R v Lam
[2004] VSC 469
•28 September 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1505 of 2003
| THE QUEEN |
| v |
| HOANG TRAN |
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JUDGE: | Redlich J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 September 2004 | |
DATE OF RULING: | 28 September 2004 | |
CASE MAY BE CITED AS: | R v Cuong Quoc Lam & Ors | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 469 | |
---RULING No. 2
Whether statement taken without caution admissible – Whether accused a witness or suspect at the time statement was taken – Whether statement should be excluded as a matter of fairness – Whether accused affected by alcohol at time statement was taken - Whether opportunity given to subsequently clarify matters arising out of first statement.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. McArdle S.C. with Mr P. Southey | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Accused | Mr B. Wilkinson |
HIS HONOUR:
Application has been made on behalf of the accused, one Hoang Tran, that his statement made to investigating police on 8 July 2002 be excluded from any evidence that the Crown seeks to call in its case against him.
When this application was first foreshadowed, Mr Rochford, who then appeared for the accused and who, I understand, will appear for the accused on his trial, adumbrated that the application ought be based upon the contention that the accused was viewed as a suspect by those investigating police who took his statement of 8 July 2002. As no caution was administered before the statement was taken, it should therefore be excluded on the basis that it did not comply with s.464A or s.464H Crimes Act 1958.
Mr Rochford provided an outline of submissions in relation to the submission that the statement should not be admitted into evidence. He submitted that there was no indication that a caution had been administered before the statement was taken. He referred to the fact that the investigating officer, Detective Gale, who took the statement, had taken possession of certain clothing worn by Mr Tran following the taking of the statement. He submitted that that indicated that Mr Tran was being viewed as a suspect at the time that the statement was made.
Mr Rochford also referred to evidence of Detective Smith given at the Committal that at the time of the making of the statement Mr Smith had viewed Mr Tran as a suspect.
Mr Rochford further referred to the content of a subsequent statement made by the accused on 18 July 2002 in which the accused had said, after being cautioned, that he was making the further statement as a consequence of legal advice. Further at the time of the first statement, he said that he was pretty drunk and tired and that the statement he had first made was not a full one.
On those grounds, Mr Rochford foreshadowed that the first statement should be excluded because it would be unfair in all of the circumstances to do so.
Mr Wilkinson, who appeared on the accused’s behalf in making the present application, developed the submission in a different way to that outlined by Mr Rochford.
It has become apparent in the course of the submissions from both Mr Wilkinson and Mr McArdle, who appears on behalf of the Crown, that the accused, when spoken to by Detective Gale on 8 July 2002, was spoken to as a potential witness and not as a suspect. Mr McArdle referred to a number of matters which are obviously not in dispute. These matters demonstrate that proposition, and I assume, although Mr Wilkinson did not say so in terms, that it became evident to the accused’s legal advisers that there was no prospect of it being demonstrated, at the time the accused was first interviewed that he was interviewed as a suspect.
Mr Wilkinson has submitted that the statement of 8 July 2002 should, in the alternative, be excluded on the basis that its probative value was outweighed by its prejudice to the accused Hoang Tran or, that as a matter of fairness, it should be excluded.
He submitted that, if the statement is admitted into evidence, it will be evident to a jury that there are matters that are not referred to in the statement which the jury will regard as odd. In particular, the absence of any account by the accused of what the accused did for some period of time after leaving the Salt Nightclub, and, further, things contained within that statement which the jury might conclude were false.
If the statement was admitted into evidence, Mr Wilkinson submits that an unfairness would arise in that the accused would probably be compelled to give evidence. That course would, of itself, constitute sufficient unfairness to warrant the exclusion of the statement.
Mr Wilkinson drew attention to the fact that no caution had been given prior to the making of the first statement, but his submission ultimately rested on the contention that, when Mr Hoang Tran was subsequently interviewed on 18 July 2002 and made a second statement during the course of that interview, he was not given an adequate opportunity to address the deficiencies which existed in his first statement.
