarded as “unimpressive”. It was also established that she was doing school work at the time, and had the TV on in the background.

Frances then told her mother Patricia that she and John had agreed to break up but remain friends, and that they were going to meet the following afternoon after Uni so they could return their things to each other. Frances said she wouldn’t drive to Uni, and would call home from Strathfield station once she was finished so that Santo could come and pick her up. She thought this would be around 6pm.

The next day Frances went to Uni with Rima. Towards the end of the day Rima offered her a lift home, but she said she was going to visit a sick relative. There was no evidence of any sick relative, but Frances had not told Rima she and John were seeing each other again, as Rima had made her dislike of John very clear. Frances left around 4:10pm to catch the bus to Strathfield station. When her parents had not heard from her by 8pm, they went to the police and told them of their fears, but nothing about Frances' arrangement to meet John.

Constable Hall rang John's home and told him "Frances Tizzone has not come home and her parents are worried about her, have you seen her? He said "no, I'm not allowed to see her, she took out an order".
"Where have you been this afternoon?"
"I came home from work and have been here all the time".
"What time did you come home from work?"
"About five p.m."
Constable Hall was cross-examined about this at trial, and maintained John definitely said 5pm. Her notes confirmed this.

At about 10pm Patricia rang John and said “are you sure you haven‘t seen or heard from Frances all day?”, and he said No. He said the last time he had seen her was in December, except for once at a party.

There were also major difficulties with Patricia’s evidence. She was cross-examined as to why she did not say anything to John about their proposed meeting - she replied that she wanted him to tell her himself. In evidence she said “well I asked him about three times if he had seen her or knew where she was and he told me he had nothing to do with her and hadn’t seen her since December and I knew that wasn’t true.. Why should I [ask him] if he wasn’t going to admit it to me. Why should I tell him that I knew.”

She was also cross-examined as to why she didn’t tell Constable Hall about the planned meeting, and her answers were “particularly unconvincing“. She said “well, if I had known what had happened to her, I would have… At the time I thought she had gone and met him and they’d lost track of time and then she would be home”.

She had also told police that she did not know how Frances was getting home, which seemed strange given the arrangement to pick her up at Strathfield station after she called. Patricia’s evidence was at odds with Santo’s statement - he said that Patricia told him she had rung Rima and been told she would be late, and be home around 7-7:30pm.

Police came to the Tizzone’s house later that night, and went to Macquarie Uni the next day to speak with her friends. Again no mention was made by the family of the arranged meeting. Later on the 30th police went to the Serratore house, but John wasn’t home. He was asked to contact police, and later that evening he took part in a recorded interview.

He made several statements that were later proved to be untrue. He said that since November 1994 he had only spoken to and seen Frances a few times. He said he had last seen her at Jadranka’s party two weeks before. He denied there had been any sexual relationship since the AVO. At trial he said his reason for lying was to avoid incriminating himself for breaching the AVO. He denied he had anything to do with Frances’ death and also denied most of the violence during their relationship. Police placed him under surveillance from March 30th.

Leaving work early
John said that on the 29th he left work at 4:50pm and went straight home, arriving at about 5:25pm, and did not go out again. He claimed he drove his Toyota Corolla that day and when he got home he parked it beside the Honda CRX. He had a shower and read the paper. His sister arrived home at about 5:45pm. He denied having telephoned Frances on the 28th and arranging to meet her.

His employer at John O’Donnell Customs Agency in East Botany said he had allowed John to leave early one day that week, at about 3:50-4pm, but could not remember which day. He recalled John coming to work upset on Friday 31st, saying his girlfriend had been kidnapped and the police thought he’d done it. John said he hadn’t spoken to Frances for a couple of days. He thought the police were following him. Mr O’Donnell sent him home that morning.

Another employee’s husband, Damien Bower, who was there to help with some furniture at the office, recalled that he went there around 3:15pm on Wednesday 29th March and saw John leave around 3:45-4pm. He was able to recall the specific day because he’d been to hospital (the pathology department at HMAS Penguin) earlier that day. He was seen by Dr Gray who took his blood, and specifically recalled Dr Gray was shaking. Dr Gray was later found slumped at his desk, having suffered a stroke, and died some weeks later.

