R v Lam (No 14)
[2005] VSC 288
•3 May 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: | 3 May 2005 | |
CASE MAY BE CITED AS: | R v Cuong Quoc Lam & Ors | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 288 | |
RULING NO. 14
Evidence – application by accused to exclude evidence admissible against co-accused on basis that its probative value against co-accused is outweighed by its prejudicial effect upon the accused.
Lies – Consciousness of guilt - Lie told by accused about identity of principal offender and knowledge of his conduct -–Other compelling and prominent hypotheses open— inference of consciousness of guilt not left to jury
Evidence – Inference that witnesses gave false evidence to assist the accused – Prejudicial effect upon accused.
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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:
Evidence of attempt to pervert the course of justice
Application was made on behalf of Hoang Tran to exclude evidence from the witness Colin France of a statement made by Hoang Tran to Mr France on 8 July 2002 that he needed to take time off work as he had to “speak to his mates so they could sort out their stories” (Depositions 3392).
A large number of witnesses have given false or incomplete evidence about their observations on 8 July 2002 outside the Salt Nightclub and at the river later on. Most of those witnesses are friends or acquaintances of one or more of the accused. The statement made by the accused Hoang Tran to Mr France, despite its ambiguous nature, if admitted into evidence could be viewed as providing an explanation as to how much of the false or incomplete evidence of friends of Hoang Tran came about. For this very reason, counsel for Hoang Tran some time ago foreshadowed that he would make the present application.
The prosecution has now stated that it does not intend to lead such evidence from Mr France and this meets the concern raised by counsel for Hoang Tran. Such an approach is consistent with the prosecution’s decision not to lead evidence that Mark Ung in his first statement to police gave a false account that Hoang Tran was in his car at the material time and that he did not go to the river. The general approach adopted by the prosecution is that evidence which could be characterised as an attempt to pervert the course of justice should not be introduced into the trial.
In the jury’s absence, I have heard evidence and I have been taken to material in the depositions from witnesses such as Paul Le, Paul Scanlan, Mark Ung and Duong Nguyen that they initially provided false accounts to police and that they were encouraged to do so. They are all friends of a number of the accused. Very fairly, the prosecution has not sought to adduce any such evidence in the trials of any of the accused. The introduction of such issues would be likely to distract the jury from its primary task and may have resulted in prejudice to some or all of the accused.
Application by Cuong Lam to exclude evidence admissible in the case of Hoang Tran
Application is now made by Cuong Lam to exclude other passages from the evidence of Colin France admissible only against Hoang Tran. The accused Hoang Tran told Mr France that he had been questioned by the police. Mr France asked him what had occurred. In his evidence Mr France said:
“He told me he saw the guy chopping at him with the sword. I asked him if he knew who that guy was. I asked him if he was a mate of his. He told me that he was not a mate of his, but a brother of an acquaintance.”
In a subsequent conversation some four days after the murder of the deceased, Mr France again spoke to the accused Hoang Tran. At that time Mr France had become aware that police had arrested two persons in relation to the murders. His statement reads as follows:
“It was the day after the first two people were charged with murder that I saw Hoang at work. He was in the produce department at Safeway, Braybrook. I said to him, ‘Which one was it, the older one or the younger one?’ Hoang replied that it was the 23-year-old. I was on my way for a break and I did not speak to Hoang about the murders after this.”
Counsel for Cuong Lam submits that in the exercise of my discretion I should exclude those passages from the evidence of Mr France as they are prejudicial to the accused Cuong Lam and have no or little probative value in relation to the accused Hoang Tran.
Mr Rochford, who appears for Hoang Tran, has quite properly conceded that he cannot argue that those passages have no probative value.
In Ruling No. 3[1] in this trial I considered an application on behalf of the accused Cuong Lam before the jury was empanelled that I should grant the accused Cuong Lam a separate trial on the grounds, inter alia, that there were passages in the video interview of the accused Hoang Tran which had little or no probative value and which were highly prejudicial to the accused Cuong Lam. In the course of the ruling I noted that a trial judge has the power to exclude evidence which is sought to be tendered by the prosecution in a joint trial against one co-accused on the ground that it is unduly prejudicial to another co-accused. This discretion arises as a consequence of the trial judge’s obligation to ensure a fair trial. Notwithstanding that discretion, I ruled that the passages, with some exceptions, in the video interview of the accused Hoang Tran, had sufficient probative value to warrant their inclusion and that it would not be appropriate, in the exercise of my discretion, to exclude such passages from his video interview.
[1][2005] VSC 277.
