R v Lam (No 11)
[2005] VSC 285
•18 April 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1505 of 2003
| THE QUEEN |
| V |
| 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: | 18 April 2005 | |
CASE MAY BE CITED AS: | R v Cuong Quoc Lam & Ors | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 285 | |
RULING NO. 11
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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.
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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 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 adjourned the further hearing of the issue until such time as the Crown made an application to have the witness declared hostile.
According to the statement (which the witness described as truthful during his cross-examination at the committal) the witness observed various persons including some of the accused armed in Daly Street. The witness observed some of the accused involved in the fight in Daly Street and witnessed the chase in Chapel Street whilst travelling in Mark Ung’s motor vehicle. He arrived at the murder scene at the intersection of Chapel Street and Alexandra Parade before the deceased and those chasing them had arrived. He observed three persons run to the river chased by others.
In his evidence in chief to the jury, he omitted almost all of the matters that may have incriminated any accused, claiming that he had no memory of those events whilst remembering certain matters that may have been helpful to various accused. His selective recollection was designed to assist the accused. He was unwilling to fully and frankly relate his observations to the jury.
Pursuant to s.56 Magistrates’ Court Act 1989 a committal must be held in all cases where a defendant is charged with an indictable offence except where a direct presentment is made by the Director of Public Prosecutions or the defendant elects to proceed without committal or where the charge is to be heard summarily. The committal is to be conducted in accordance with Schedule 5 of the Act which provides by clause 15 that a witness must confine his evidence-in-chief to identifying himself and attesting to the truthfulness of a statement. The witness in accordance with this procedure testified that his statements were correct, subject to the modifications by way of deletions that he made to his statement.
It was conceded by counsel for Cuong Lam that the prosecution was entitled to attempt to elicit evidence-in-chief by non-leading questions in relation to all of the facts set out in the witness’s out of court statements. It was submitted that the fact that the witness did not give evidence-in-chief of the facts contained in the deletions from the statement could not provide a basis upon which the witness could be declared hostile. It was contended that to do so would contravene the principle enunciated in R v Blewitt[1] that the Crown may not call a witness for the purpose of seeking to place inadmissible evidence before the jury.[2]
[1](1988) 80 ALR 353.
[2][2005] VSC 283 (Ruling 9).
Senior counsel for the prosecution submitted that Schedule 5 Magistrates’ Court Act (Vic) 1989 does not regulate the admission of evidence in the course of the trial. It does not, he submitted, affect the admissibility of evidence at trial. It was submitted that where a witness has not adopted the entirety of a witness statement at a committal proceeding, the prosecution is not precluded from calling the witness to give evidence in accordance with the omitted part of the witness statement and to make application for the witness to be declared hostile where he does not do so. It was further submitted that there was no material before the Court to support the proposition that the relevant parts of the statement were untruthful. The witness had only previously testified to the effect that he could not remember those matters. It was submitted that it was open to the prosecution to attempt to elicit such evidence in chief from the witness and to have him declared hostile if he claimed that he was unable to remember or was uncertain about those matters.
In Ruling No. 6[3] the procedure in R v Neil, Regos & Morgan,[4] approved in R v Thynne[5] and its underlying rationale was discussed. In Ruling No. 9[6] I ruled that the prosecution was not precluded from seeking to lead evidence of certain facts at the trial because the witness had said in cross-examination at the committal that he could not remember those facts.
[3][2005] VSC 280.
[4](1947) 53 ALR(CN) 615c.
[5][1997] VR 98 at 101.
[6]{2005] VSC 283.