Damien also remembered he and his wife Sally were annoyed that John left early that day, because that meant they could not leave early. He was vigorously cross-examined on the basis of conflicting medical records but did not vary his evidence.

Nurse Cavanagh, manager of the HMAS Penguin pathology department, was called to clarify whether Damien’s blood sample was taken on the 29th or the 30th, and also cross-examined extensively:

“Q: Either this sample was taken late on 29 March, namely 4 or 5 o’clock or thereabouts, then refrigerated in the hospital, is that right?
A: Yes, that’s true.
Q: Or, alternatively, and much more probably, the blood was drawn in pathology between 7:30 and 8:30am on 30 March. That’s right, is it not?
A: Yes, but you also have to take into account that that day was an abnormal day.
Q: Why are you insisting about the possibility or likelihood or whatever that this blood was drawn on 29 March? Have you spoken to police subsequently to giving your statement?
A: No, I’m not insisting that the blood was drawn on 29 March. I am saying that I do not know what day the blood was drawn because the person who took the blood did not write the date and time they took the blood. That is quite clear.
Q: So the overwhelming probability is that Mr Bower was at HMAS Penguin on 30 March, is that right?
A: Yes, he was.
Q: And the overwhelming probability is that he was not at HMAS Penguin on 29 March 1995, is it no?
A: Yes.
Q: And that he had two days leave from 28 March to 30 March?
A: Yes.
Q: And all the records indicate 30 March and 28 March, do they not?
A: That’s true.
Q: So why do you struggle with the proposition that the overwhelming probability from these records is that the blood was drawn in the Pathology Department on HMAS Penguin on 30 March 1995? What’s your problem with that proposition?
A: I don’t have a great problem with it except I do not have proof that it was drawn then.
Q: What more proof do you need? Every document you have seen refers to 28 March or 30 March. What more proof do you want?
A: I want the proof of someone having written on the form that they actually took the blood and what time and date they took it. Other than that we cannot say.
Q: I see, even though every piece of paper talks about 28 March and 30 March, you’re saying you need a document from somebody to say, ‘I drew blood from Mr Bower on 30 March at X time’, is that right?
A: Usually the collector would say, ‘Collected by so-and-so at 0800 on 30 March’.
Q: Presumably if the blood was drawn on 29 March, such a document would have been in existence, is that right?
A: Yes, they would have written it on the request form but not necessarily because people don’t conform to that requirement. That’s the problem. That’s the whole problem.”

Danielle Seidl, another employee, was asked what time John finished work that week, and said “no I am not a hundred percent sure but I know on the Wednesday that he and Damien was in the office, he (Damien) was quite ill and I remember him wanting his wife to come home early, and John [O’Donnell] let John Serratore go home early, but I can’t remember what time of the day it was”.

Luke Yatris, a friend of John’s, said he phoned him at home at about 6:30pm on the 29th but Mrs Serratore said he was not home. John and his mother both gave evidence that he was in fact home when Luke called, but he did not want to speak to Luke, so he told his mother to tell him he was not home.

John denied leaving work early on the 29th. He said the day he left early was actually Thursday 30th, after his sister telephoned and said the police wanted to speak to him. He left about 4pm. His sister Barbara and his parents generally supported his evidence. He maintained that he arrived home about 5:30pm on the Wednesday, and that he had seen his neighbours Sam Vitaliti and Vince Mazzotta in the street as he pulled in. Rather suspiciously, Vitaliti and Mazzotta seemed to have separate but virtually identical conversations with him. They also gave almost identical evidence that they had watched the start of the 5pm news on Channel 10 and had both come outside after about 10-15 minutes to watch their respective children play. The Judge found this to be a “remarkable coincidence” and thought is smacked of collusion.

To be continued...

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.

"An Act of Sheer Stupidity"

Vin was already married with children when his parents decided to separate in 1996, but to help them out, he decided to let two of his younger brothers move in with him and his family. He promised his mother he would do his best to be a father to them, particularly the youngest Dan, who was in Year 12 at the time. Dan had been doing pretty well at school but since the break up of his parents he had started to wag school, smoke pot, and indulge in "other undesirable behaviour".

