R v Lam (No 12)
[2005] VSC 286
•28 April 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1505 of 2003
| THE QUEEN |
| V |
| 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 where he saw him, the Crown was precluded from seeking to establish the content of his record of interview in which he asserted that he observed Cuong Lam jogging along Alexandra Avenue carrying a sword and travelling in an easterly direction towards the river. Similarly, it was submitted that as the witness had testified on the Basha Inquiry that Cuong Lam at no stage was in his motor vehicle (that is Mark Ung’s vehicle), it would be impermissible for the prosecution to seek to cross-examine the witness as to the passage in his record of interview in which the witness had stated that he did not look at the person who got into his motor vehicle and sat in the passenger seat and was unable to say whether or not it was Cuong Lam.
[1](1988) 80 ALR 353.
I had the benefit of observing this witness in the course of the Basha Inquiry. The nature of the cross-examination of this witness by counsel for Cuong Lam in the Basha Inquiry, his evidence, and the manner in which his assent was obtained to various propositions put to him suggested a disposition to be less than truthful, in particular in relation to the matters relied upon by counsel for Cuong Lam in his written submissions. But the prosecution was entitled to proceed upon the assumption, that what the witness had said to investigating police in his record of interview was the truth and that he may testify to that effect, before the jury at least, in response to leading questions.
The witness’s testimony on the Basha Inquiry does not provide a basis upon which the prosecution should be precluded from making application to have the witness declared hostile. For the reasons that I have given in Ruling No. 9 and 11[2] respectively such a submission cannot be sustained.
[2][2005] VSC 283 and [2005] VSC 285.
It was further submitted by counsel for Cuong Lam that the witness’s evidence in chief was consistent with the content of his statement made on 21 January 2005 and his evidence on the Basha Inquiry and no ground existed upon which to find the witness hostile. It was said that there were minor variations between his statement, the evidence he gave at the Basha Inquiry and his testimony before the jury but they were of no consequence. Counsel for Long Thanh Tran, Hong Bui and Hoang Quang Tran supported that submission. The submission that the witness had in substance “sworn up to” his previous statement in which he adopted the content of his interview was not pressed; nor could it have been. It had no merit.
The witness had participated in a record of interview with investigating police on 30 July 2002 in which he detailed certain significant observations which were not contained in his statement and which were not the subject of any evidence by him on the Basha Inquiry. The witness adopted his statement of January 2005 as his evidence-in-chief at the Basha Inquiry in which he said that what he had told the police in his interview was the truth. In the interview he told police that he and a friend, Alan Sam, had rushed to the aid of Hoang Tran when the fight broke out in the Salt Nightclub. He further told police that after Hoang Tran was escorted out of the nightclub by bouncers, he, and Hoang Tran and other friends stood outside the Salt Nightclub. He told police that whilst they were outside Hoang Tran had spoken in angry and derogatory terms about the person who had hit him inside the nightclub. Hoang tran was then bleeding from his lip. The witness told police that he was focusing on Hoang Tran who was a bit drunk and he was concerned that anything could happen. He told the police that when the fight broke out in Daly Street people started running towards Legends and Hoang Tran started running too. He told police that after he got his car from the multi-storey car park he drove to the intersection of Daly and Chapel Streets and upon turning left saw his friends Paul Le, Alan Sam, Vui Truong. They all got into his car. They told him that Hoang Tran was further up Chapel Street towards Alexandra Avenue. As he drove north he saw a group of European people on the left side of Chapel Street. He saw a lot of people who had crossed the road on to the right hand side of Chapel Street running further ahead. He told investigators that when he got to the intersection of Chapel Street and Alexandra Avenue he saw people running around the corner into Alexandra Avenue. He turned right into Alexandra Avenue and stopped his vehicle to let his three passengers out on the river side. At that time he saw a group of about three people running further down on the right hand side of Alexandra Avenue. He then made a U-turn. As he was doing the U-turn or as he had come to a stop, he observed a couple of people crossing the road including Cuong Lam who was jogging across the road heading in an easterly direction. Cuong Lam was holding a Samurai sword. He explained to the investigators that his car lights are pretty high. He told investigators that whilst waiting on the southern side of Alexandra Avenue he observed Hong Bui and Long Tran’s cars pull up behind him. He then described how three unknown persons got into his motor car. The first had a sword and was wearing a glove which had blood on it. He did not see the face of the third person who sat in the front passenger seat. He did not look at him. He told investigators he could not say whether or not it was Cuong Lam. Upon their direction he then drove away turning left into Chapel Street and followed their instructions.
Counsel for Hoang Tran submitted that until such time as the witness on a voir dire testified that the content of his record of interview was true and correct, the Crown could not rely upon it as a basis upon which to have the witness declared hostile.
