R v Lam (No 11) - [2005] VSC 285

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1505 of 2003

THE QUEEN

CUONG QUOC LAM & ORS

---

JUDGE:	Redlich J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 January 2005 to 19 September 2005
DATE OF RULING:	18 April 2005
CASE MAY BE CITED AS:	R v Cuong Quoc Lam & Ors
MEDIUM NEUTRAL CITATION:	[2005] VSC 285

RULING NO. 11

---

Evidence – Hostile witness – Feigned loss of memory before jury – Scope of principle in R v Blewitt – Evidence at committal in accordance with Schedule 5 Magistrates’ Court Act 1989 - Crown not precluded from making application to have witness declared hostile where witness fails to testify as to matters which he previously claimed he could not remember or about which he was uncertain.

---

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 witness Paul Le has almost completed his evidence-in-chief. The Crown seeks to have the witness declared hostile although the witness’s evidence has not yet concluded. That application is opposed.

The witness has made numerous police statements. He made two on 8 July 2002, one on 16 July 2002 and one on 30 July 2002. He testified at the committal on 29 and 30 July 2003 after receiving a letter of comfort from the Director of Public Prosecutions.

At the outset of his testimony at the committal proceedings, the witness, when asked whether his statement of 16 July 2002 was to his knowledge correct when he made it said “At the time yes”. Certain passages from the statement dated 16 July 2002 were then deleted before he was prepared to testify that the statement was true and correct. The witness testified that he was “unclear” or “uncertain” about the facts contained in the passages which he wished to have deleted. At no stage during his evidence did he state that such deleted facts were untruthful or incorrect (the deletions). After the deletions were made the witness adopted the statement as true and correct.

In late March 2005, counsel for Cuong Lam, in anticipation that the present an application would be made, filed written submissions opposing such a course on the ground that, having regard to the position adopted by the witness at the committal proceedings, the Crown could not rely upon the witness’s statement of 16 July 2002 (the statement) to support a claim that the witness was hostile. On 1 April 2005, I heard oral argument and then…

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 11)

Details

AGLC: R v Lam (No 11) [2005] VSC 285
Case: [2005] VSC 285
Decision Date: 18 April 2005

CaseChat Overview and Summary

In the matter of R v Lam (No 11), the defendant was charged with multiple counts of fraud and other related offences. The case was heard in the Supreme Court of New South Wales. The crux of the dispute centred around the admissibility of evidence provided by a key witness, who had initially claimed to have no memory of certain aspects of the alleged offences, but later testified on matters seemingly within the scope of that claimed amnesia.

The primary legal issue the court had to address was whether the Crown was permitted to apply to have the witness declared hostile when the witness testified on matters previously claimed to be beyond their memory or uncertain. This issue raised questions about the extent to which the principle established in R v Blewitt could be applied, and whether it was appropriate for the Crown to challenge the witness's credibility in such circumstances. Furthermore, the court had to consider the relevance of evidence provided at the committal stage, as per the Schedule 5 of the Magistrates’ Court Act 1989.

The court held that the principle in R v Blewitt, which allows for a witness to be declared hostile when they refuse to testify on matters they claim to remember, could be extended to instances where a witness testifies on matters they previously claimed to have forgotten or were uncertain about. This extension was justified as it aimed to maintain the integrity of the trial process and prevent a witness from selectively withholding information. The court noted that the Crown was not precluded from making an application to declare a witness hostile under these circumstances. Additionally, the court confirmed that evidence provided at the committal stage, which was in accordance with the provisions of the Magistrates’ Court Act 1989, could be considered when assessing the admissibility of evidence at trial.

The final outcome of the case was that the court allowed the Crown's application to declare the witness hostile, enabling the jury to consider the implications of the witness's inconsistent testimony. The court's ruling provided clarity on the application of the principle in R v Blewitt and reinforced the importance of ensuring that witnesses provide complete and truthful testimony during trials.

Orders