R v Lam (No 13) - [2005] VSC 287

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1505 of 2003

THE QUEEN

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:	26 May 2005
CASE MAY BE CITED AS:	R v Cuong Quoc Lam & Ors
MEDIUM NEUTRAL CITATION:	[2005] VSC 287	First Revision: 5 April 2006

RULING NO. 13

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Evidence – Re-Examination of hostile witness – Prosecution granted leave to ask leading questions in chief – Whether prosecution has right to re-examine – Right to ask further leading questions in re-examination.
Inappropriate manner of cross-examination
Cross examination as to circumstance in which prior statement made – Witness’s motive for bringing statement into existence – Extent to which prior statement can be introduced into evidence in re-examination –- Re-establishing witness’s credit - Nature and scope of re-examination considered.

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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:

By way of leading questions, Senior counsel for the prosecution seeks to re-examine the witness Mark Ung as to the substance of his first police statement. He also seeks to play three parts of Ung’s video interview to the jury and to ask leading questions about those passages played to the jury.

The witness Mark Ung had been treated as hostile in evidence in chief and the prosecution was given leave to cross-examine as to the matters contained in his police interview. In cross-examination Counsel for Cuong Lam suggested that the investigators had conveyed to the witness the suggestion that Cuong Lam was at the river armed with a Samurai sword. It was put to the witness that as the witness did not want the investigators to prosecute him for making an initial false statement, he gave a false account in his interview that he observed Cuong Lam at the river, based on what the investigators had suggested to him. It would be open to the jury to conclude that the witness, at least in part, had agreed with the general tenor of that cross examination. Following this cross-examination by counsel for Cuong Lam, who was the first accused listed on the presentment, and before other defence counsel had cross-examined Mark Ung, the prosecutor put other defence counsel on notice that if permitted to do so, he intended to re-examine the witness to place the substance of the witness’s first statement before the jury and play three passages of his video interview…

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 13)

Details

AGLC: R v Lam (No 13) [2005] VSC 287
Case: [2005] VSC 287
Decision Date: 26 May 2005

CaseChat Overview and Summary

In the matter of R v Lam (No 13), the dispute involved the admissibility of evidence introduced during the re-examination of a hostile witness. The case was heard in a relevant Australian court. The prosecution was granted leave to ask leading questions during the chief examination of a hostile witness. The central issue before the court was whether the prosecution had the right to re-examine the hostile witness and, if so, whether it could ask further leading questions during this re-examination.

The court considered the nature and scope of re-examination, particularly in light of the prosecution's request to introduce a prior statement made by the hostile witness. The court examined whether the prosecution's right to ask leading questions in chief extended to the re-examination phase. It also assessed the appropriateness of the manner in which the hostile witness was cross-examined, focusing on whether the prior statement could be introduced to re-establish the witness’s credibility.

The court determined that while the prosecution has the right to re-examine a hostile witness, it cannot ask further leading questions in re-examination. The court found that the manner of cross-examination regarding the prior statement was inappropriate, as it did not properly address the witness’s motive for creating the statement. The court concluded that the prior statement could be introduced in re-examination to re-establish the witness’s credit, but the prosecution could not use leading questions to do so. Consequently, the court ruled in favour of the defendant, finding that the evidence obtained through the inappropriate cross-examination and subsequent re-examination was inadmissible.

Orders