Counsel for Hoang Tran further submitted that I should, in determining whether to accede to the prosecution’s application, take into account that this witness and the previous witness, one Paul Le, who was the subject of Ruling 11, [3]were two of Hoang Tran’s close friends.
[3]See Footnote 2.
Mr Rochford submitted that in the event that the witness is treated as hostile and the Crown is permitted to cross-examine him, the prosecution should make plain to the jury that it was not suggesting that the witness had left anything out in his testimony that he had previously told police relating to the accused Hoang Tran. This submission is premised on an unsound factual basis. It is evident from the summary of the record of interview which I have set out that such a suggestion would not be correct. [4] It is also significant that the jury will probably conclude that this witness has always omitted from his account any observations which he made outside the Salt Nightclub or at the murder scene which may have implicated any of the accused.
[4]Since the witness Ung concluded his testimony, counsel for Hoang Tran by leading questions, elicited from another witness, Vi Truong, that Mr Ung was in his car observing the murder scene whilst those who had alighted from his car, namely Paul Le, Vi Truong and Alan Sam were in the company of the accused Hoang Tran within about 10 metres of the deceased lying on the nature strip in Alexandra Avenue. The learned senior prosecutor has generously stated that he will not suggest in his closing address to the jury that this witness omitted anything from his account to assist Hoang Tran. The prosecution cannot be expected to make the positive concession which counsel for Hoang Tran has requested. [4]
Mr Rochford further submitted that even though no prejudicial evidence may emerge as a consequence of the witness being declared hostile I should take into account in determining whether to grant the application, that the jury is likely to conclude that any reluctance by the witness to be truthful is borne of a desire to assist his friends and in particular the accused Hoang Tran. He submitted that to allow the witness to be treated as hostile would work prejudice to his client because, as the jury knew, the present witness, Ung and the previous witness, Le, were close friends of Hoang Tran and they had gone to the river to look for him. In substance it was submitted that for the prosecution to be permitted to cross-examine Mr Ung, and for the jury to be told the witness was potentially unreliable, would make it likely that the jury would conclude that he was trying to protect Hoang Tran by giving false evidence.
I do not doubt that where a trial judge is satisfied that a witness is hostile to the prosecution, there may nonetheless be circumstances in which, in the exercise of the trial judge’s discretion, an application to declare the witness hostile should be refused if it were considered that as a consequence, prejudice to an accused would arise from such a course, which outweighed the probative value to the prosecution case of any evidence that the witness may thereafter give. The prejudice here complained of is that the jury may conclude that the witness is favourably disposed towards the accused. This will often be an inference open where a prosecution witness is declared hostile. It is not a reason in the present circumstances that warrants the refusal of the Crown’s application.
Following the submissions of counsel I indicated that the unfavourable view of this witness which I had formed in the Basha Inquiry had been reinforced by his testimony before the jury. I noted that the witness had claimed to have seen nothing of any consequence whilst he was driving his vehicle in Chapel Street or Alexandra Avenue or was stationary in the vicinity of the murder scene at the intersection of Alexandra Avenue and Chapel Street notwithstanding that many witnesses much further removed from the murder scene than was this witness were able to make relevant observations. I referred to the fact that the witness had, under guise of saying that he could not remember, sought to avoid giving testimony as to his observations of matters which may have directly or indirectly implicated an accused. The witness’s demeanour and the substance of his evidence demonstrated that he was hostile to the prosecution. That said, I considered it appropriate that there should be a voir dire to ascertain the witness’s present position in relation to his record of interview as he had failed to testify in relation to many of the observations which he had detailed in his record of interview.
After a short voir dire, in which the witness stated that what he had said to investigating police during the course of his record of interview was the truth, I stated that I was satisfied the witness was hostile. I gave the prosecution leave to cross-examine the witness but confined the examination to the matters contained in the witness’s record of interview.
As the matters arising from his record of interview are sufficiently probative the exercise of a discretion to preclude the Crown from leading such evidence would not be warranted. No counsel pointed to any prejudicial evidence, as the term is explained by Gleeson CJ in Festa v R[5], that would emerge if the witness were, by leading questions, examined as to the truthfulness of the content of his record of interview. Apart from the submission by Mr Rochford as to the risk that the jury may consider that the witness’s false or incomplete account was designed to assist his client, no other basis was identified that would justify a refusal to permit the prosecution to treat the witness as hostile.
[5](2001) 208 CLR 593 at 602-603.
One of the features of this trial is that numerous witnesses have been called by the prosecution whom the jury will regard with suspicion because they testified that they made no relevant observations or heard nothing in circumstances where the jury would have expected them to do so. Some of those witnesses were, upon application by the prosecution, treated as hostile, but many were not.
