DPP v Arslanian [2022] VSC 736 (1 December 2022)

DPP v Arslanian [2022] VSC 736 (1 December 2022)

Intro: Hiag Jacob Arslanian is charged with manslaughter. However, the jury was unable to reach a verdict on the alternative charge of manslaughter by unlawful and dangerous act. The court now asseses if Hiag Jacob Arslanian was

Facts:

Haig Jacob Arslanian is charged with manslaughter in relation to the death of his brother, Dikran (David) Arslanian, on 5 October 2020 in Whittington. Haig Arslanian was arraigned on 20 October 2020 and pleaded not guilty.

Haig was originally charged with murder in relation to his brother’s death, and stood trial before a jury of 12 between June and July 2022. He was acquitted of murder on 18 July 2022; however, the jury was unable to reach a verdict on the alternative charge of manslaughter by unlawful and dangerous act.

Following the jury verdict, the prosecution filed a new indictment on 26 September 2022 for the charge of manslaughter by unlawful and dangerous act.

On 19 September 2022, the defence filed an application for trial by judge alone. An order was made on 27 September 2022 that the charge of manslaughter be heard and determined by judge alone.

David died as a result of two gunshot wounds to his torso. It is not disputed that: Haig shot his brother and therefore did the act that caused David’s death; the act was conscious, voluntary and deliberate; the act was dangerous; and, unless Haig was acting in self-defence, his shooting of David constituted an unlawful assault.

Issue:

1) Whether or not the accused’s response was a reasonable response in the circumstances as he perceived them.

Ruling:

Yes.

Accordingly, I am not satisfied that the prosecution has proved beyond reasonable doubt that Haig did not believe it was necessary to do what he did to defend himself.

I accept that at that time Haig believed that firing the gun was necessary to protect himself. In Haig’s mind it was the only response available to him at that point in time.

Mrs Arslanian is a critical witness. She is the only witness who gave direct evidence at trial about what happened inside the family home on 5 October.

Haig’s actions must be viewed in the context of family violence. This was his home and he continued to live there after the September incident. The prospect of David’s return following the September incident meant that Haig did not feel safe in his own home because he held a genuine belief that David would harm him. It was in this context that Haig stole the firearm; he realised that after the September incident, there may come a time where he had to protect himself from another physical assault given the last time caused him to fear for his life.

There was a history of at least two years of David being violent towards other family members, but most often violent toward Haig. David’s violence was not limited to physical acts but included intimidation and harassment. Haig’s firsthand knowledge and experience of David’s violence clearly affected his state of mind in the moments before the shooting. He said in the ROI that he was scared because of what had happened three weeks earlier and because David used his size to hurt and intimidate him.

The overwhelming emotion that Haig described in the period leading up to the shooting was fear. Haig said that in addition to fear, he felt anger and rage. Haig does not resile from the fact that his ‘[anx] got the better of him’ and says ‘I lost it, I had enough’. In his ROI Haig was careful to ensure that his answers were as accurate as possible and he did not want to lie. When asked what the argument was about, he was careful to say that it was not an argument but that David had just said some words to him. According to the account given to Ms Manson, Haig told David to ‘hush, just hush’.Haig said there was a scuffle, that was physical and verbal, and Mrs Arslanian gave evidence that there was a chair thrown by Haig towards David. This may be consistent with anger, but also may be consistent with a defensive action to keep David physically away from Haig.

 The fact that Haig was angry does not diminish the fear he experienced on David’s return home and particularly when David was coming towards him. I agree with the defence submission that fear and anger can exist at the same time and are not mutually exclusive. This is consistent with Dr Pandurangi’s opinion. Dr Pandurangi explained that anger is a normal emotion, however how Haig processes that anger is different from most people. He described Haig’s anger in the context of emotional dysregulation, which encompasses many of Haig’s emotions rather than just a single emotion such as anger. Importantly, the history Haig provided to Dr Pandurangi that he heard voices to protect himself after David put his head in the mirror and in the moment he pulled the trigger, were thought processes of a very distressed and frightened man.

Haig had only weeks before nearly been killed by David who placed his body on him, pinned him down and then strangled him until his father and mother saved him. In the ROI when describing the moments before he shot David, Haig said that David had just said ‘Come on, hero’ and he then demonstrated verbally, ‘[David] was in my face’. He made distressing sounds to describe the moment and made gesticulations with his hands to try to convey what was a terrifying scenario for him.

I consider that Haig experienced anger and fear on 5 October from when David and Mrs Arslanian returned home. He had a an existing belief that David would harm him and it is in this state of extreme anxiety about his own wellbeing that Haig reacted on 5 October. After David pushed Haig’s head into the mirror, Haig’s overwhelming emotion was most likely fear that David would seriously injure him or even kill him. It is open to conclude or it is a reasonable hypothesis that Haig believed in that moment that he had no option but to get the gun as it was likely David would attack again and Haig would not be able to defend himself.

Conclusion

I am not satisfied that the prosecution has proved beyond reasonable doubt that Haig did not believe it was necessary to do what he did to defend himself, nor that Haig’s response was not a reasonable response in the circumstances as Haig perceived them.

Therefore, Haig’s conduct was legally justified because he acted in self-defence. As a result, the prosecution has not proved that the relevant act was unlawful for the purposes of the offence of manslaughter by unlawful and dangerous act.

Verdict

I direct that an entry of not guilty be made on the record in respect of the charge of manslaughter in the indictment numbered L12366684A.