R v Lam

Case [2005] VSC 294 9 June 2005

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1505of 2003

THE QUEEN

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Lam

Details

AGLC: R v Lam (No 20) [2005] VSC 294
Case: [2005] VSC 294
Decision Date: 9 June 2005

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions v Lam, the High Court of Australia was tasked with determining the legal principles surrounding complicity by principals in second-degree cases. The appellant, Lam, was convicted of murder as a party to a crime. The case involved a dispute over whether the principal offender must be aware of the acts of the aider and abettor, and if the principal must be encouraged by those acts. The central question was whether the accused had abandoned the common purpose before the crime was committed.

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