R v Lam Bui

[2001] QSC 223

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lam Bui [2001] QSC 223

PARTIES:

THE QUEEN
v
LAM THANH BUI
(applicant)

FILE NO:

86 of 2001

DIVISION:

Trial Division

DELIVERED ON:

29 June 2001

DELIVERED AT:

Brisbane

HEARING DATE:

25 May 2001

JUDGE:

Mackenzie J

ORDER:

The application for a separate trial for the applicant Lam Bui is refused.

CATCHWORDS:

CRIMINAL LAW – JOINT OFFENDERS – MURDER – application for separate trial – whether principles for  separate trial in  R v Baartman apply – whether the reception of  evidence admissible against co-accused but inadmissible against the applicant would endanger the applicant’s prospects of a fair trial – whether risk of positive injustice

Criminal Code; s592A, s606

R v Baartman (NSW CCA 6 October 1994)
R v Dien Cong Duong and Dung Ngoc Nguyen [2000] QSC 266
R v Middis (SC NSW Hunt J 27 March 1991)

Gilbert v The Queen (2000) 170 ARR 88
The Queen v Pillar & Others (1986) ACrimR 249

COUNSEL:

A Rafter with G Seaholme for the Crown
T Ryan for the accused

SOLICITORS:

Director of Public Prosecutions (Qld) for the Crown
D McMillan  Solicitor for the applicant

1. MACKENZIE J:  This is an application pursuant to s592A and s606 of the Criminal Code that the applicant be tried separately from Dung Ngoc Nguyen and Dien Cong Duong.  The basis of the application is that a joint trial would bring about a risk of positive injustice to the applicant, because the reception of evidence at a joint trial admissible against Duong and Nguyen, but inadmissible against the applicant would endanger the prospects of his fair trial. 

1. This is one of a series of pre-trial applications in regard to an alleged murder.  In R v Dien Cong Duong and Dung Ngoc Nguyen [2000] QSC 266 I stated the relevant principles for separate trials. Since both counsel accept that statement of the law, I will not repeat it. Mr Ryan also relies on principles stated by Hunt J in R v Middis (SC NSW 27 March 1991), adopted by the New South Wales Court of Appeal in R v Baartman (NSW CCA 6 October 1994) where the following propositions are stated:

(a)where the evidence against an applicant for a separate trial is significantly weaker than and different from that admissible against another accused; and

(b)where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him; and

(c)where there is a real risk that the weaker Crown case against the applicant will be made measurably stronger by reason of the prejudicial material;

a separate trial will usually be ordered in relation to the charges against the applicant.   However, the applicant must show that positive injustice would be caused to him in a joint trial.

1. The applicant's argument requires a summary to be given of the state of the evidence against the applicant.  The Crown proposes to call Vinh Chi Pham who has already pleaded guilty to minor involvement in the matter.…