It is helpful to set out the evidence that the prosecution anticipated the witness would give. (I shall later refer to the evidence contained in the deletions to the statement.) He was to testify that the accused Hong Bui, Long Tran and Hoang Tran together with numerous witnesses called by the prosecution were at Hot Shots in Footscray prior to going to the Salt Nightclub, that they travelled to the Salt Nightclub and that various accused took their motor vehicles to the Salt Nightclub. He was to give evidence that the accused Cuong Tran was involved in a fight inside the Salt Nightclub and that he and the accused Hong Bui and Long Tran together with other Crown witnesses gathered together outside the Salt Nightclub immediately after the fight. He was to give evidence that he observed the accused Cuong Lam holding a Samurai sword in the company of Tuan (Tran) and another Asian male who were also holding Samurai swords. He was to testify that he knew Cuong Lam and that he knew Tuan Tran as a friend of Cuong Lam. He was to give evidence that Tuan Tran was bleeding from his face and that the third Asian male holding a Samurai sword was bleeding a lot from the back of his head and it was dripping. He was to testify that he noticed Cuong Lam, Tuan (Tran) and the third Asian male with Samurai swords walking past the car park next to the Salt Nightclub near the boom gates. He was to testify in accordance with his evidence-in-chief at the committal that he had said to them when they walked close to him “What are you guys doing?” He was testify that he noticed the two men bleeding and said to Tuan are you alright. He was to testify that they stood in that position for some 10 minutes or so and the security guards did not say anything to Cuong or his friends. He was to give evidence that he saw a bunch of guys walking down the street towards them and that he saw Cuong Lam, Tuan Tran and the third Asian male with a sword run towards the group. He remembered that the other group had bottles and threw them at Cuong’s group. He was testify that the third Asian male with sword outstretched was swinging backwards and forwards. He then observed that the group who had thrown bottles, turned and ran towards Chapel Street. He was testify that Cuong Lam, Tuan Tran and the third guy with the sword ran after this group towards Chapel Street. He was testify that he remembered seeing his friend Hong Tran also run after them. He was to testify that he was around seven metres or so behind Cuong Lam and that they were all running pretty fast. The Crown expected that he would also testify that he observed them to run into Chapel Street and turn left. When he reached Chapel Street he saw a group of people sprinting on both sides of the road towards Alexandra Parade. He was testify that he got into Mark Ung’s car and outside Legends and as they were driving towards Alexandra Parade he observed guys running towards Alexandra Avenue in Chapel Street. He observed them not five to ten metres from the intersection with Alexandra Parade. He was to testify that having alighted from Mark Ung’s car in Alexandra Avenue he observed three guys run from the corner of Chapel Street and Alexandra Avenue. These Asian guys ran diagonally across the road towards the river past Mark Ung’s car that was still parked in Alexandra Avenue. He was testify that he then heard some splashes in the river and heard people yelling from the river. He was to give evidence that he observed that Mark Ung was still in the driver’s seat of his car and that Mark Ung then did a U-turn and drove towards Chapel Street. He and Paul Scanlon then ran to the river and jumped into the river to rescue someone.
None of these matters had been deleted from his statement before he adopted it as his evidence-in-chief at the committal.
As to the evidence contained in the deletions, the Crown also anticipated that the witness may testify before the jury that he remembered seeing Long Tran’s car parked on the side of the road in Chapel Street. He may also have testified that he observed a bunch of Asian guys some of whom had swords running towards Alexandra Avenue in Chapel Street as he drove towards Alexandra Avenue. He may also have testified that he saw Cuong Lam, still holding the Samurai sword, Tuan Tran and about three other Asians run after the first three men towards the river. He may have testified that he saw them in the middle of the road about five to ten metres behind the first three. He may have testified that he heard a male yell out in Vietnamese “Fuck your mother”. He may also have given evidence that after he heard the splashes in the river he observed some Asian males, one of whom was Cuong Lam, get into Mark Ung’s RAV-4. This was at a time just prior to him hearing people yelling from the river. He may also have testified that Cuong Lam and his friends did not get out of Mark Ung’s car which then did a U-turn and drove down Chapel Street. At the committal proceedings he had said in relation to these matters that he was either unclear or unsure about them.
In addition to the evidence contained in the deletions he may have repeated the evidence he gave in cross-examination at the committal that he observed his friend Mark Ung involved in the fight at the Salt Nightclub.[7] He may also have testified that he heard voices saying “Fuck them forget about them” at the time people had jumped into the river.[8] He may have repeated his evidence in cross-examination at the committal that he had seen two people standing outside the Salt Nightclub who were armed and bleeding and he recognised one of them as Tuan Tran. He also testified that the other person who was bleeding was ahead of the armed group when a group came around the corner from Alexandra Avenue and that he thought that person had yelled something out.[9] He stated that this person who was bleeding also had a sword.[10] He also testified that he thought that he saw some guys running down towards the river and he thought that they had a sword.[11] In re-examination at the committal Mr Le said that there were things in his statement that were now unclear to him and he could not really recall them. He drew a picture of the Samurai sword which he said the second person bleeding was holding.
[7]Tat 546 – Committal proceedings.
[8]T at 553 – Committal proceedings.
[9]T at 592 – Committal proceedings.
[10]T at 596-597 – Committal proceedings.
[11]T at 605 – Committal proceedings.
