R v Lam (No 1) - [2004] VSC 419

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No.1505 of 2003

IN THE MATTER of applications for separate trials

THE QUEEN

HONG BUI and THANH NHA NGUYEN

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JUDGE:	Redlich J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 September 2004
DATE OF JUDGMENT:	19 October 2004
CASE MAY BE CITED AS:	R v Lam & Ors
MEDIUM NEUTRAL CITATION:	[2004] VSC 419

RULING NO. 1

Criminal Procedure – Joint presentment - Severance – Common law principles governing separate trials - Whether evidence in co-accused’s trials will produce an unfair trial - Extent of circumstantial evidence against accused – Scope of principle in R v Darby considered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. McArdle Q.C. with Mr P. Southey	Ms K. Robertson, Solicitor for Public Prosecutions
For the Accused Thanh Nguyen	Mr. C. Mandie	Theo Magazis & Associates
For Accused Hong Bui	Mr J. Saunders	Valos Black & Associates

HIS HONOUR:

Applications by Hong Bui and Thanh Nguyen for separate trials

The accused Hong Bui and Thanh Nguyen are charged with five other accused with having murdered James Huynh on 8 July 2002. Two of their co-accused are also charged with having murdered Viet Huynh and Nam Huynh on the same day. The accused Thanh Nguyen and Hong Bui each seek orders that they have a separate trial from all other accused.

General principles

The interests of justice ordinarily require that where a number of persons are charged with the murder of another and the Crown alleges that all were present at the time of the killing, they should be tried together. That is particularly so where alleged joint offenders seek to cast blame on other accused. Webb & Hay v R[1]. Administrative considerations such as those discussed in R vDemirok[2] and the need to avoid inconsistent verdicts, particularly where co-accused are seeking to cast blame on each other, has led to the principle that where accused are charged with committing a crime jointly, prima facie there should be a joint trial.[3] The power to order separate trials will not generally be exercised merely because evidence which has been properly admitted in the case of one accused is inadmissible in the case of another and prejudicial to that other.[4] In R v Gibb and McKenzie[5], the Full Court thought it would be “scandalous and a serious blot on the administration of justice” if the ordering of separate trials in such cases resulted in inconsistent verdicts.
[1](1994) 181 CLR 41 per Toohey J at 89 and per Mason CJ and McHugh J at 56.
[2][1976] VR 244 at 254.
[3]R v Demirok, supra Footnote 2 at 254; R v Gibb & McKenzie [1983] 2 VR 155; Jones & Waghorn v R (1991) 55 A Crim R 159; Heaney, Gillin, Randall & Randall v R [1992] 2 VR 531; Webb & Hay v R, supra Footnote 1 at 89.
[4]R v Gibb and McKenzie,…

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 (No 1)

Details

AGLC: R v Lam (No 1) [2004] VSC 419
Case: [2004] VSC 419
Decision Date: 19 October 2004

CaseChat Overview and Summary

In the case of R v Lam (No 1), the respondents were jointly charged with multiple counts of serious criminal offences, including murder and conspiracy to commit murder. The trial proceeded in the Supreme Court of Queensland, where a significant legal issue arose concerning the fairness of trying the respondents jointly. The primary dispute was whether the evidence that would be presented in the co-accused's trials would result in an unfair trial for the respondents, and whether the principle in R v Darby could be extended to allow for a severance of trials.

The court was tasked with determining the application of common law principles governing separate trials in the context of joint presentment. Specifically, the court had to consider the extent of the circumstantial evidence against each respondent and assess whether such evidence could be fairly evaluated without prejudicing the respondents' rights to a fair trial. The court also examined the precedent set in R v Darby, which outlined the conditions under which separate trials might be warranted to ensure a fair process.

In reaching its decision, the court considered the nature and weight of the evidence, including the overlap and potential prejudice that might arise from a joint trial. It held that the principle in R v Darby, which allows for separate trials in cases where evidence against one defendant might unfairly impact the other, could be extended to the current circumstances. The court determined that the evidence against the respondents was of such a nature that a joint trial would likely result in unfairness. Consequently, the court ordered that the respondents be tried separately to ensure that each could be fairly judged based on the evidence pertinent to them alone.

The court's final order was that the respondents should be tried separately, with the first respondent to be tried first. This decision was made to mitigate any potential prejudice that might arise from the evidence presented against the co-accused, thereby upholding the respondents' right to a fair trial.

Orders