Vin's mother contacted him to say she'd just noticed some gold was missing from her safe. A couple of months later she also noticed some jewellery was missing. She told Vin about it, as only she, Dan, and another brother knew the combination to the safe. Eventually, one night in July at around midnight Vin rang his mother to say he was bringing Dan over so that they could all discuss these missing items. He had been drinking that evening, and had become increasingly angry about the whole situation.

Once they were all together, Vin interrogated his brothers as to whether they had robbed their mother. Both brothers denied any involvement, but given Dan's recent drug use, Vin was sceptical about his answers. After about 15-20 minutes, Vin went back out to his car where he had a Luger pistol. He had a licence for the Luger as he was a member of a shooting club, and he had it in the car because he was intending to take part in a practice shoot. He also grabbed a loaded magazine from the car.

In the argument that followed Vin's return to the house, Dan was shot. The bullet struck Dan on the upper right side of his head and passed through his brain, injuring him fatally. Vin rushed over to Dan and tried to revive him, but it was no use. Vin was charged with his brother's murder.

In his recorded interview, Vin told police "So I just said that if he stole money from Mum then I wouldn't let him off scot free, I will kill him. But that was only what I said to scare him and when I, I shot, I, somehow he jumped sideways and accidentally he was shot... I intended just to scare him like this and accidentally I shot him, so I put the gun down here like this and then I called another younger brother of mine to call the police. So I was just trying to scare him by pointing the gun at him, but somehow it went off. It went off and I hit him... When I shot at him I didn't aim at him, I was shooting on one side of where he was but somehow it hit him."

Vin told police earlier that he wanted to fire a shot away from Dan and had intended to shoot just to the side of him. He said he intended to do that, because Dan had taken no notice of his warnings to behave properly, and he wanted to appear "fair dinkum about what I intended to scare him".

At his trial, Vin told the court "I threatened him but he kept saying he didn't do it and at that stage I thought that there was no bullet in the gun... Never in my mind had I the thought of pulling the trigger but I do not know why the gun was fired." He said that he hadn't shot the gun much and wasn't all that familiar with its workings, and that although he loaded the magazine into the gun that night, he had never cocked it. He said he had used the gun on one occasion, firing about 20-30 rounds. He told police that the bullet automatically became loaded into the gun when the magazine was put it.

He was not cross-examined on this, however inconsistencies in earlier statements he had made to police, and also on a bail application, were shown too him. In the bail application he had lied to the court about where he was currently living, and the fact that he had separated from his wife. He attempted to explain this by stating that he had not wanted to mention his family problems to the court. He also said he was referring to different occasions, so that, although he thought he might shoot the gun, he hadn't actually meant to shoot it at the time it fired.

Vin was originally put on trial for murder, however during the proceedings an adjournment was granted so that further ballistic testing could be carried out on the Luger. This testing showed that it was possible to remove the magazine and replace it without affecting the bullet that was currently in the chamber. It was possible in those circumstances for the weapon to remain cocked, and therefore discharge. Basically, it was possible that a user might take out the magazine, see that it was empty, presume the gun was also empty and not realise there was a cartridge in the chamber. Anyone then pulling the trigger would cause the pistol to fire, even if they have not actually cocked it immediately beforehand.

The Crown then offered a charge of manslaughter, which Vin pleaded guilty to immediately, on the basis that he had committed an 'unlawful and dangerous act'.

The Judge found that Vin's earlier lies to the bail court about his marital status and living arrangements were a serious dent in his credibility. As a result, his Honour chose to reject the account of the shooting that Vin gave at his trial, and instead preferred the version he had given to police at the time. The Judge also rejected the idea that Vin was ignorant of how the pistol worked, as he had stated as trial. His Honour found that it was established beyond reasonable doubt that Vin took out the Luger from the car, loaded the magazine into it, pointed the gun just to the side of Dan and fired one shot, which unexpectedly hit him, killing him. Vin intended to shoot, but not to harm.

However, the Judge also took into account that Vin was a 36 year old man with five children, and had arrived in Australia as one of a group of boat people with two of his brothers. He then worked extremely hard to bring the rest of his family out to Australia to set up and operate a sewing company. He had a relatively minor criminal record of traffic and drink-driving offences, and had never been to jail before. He was clearly remorseful for his actions. The tragedy had arisen out of his attempt to take over his father's role when Dan seemed in need of some supervision, and that he was also trying to look after his mother's interests, although in an entirely inappropriate manner, as it turned out. Vin was attempting to assume a family role that was beyond him, and it seemed there was a minor degree of provocation on Dan's part, although this was in no way an excuse for his actions.