Mr Le and the previous witness who gave evidence before the jury, one Paul Scanlon, had made false statements to investigators before giving a detailed account to investigators which they both had claimed was a truthful account. In those initial statements each of them had omitted their observations of any conduct of their friends or the accused which implicated any of them. They had both provided to the police the same false account of their movements at the relevant time. In the witness statement which Mr Le adopted as true and correct at the committal hearing, Mr Le said:
“In my first two statements I did not go into as much detail. I did not say that I saw Cuong and Tuan and the others armed with swords. The reason I did not say this is because I am really scared of them coming after me and my family. I was also trying to protect my friends from Cuong and his friends.”
At the commencement of his evidence at the committal proceedings he qualified these reasons for being scared stating that they had been “misinterpreted” or were “uncertain”. In cross-examination the witness stated that he had left matters out of his first statement because he did not want to get his friends into trouble and that what he had said in the statement of 16 July 2002 was the truth.
Counsel for Cuong Lam adopted the written and oral submissions made on 1 April 2005 and submitted that as the Crown was aware that the witness claimed to be unsure or uncertain about the deleted passages from his statement of 16 July 2002 the Crown could not rely upon the witness’s failure to give evidence of those matters as a basis for having the witness declared hostile.
It was also submitted that the witness’s testimony had not materially departed from the content of the statement which he had adopted as true and correct at the committal proceedings, particularly in relation to his description of events at the river. There is no substance in this contention. Almost all material parts of the witness’s observations of events outside the Salt Nightclub, in the course of driving up Chapel Street to Alexandra Avenue and of the events in Alexandra Avenue were omitted from his testimony. His answers were generally accompanied by the explanation that he could not remember. On some occasions he flatly contradicted what appeared in his statement. I am satisfied that the witness made no genuine attempt to recall the numerous and significant events in which he had described the conduct of an accused or a person who it would be opened to the jury to infer was an accused. I am satisfied having observed the witness’s demeanour over a lengthy examination-in-chief that he claimed a loss of memory to avoid testifying as to matters that may have implicated an accused. I am satisfied that he feigned a loss of memory both in relation to all or at least substantial parts of the qualified passages from his statement of 16 July 2002 and also those parts of his statement which were not so qualified. The witness’s unwillingness to tell the truth was clear.
The contention of counsel for Cuong Lam and other defence counsel who adopted his submission, that the Crown was precluded from seeking to declare the witness hostile on the basis that the witness did not testify as to an event before the jury where the witness at the committal had said that he could not remember or was uncertain about that event, is not soundly based.
There are many reasons why a witness may testify at a preliminary hearing that they cannot remember or are unsure about an event and yet may testify as to that event on trial. The trial judge is not required to investigate why the witness testified as he did at the committal proceedings, yet may be expected to testify as to that event at trial. Evidence on a prior occasion is not to be treated as though it was conclusive proof as to what the witness would say at trial. The question of hostility is generally determined by reference to the demeanour of the witness before the jury and the extent to which the witness may depart from previous statements which the witness has acknowledged to be true and correct.
If an explanation is required for the witness’s departure from his statement of 16 July 2002, in its deleted form, the witness provided that explanation in the statement and in his testimony at the committal. It appears that the witness was a close friend of many of the accused. He was, by his own admission, scared and reluctant to say anything that may get his friends into trouble. He said he was frightened of certain accused and what they may do to his family and friends. Furthermore, his unwillingness to be truthful with investigators was amply demonstrated by the original and false statement which he made to investigators which was false in the same material particulars as the statement made by the previous witness Paul Scanlon. Both Scanlon and Le’s statements are part of the depositions. An examination of their initial statements raise as a prominent hypothesis that there was collusion between them.
Mr Grant submitted that it would impermissible for me to take such matters into account. He submitted that such collusion as might be inferred between this witness and Scanlon had only emerged at the committal as a consequence of cross-examination by counsel for another defendant, who had been discharged at committal.
I do not stay to consider why it may not be open to a trial judge to have regard to any such material though I doubt the validity of the submission. I am prepared to assume for present purposes that such material should not be taken into account in assessing whether the witness is hostile. I also put to one side the explanations which have been proffered by this witness at various times as to why he has made false statements to the police. For present purposes I assume that there is no cogent explanation for why the witness has failed to testify in accordance with his statement of 16 July 2002.
There is no substance in the contention that the Crown should be prohibited from cross-examining the witness in relation to those passages which the witness claimed he was uncertain or unsure about during the course of his evidence at the committal proceedings.
