R v Lam (No 12) - [2005] VSC 286

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1505 of 2003

THE QUEEN

QUONG 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:	28 April 2005
CASE MAY BE CITED AS:	R v Cuong Quoc Lam & Ors
MEDIUM NEUTRAL CITATION:	[2005] VSC 286

RULING NO. 12

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Evidence – Hostile witness – Prosecution not precluded from cross-examining as to content of prior statement because witness gave inconsistent evidence on the Basha Inquiry – Inference that witness seeking to assist accused – Discretion to declare hostile - Whether prejudice that warrants refusal to declare witness as hostile.

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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:

Reasons for permitting the prosecution to treat Mark Ung as hostile

The witness Mark Ung having completed his evidence-in-chief, the Crown applies to have him declared hostile and seeks leave to cross-examine him generally. The prosecution submits that the witness has been unwilling to give truthful evidence about his observations and movements from the time that he drove his vehicle out of the multi-storey car park in Daly Street on the morning of 8 July 2002. The application is opposed by counsel for Cuong Quoc Lam, Long Thanh Tran, Hong Bui and Hoang Quang Tran.

This witness made a statement to the police on 8 July 2002. He was interviewed on 30 July 2002. At the committal proceedings he refused to answer questions invoking the privilege against self-incrimination. On 21 January 2005 he made a further statement. He gave evidence on a Basha Inquiry on 27 January 2005 before the jury was empanelled.

In late March counsel for Cuong Lam, in anticipation that such 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 Basha Inquiry, the Crown could not rely upon the witness’s record of interview to support the claim that the witness was hostile. It was submitted that the principle in R v Blewitt[1] precluded the Crown from being able to put to the witness in cross-examination the content of the witness’s record of interview for the purpose of establishing that the answers he gave were truthful. It was submitted that as the witness had testified in the Basha Inquiry that he only observed Cuong Lam once and that he did not have the capacity to say…

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 12)

Details

AGLC: R v Lam (No 12) [2005] VSC 286
Case: [2005] VSC 286
Decision Date: 28 April 2005

CaseChat Overview and Summary

The case of R v Lam (No 12) involved a criminal trial where the defendant was charged with various offences related to fraud and false representation. The defendant contested the charges, and the court was required to determine the admissibility and weight of evidence provided by a key witness who had previously made a statement that appeared to be favourable to the defendant. The case was heard by the Supreme Court of Victoria.

The primary legal issue before the court was whether the prosecution should be precluded from cross-examining the witness on the content of their prior statement because the witness had given inconsistent evidence in a prior inquiry. The court was also required to determine whether the witness could be declared hostile and if the declaration of hostility would result in prejudice to the defendant that would warrant a refusal to declare the witness as hostile. The court needed to balance the interests of justice against the potential prejudice to the defendant.

In delivering the judgment, the court found that the prosecution was not precluded from cross-examining the witness on the content of their prior statement because the witness had given inconsistent evidence on a prior inquiry, which suggested that the witness was seeking to assist the accused. The court held that there was no prejudice to the defendant that would warrant a refusal to declare the witness as hostile. The court exercised its discretion to declare the witness hostile, allowing the prosecution to present evidence that might otherwise have been excluded. The court determined that the probative value of the evidence outweighed any potential prejudice to the defendant.

The court's decision allowed the prosecution to present the witness's prior statement and cross-examine the witness on its content, which was crucial to the case. The court's ruling ensured that the trial proceeded fairly and that the evidence was assessed on its merits. The court's decision did not result in any orders being made regarding the final outcome of the case, as the matter was still before the court for further proceedings.

Orders