Nonetheless, the offence was still very serious, and his Honour commented that there was no room whatsoever for guns in ordinary social relations in today's society. He concluded that Vin's behaviour was "an act of sheer stupidity".

Racial tensions

In the mid-90's tensions had been rising in Sydney between youth gangs of two racial groups, namely Pacific Islanders on one hand, and local Aborigines on the other. By November 1995 there was undoubtedly some bad blood between the two.

At about 9:30pm on a Tuesday night, a group of Islander boys including Sautia and Norman were hanging around in Lethbridge Park, and wandered into a nearby shop. While they were in there looking around, the staff members were having some problems with three young Aboriginal men. The staff eventually asked the three men to leave the shop. Sautia and Norman then took it upon themselves to personally escort the three young Aborigines from the premises themselves. Naturally, this caused a bit of resentment, and a fight broke out outside the shop. Sautia, Norman and another friend of theirs Tarawa were in the fight on the Islanders side, and among the Aborigines were Morgan and Anthony.

The fight was eventually broken up, but not before Tarawa was hit by a bottle, apparently thrown by one of the Aborigines. Two of the Islander boys then back to Nikau's house, a friend of theirs, and told them what happened to Tarawa. Everyone was pretty fired up, so Nikau and the other two went over to a mate's place in Emerton, called Stenschke. After hearing the story, Stenschke said they were all going back to the Lethbridge shops, where the boys said Tarawa had been attacked. While they were there Nikau picked up a kitchen knife and put it down his pants. One of the others told him to put it back, but he refused.

Nikau, Norman and the others arrived at Lethbridge Park. Some were carrying metal bars, and Nikau still had the knife. Morgan, Anthony and other Aboriginal boys were already in the park, and when they saw the approaching group of Islanders, they grabbed some fence palings and ran off into a laneway. They didn't get much further, as the Islanders caught up with them and they were set upon.

During the fight Nikau ran towards Anthony, one of the Aboriginal group, with the knife in his hand. Nikau yelled at him, accusing him of throwing the bottle that hit Tarawa earlier. Anthony turned around to run, but Nikau caught up with him and stabbed him in the back. Sautia and another Islander then laid into Anthony with an iron peg.

Morgan, who also managed to suffer some quite serious wounds, was the only one besides Nikau to make a statement about the incident. Morgan didn't see Anthony get attacked with a knife from the rear, but said there were about four Islanders around Anthony holding him by the arms, while Nikau stood between them, punching him repeatedly.

Nonetheless Anthony was stabbed in the left lung, and his aorta and pulmonary artery were severed. He died at the scene. Morgan was lucky not to suffer any permanent damage.

After the fight, Nikau and the others returned to Stenschke's house in Emerton. At that point Nikau realised he no longer had the knife. He searched for it, but could not find it. He said "I never meant to get him that bad, but it went straight through."

Nikau was charged with the murder of Anthony, and the malicious wounding of Morgan. He pleaded not guilty to murder but guilty to manslaughter, and guilty to malicious wounding. The Crown accepted this plea, and he was sentenced to 12 years imprisonment with a non-parole period of eight years for the manslaughter. For the attack on Morgan he received a fixed term of four years, to be served at the same time.

Nikau appealed his sentence, on the basis that the Judge had not given enough consideration to his youth, the fact that his inhibitions were significantly reduced by the amount of drugs and alcohol he had consumed before the fight, and also the ongoing racial tensions between the two ethnic groups that had led up to the fight.

The Appeal Court felt that while these factors go some way to explaining Nikau's actions that night, they certainly do not excuse them. The Court also noted that Nikau was already under a probation order when he committed this offence, and that the probation order had been imposed for, among other things, menacing a member of the public.

The Court felt proper weight needed to be given to the fact that one person was dead, and another was significantly injured, all because of the deliberate use of a knife in a public brawl. In particular the Court commented that "it was not going to stand idly by while members of conflicting groups worked out their social issues in street fights, armed with weapons". Nikau's appeal was rejected.

Paulo Nikau was due for release on 28 November 2003.

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.