It can be seen, from what I have already said, that there was a merging of two quite distinct bases upon which the statement might have been excluded; the first being that its probative value was outweighed by its prejudice or, as Mr McArdle has said, in the exercise of what is commonly referred to as the “Christie” discretion, or, alternatively, that I should, in the exercise of my general discretion, exclude it as unfair.
Upon further discussion during the course of Mr Wilkinson’s submission, it became clear that it was really on the second basis that his submission rested, it being clear that the statement contains matters probative to the proposed Crown case. Further the prejudice which flowed from the statement was the prejudice flowing from its probative value and not from some unfair or impermissible prejudice.
Looking at the question then on the basis that the statement should be excluded as having been unfairly obtained or, alternatively, on the basis that, having regard to subsequent events it would be unfair to admit the statement, Mr Wilkinson drew my attention to various passages in the record of interview which deal with the circumstances in which the accused was questioned about his earlier statement.
In support of his contention that the accused had been given no adequate opportunity to clarify matters referred to in the earlier statement, Mr Wilkinson referred to questions 11 to 26 of the record of interview in which the investigators explored with the accused why he had voluntarily attended at the investigators’ office to proffer further information to the investigators. Those questions and answers reveal that the investigators invited the accused to tell them why it was that he had come to speak to them and expressly directed his attention to whether he wished to tell them anything further or by way of addition to the statement he had made on 8 July 2002.
The accused, at answer 27, indicated that he did wish to add to his statement. He proffered some further information, but indicated to the investigators that he would be content and, in fact preferred, if they would ask him questions rather than he just narrate his position.
It seems that that procedure was then largely followed.
The investigators returned to the question of his earlier statement at questions 372 to 376 of the interview when he was again asked by investigators whether he had told the police on that night, that is, on the night of the 7th and the morning of the 8th of July 2002, what he had just told them in the course of the interview. He said that he had not done so and was asked why and then said, “Cos I didn’t know it was this serious. I didn’t know so, someone died and stuff”. Question, “Well, did you see what happened with this guy?” Answer, “Yeah, he was still talking. Yeah, I remember he was still talking to those guys”.
The second statement which was taken from the accused and dated 18 July 2002 was then read into the record of interview. During the course of that statement, the accused said in relation to the first statement that he made on 8 July 2002, “It was not a full one because I didn’t know it was this serious and people died. I was pretty drunk and tired and just wanted to get it over with”.
Having heard briefly from the learned prosecutor, I then indicated to Mr Wilkinson that it was my strong impression that there was no foundation either in law or fact for the contention that anything that had occurred on 18 July 2002 could so affect the admissibility of the first statement taken on 8 July 2002 that I should exercise my discretion to exclude it.
Mr Wilkinson was invited to consider the course of calling Mr Gale, the detective who took the first statement and who was present outside the court, to explore the question of the condition of the accused at the time that the first statement was made, bearing in mind the explanation subsequently given by the accused for his condition at the time of making the first statement.
Mr Wilkinson had Detective Gale called. The substance of Detective Gale’s evidence was that he did not observe any sign of the accused being affected by the consumption of alcohol at the time that his first statement was taken.
In those circumstances, I can see no basis in law and no factual foundation to support the contention that the first statement of the accused should be excluded. The application is therefore rejected.
In the course of submissions, the question was debated as to whether or not the Crown intended to rely on any false denials in the first statement as constituting a consciousness of guilt. As is the Crown’s prerogative, its position has not been finalised in relation to that question and, as Mr McArdle indicated, even if the Crown resolves to rely upon false denials as constituting an implied admission of guilt, it may not be his intention to open such matters to the jury.
Whether or not the Crown does ultimately rely upon false denials in that way remains to be seen, but the directions that I may need to give the jury concerning such matters will not depend solely on the way in which the Crown’s case is put against this accused, but will also depend upon the extent to which, if at all, the question of consciousness of guilt arises in the context of the cases of the other accused.
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