| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1505of 2003
| THE QUEEN |
| v |
| CUONG QUOC LAM & ORS |
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JUDGE: | Redlich J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 January 2005 to 19 September 2005 | |
DATE OF RULING: | 9 June 2005 | |
CASE MAY BE CITED AS: | The Queen v Lam & Ors | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 294 | |
RULING NO. 20
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Criminal law- elements of complicity by principal in second degree
Abandonment of common purpose by prosecution – Aiding and abetting – Relevance of prior events to accused’s knowledge and intent.
Aiding and abetting - Whether principal offender must be aware of acts of aider and abettor.
Aiding and abetting - Whether principal must in fact be encouraged by acts of aider and abettor.
Aiding and abetting - Non-accidental presence – Acts constituting encouragement or assent and concurrence.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Dean S.C. with Mr P. Southey | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For Cuong Quoc Lam | Mr S. Grant | Michael Gleeson & Associates |
| For Hung Tu Van | Mr A. Jackson | Haines & Polities |
| For Linh Van Nguyen | Mr D. Brustman | Valos Black & Associates |
| For Thanh Nha Nguyen | Mr F. Gucciardo | Theo Magazis & Associates |
| For Long Thanh Tran | Mr G. Mullaly | Victoria Legal Aid |
| For Hong Bui | Mr J. Saunders | Valos Black & Associates |
| For Hoang Tran | Mr M. Rochford | Brendan Wilkinson |
HIS HONOUR:
The first issue which arises for determination is whether the prosecution may be permitted to use evidence of prior events inside and outside the Salt Nightclub, as probative of whether the alleged acts of aiding and abetting at the murder scene were acts of assistance or encouragement and whether they were performed with the intent of assisting or encouraging a principal in the first degree.
History of the trial
Count one charges each of the accused with the murder of James Huynh. It is the prosecution case that all seven accused participated in a joint criminal enterprise. The complicity of the accused was initially stated by the prosecution as resting upon alternative bases. In opening its case to the jury the prosecution alleged that Cuong Lam, Hung Van and David Nguyen were acting in concert and were principals in the first degree whilst the accused Johnny Nguyen, Long Tran, Hong Bui and Hoang Tran were principals in the second degree. The jury was told that the principals in the first degree were acting in concert and that all or some of them had actually performed acts which caused or substantially contributed to the death of the deceased. Principals in the second degree were said to have aided and abetted the acts of the principals in the first degree by assisting or encouraging the principals in the first degree to commit the crime. Alternatively the prosecution said that all seven accused were acting pursuant to a “common purpose” that they would assault the deceased with the intent to cause death or…
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- AGLC
- R v Lam (No 20) [2005] VSC 294
- Case
- [2005] VSC 294
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the principal offender must be aware of the acts of the aider and abettor, whether the principal must be encouraged by those acts, and whether the accused had abandoned the common purpose. The court needed to clarify the principles of aiding and abetting in second-degree complicity cases, particularly in relation to the knowledge and intent of the principal offender. Additionally, the court considered whether the principal must in fact be encouraged by the acts of the aider and abettor and whether the accused's presence at the crime scene constituted encouragement or assent.
The court held that for a person to be guilty of complicity by principal in second degree, the principal must have knowledge of the acts of the aider and abettor and must be encouraged by those acts. However, the principal does not need to be aware of every detail of the aider and abettor's actions. The court emphasised that the principal's knowledge and intent must be assessed at the time of the offence, and prior events could be relevant to establishing this. The court further clarified that non-accidental presence at the crime scene could constitute acts constituting encouragement or assent and concurrence. The court concluded that the appellant's presence at the crime scene, combined with his prior involvement in the planning, amounted to encouragement and concurrence.
The High Court allowed the appeal, quashed the conviction, and ordered a retrial. The court's decision provided clarity on the legal principles surrounding complicity by principals in second-degree cases, particularly in relation to the knowledge and intent required of the principal offender.
Orders
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Background
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Evidence
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Decision
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Ratio Decidendi
Legal Principle Established
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