The jury has heard from numerous independent witnesses as to the fact that a number of persons were seen outside the Salt Nightclub armed with swords or knives, some of them being identified as accused. The independent witnesses have identified other accused outside the nightclub in the immediate vicinity of where these observations were made. A number of independent witnesses have testified that a group of men which included some of the accused, ran towards the deceased’s group when they came out of Almeda Crescent. As to events at the river, numerous independent witnesses had given evidence as to their observations and what they heard from a considerable distance away from the murder scene. They have testified as to the noise of angry men in Alexandra Avenue and the sounds of cars speeding away, as to a group of five or so persons seen standing around the body of the deceased James Huynh, as to cars parked in the immediate vicinity of his body near the bus stop, as to the movements of those cars, some of which are driven by accused, and as to their observations of people running on the roadway or the river bank. Many of these observations are made at a time when, on the accuseds’ own admissions in their records of interview, they are present at, or in the vicinity, of the murder scene.
The prosecution is still in the process of calling a number of the accuseds’ associates and friends who were in the accuseds’ company outside the Salt Nightclub or who went to the vicinity of the murder scene. Despite these associates or friends being in a position where it might be expected that they would have heard and observed the same things that have been deposed to by the independent witnesses, the substance of their testimony has generally been that they did not see or hear these things. They saw and heard nothing that implicated any accused.
I observed during the course of argument that the jury may conclude that many of the friends and associates of the accused, including those that have been treated as hostile, failed to give truthful evidence of their observations outside the Salt Nightclub or on Alexandra Avenue. It will not have gone unnoticed by the jury that there has not been any challenge to the claim of these witnesses that they did not see or hear these events occur. Only where the prosecution was able to demonstrate that a witness was hostile has their account to investigators, incomplete as it generally was, been placed before the jury. The jury will be aware of the glaring inconsistencies between the evidence given by these witnesses and the evidence given by the independent witnesses.
The motivation for such false evidence may be a desire on the part of the witness to protect himself or to protect someone unnamed or to protect one or more of the accused. As no suggestion has been made in cross-examination to any of these witnesses that they have omitted observations or given false evidence to protect themselves, there is a risk that the jury will conclude that these persons have given a false or incomplete account to protect one or more of the accused. This does not provide a valid basis upon which to refuse the prosecution’s application. It amounts to the proposition that where a large number of an accused’s friends give false evidence they should not be treated as hostile lest the jury think they are trying to help the accused.
It is entirely a matter for defence counsel how they determine to approach each witness’ testimony. I do not question the forensic judgment made by defence counsel not to challenge such false or incomplete accounts given by any of these witnesses. But the fact that no challenge is made in cross-examination as to any aspects of the witness’s false or incomplete account is likely to increase any risk that the jury will conclude that the witness was seeking to protect the position of the accused and that the false account was given with the concurrence of the accused. The course followed by counsel for Hoang Tran illustrates the danger.
Mr Rochford did not suggest to Mr Ung, Mr Le or Mr Sam that their accounts were in any way false or incomplete. In particular, he did not put to any of them the observations of Vi Truong which he subsequently elicited as the truth, that Le, Vi Truong and Sam were in the company of Hoang Tran, in close proximity to the deceased whilst Ung observed from his car. The failure to do so is calculated to increase any risk that the jury may think such evidence as Le, Ung and Sam gave was intended to assist Hoang Tran.
I have in the course of argument conveyed my view to counsel that whilst there may be a sound forensic basis for declining to challenge such witness’ testimony, cross-examination of such witnesses to demonstrate the manner in which their testimony may be false and why that is so, would go a long way towards discouraging any view amongst the jury that the witness was giving a false account to protect the accused. The cross-examination by counsel for Hong Bui of the witness Vi Truong, in my view, effectively achieved that very objective in relation to his client. Defence counsel can have little ground to complain about such a jury perception if they refrain from any challenge as to such witnesses’ accounts.
I have indicated to all defence counsel that if upon reflection, they wish to have the witnesses Scanlon, Le, Ung, Sam or Vi Truong recalled to enable further cross-examination I would permit such a course.
The jury has been instructed as to how it should assess the testimony of witnesses treated as hostile. They will be given further directions to the effect that their verdict must be based upon the evidence which has been given and that it is impermissible for them to speculate about matters about which the witness has not testified. They will again be given directions that they are not to speculate as to the motive which a witness may have for giving a false or incomplete account.
I will at the conclusion of the evidence hear further submissions from counsel as to whether any other directions may be appropriate to address the risk that the jury may regard such witnesses who have given false or incomplete accounts as motivated by a desire to protect the accused.
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