The Crown prosecutor alone bears the responsibility of determining whether a witness should be called for the prosecution. It is not for the trial judge to adjudicate upon the sufficiency of the prosecutor’s reasons for calling a witness. Where the witness has made an out-of-court statement which contains admissible evidence as to relevant facts it cannot be said that the Crown acts improperly in calling the witness who made the statement because there was a possibility or even a probability that the witness may not adhere to that statement.[12] Where the prosecutor may take the view that the witness, once on oath, will feel constrained to testify in conformity with his out of court statement, the principle in Blewitt to which I have referred in Ruling 9 has no scope for operation.[13]
[12]Hall v R [1986] 1 Qd R 462 at 466 and 474 approved by the High Court in R v Blewitt.
[13]See Footnote 2.
In Blewitt the witness could have been treated as intractably hostile in relation to the admission which the witness, in his out of court statement alleged that Blewitt had made. But the witness was called to give other relevant evidence. The prosecution was not precluded from then seeking to declare him hostile in relation to Blewitt’s alleged admission.
In R v Tadic & Gibb[14] the Court found that the principle in Blewitt had no application. The Court observed:
“…..Despite his unwillingness to give truthful evidence and his feigned, so it may be assumed, loss of memory, Jones said that his statement to the police was true and correct. Thus, if the matter had been pursued, although it was not, the Crown might (having expressed no opinion on the matter) have advanced its proof by the witness having adopted his statement notwithstanding that at the time of his giving evidence he said that he could not remember the events to which the statement referred.[15] In any event, Jones gave other relevant admissible evidence …”[16]
[14]Unreported, Victorian Supreme Court of Criminal Appeal per Crockett, Marks and Ormiston JJ 31 August 1993.
[15]See R v Alexander & Taylor[1975] VR 741.
[16]See Footnote 14 at 18.
The observations by Lord Widgery CJ in Mann v R[17] that it is open to the prosecution not to treat a witness as hostile before the Magistrate but to wait until the trial to see whether the witness will give evidence in accordance with his original statement and if the witness is still hostile, to seek permission from the trial judge to so treat him, is consistent with more recent statements of the principle.
[17](1972) 56 Cr App Rep 750 at 756.
In R v O’Brien the Court considered that the Crown should exercise its discretion and not call a witness where it is known that the witness is “intractably hostile”.[18]
[18][2001] 2 NZLR 145 at [21].
There is no material difference between the circumstances of the witness Duong Pham (Ruling 9)[19] and the witness who is the subject of the present application. It is not the purpose of the Crown to merely place before the jury evidence which was otherwise inadmissible.[20] The witness was called to give evidence about numerous relevant observations. The passages in dispute in his out-of-court statements were only a small part of that evidence. The Crown was bound to call the witness and in the course of his evidence have him testify as to all of his observations including those contained in the contentious passages.
[19]See Footnote 2.
[20]See Footnote 2 (Ruling 9)at [20]-[21].
The Crown is not prevented from seeking to lead evidence from a witness at trial because the witness at the committal claimed to be unable to remember certain events or expressed uncertainty about their occurrence if the Crown’s expectation is that the witness, in conformity with his out-of-court statements may acknowledge those contentious facts as true and correct. I assume without deciding that the principle in Blewitt may apply to a portion of a witness’s testimony where it is clear that the purpose of the Crown is to place inadmissible evidence before the jury,[21] that is to say, where the Crown has no ground to think the witness may testify as to that fact and seeks to introduce a prior inconsistent statement the truth of which will be denied. But the Crown is not precluded from seeking to elicit evidence of a fact where the witness has testified on a previous occasion that he is unable to remember or is uncertain about that fact.[22] Where the witness at trial maintains that he is unable to remember or is uncertain as to that fact the Crown may apply to have him declared hostile.[23]
[21]R v Adam [1999] 47 NSWLR 267; R v Thompson [1964] QWN 25; R v Hall [1986] 1 Qd R 462.
[22]See Footnote 18 O’Brien at [11], [20] and [21]; See Footnote 17 Mann.
[23]R v Sekhon (1992) 63 A Crim R 349; R v Tadic & Gibb Footnote 14; R v Williams [2001] 2 Qd R 442 at [73]; R v Hawkins [2003] SASC 419; R v O’Brien Footnote 14 at [20]-[21].
Whatever be the explanation for his feigned loss of memory, it is apparent that the witness is unwilling to truthfully answer non-leading questions put to him by the learned prosecutor. With the concurrence of all counsel, I propose to hold a voir dire so that the Crown may ascertain the witness’s attitude towards the passages of the witness statement which have thus far not been the subject of testimony. At the conclusion of the voir dire I will hear any further submissions which counsel wish to make as to the Crown’s application to have the witness declared hostile and, as to the extent to which the Crown should be given leave to cross-examine.
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