A number of those passages deal with subjects which overlap with the issue which arises on the present application. Objection had been taken to questions and answers 130 to 135 of Hoang Tran’s video interview with police investigators concerning his conduct and his observations outside the Salt Nightclub while he was running from the nightclub in Daly Street and Chapel Street. Those observations included some observations made of the accused Cuong Lam. Objection was also taken to passages in the video interview of Hoang Tran in which he set out his knowledge of Cuong Lam and his familiarity with him. Objection was also taken to passages of Hoang Tran’s video interview where he spoke of his recollections of whether Cuong Lam was present when the deceased James Huynh was attacked with swords by various persons.
Further objection was taken to passages in his video interview in which he again spoke of his familiarity with Cuong Lam and his knowledge of the car which Cuong Lam drove and his sighting of Cuong Lam at various nightclubs. Objection was taken to an incident which occurred shortly after the murder of the deceased James Huynh in an incident near the Como Hotel in Chapel Street. Objection was taken to those passages in the video interview in which Hoang Tran described Cuong Lam alighting from a red car armed with a weapon and who,with others who were also armed with weapons, attacked persons who had approached Hoang Tran.
Objection was also taken to Hoang Tran’s statements in his video interview concerning his knowledge of an incident at the Odeon Nightclub on 4 July 2002 which the Crown relies upon as a motive for the commission of the offences presently before the court. Objection was also taken to phone calls which Hoang Tran referred to in his video interview between himself and Cuong Lam, made during the early morning of the day on which these offences are alleged to have been committed and on the following day.
With some qualifications, I found that all of those passages to which objection had been taken, had a probative value in the case mounted by the prosecution against Hoang Tran. Furthermore their probative value was such that it did not warrant excluding them in the exercise of my discretion, notwithstanding the possible prejudice that might enure to Cuong Lam.
In the alternative Counsel for Cuong Lam had submitted that in the event that those passages were not excluded, I should grant Cuong Lam a separate trial.
I ruled at that time that I would not grant a separate trial but would revisit the issues at the conclusion of the evidence.
The prosecution seeks to rely on the passages in Mr France’s statement as bearing upon the Crown case in a number of material ways. First, as I understand the Crown submission, it is argued that the fact that Hoang Tran may have in his statements to Mr France identified Cuong Lam as the person who was chopping at the deceased at the intersection of Chapel Street and Alexandra Avenue is material because the Crown must establish that the acts of Hoang Tran as a principal in the second degree were acts which aided and abetted one of the named principals in the first degree, one of whom is alleged to be Cuong Lam. For that reason alone, in my opinion the statements to Mr France should be admitted into evidence. If the jury took the view that would be open to them, that Hoang Tran was in fact referring to Cuong Lam in the two passages to which I have referred, he was identifying a named principal in the first degree as a person whom he observed inflicting injuries which may have caused the death of the deceased at a time when he (Hoang Tran) was present.
The Crown also relies on these passages in Mr France’s statement as relevant to the question of Hoang Tran’s intent and as relevant to an element of aiding and abetting, namely whether Hoang Tran, as a principal in the second degree, performed an act which may have encouraged a principal in the first degree to commit this offence.
As I understood Mr Dean’s submission, he contended that the relationship between Hoang Tran and Cuong Lam was relevant to these issues and should be considered in conjunction with the following facts:-
Hoang Tran’s knowledge of the events at the Odeon Nightclub a few days earlier, being an incident which, it appears, involved the accused Cuong Lam; the assault in the Salt Nightclub in the early hours of the morning of 8 July, which the jury may conclude involved both the accused Cuong Lam and the accused Hoang Tran; his observations of Cuong Lam armed and chasing some of the deceased in Daly Street and Chapel Street; his assertion in his video interview that he was running near Cuong Lam whilst chasing the deceased; his call on the mobile phone to Cuong Lam on the morning of 8 July, and a further phone call to Cuong Lam the following day and the incident outside the Como Hotel to which I have referred.
In my opinion, as I ruled in Ruling No.3,[2] the evidence of that association or relationship has probative value in the context of the Crown case against Hoang Tran as I have just summarised it. I reject the application by Cuong Lam to exclude the evidence of Mr France.
[2]See Footnote 1.
Lies by Hoang Tran – whether capable of supporting an inference of a consciousness of guilt
Finally, the Crown relies upon the statements made by Hoang Tran to Mr France as evidence which demonstrates that Hoang Tran lied to the investigators during the course of his video interview when he told investigators that he did not know the identity of any of the persons who inflicted injury upon the deceased at the corner of Chapel Street and Alexandra Avenue.
In the course of argument I explored with counsel for the prosecution the fact that in the event that the jury treated Mr France’s evidence as an admission by Hoang Tran that he did know the identity of one of those persons and that he knew that person to be Cuong Lam, there were a number of hypotheses, particularly in the context of a video interview in which he freely acknowledged that he observed Cuong Lam outside the Salt Nightclub and in the course of the chase armed with a sword and wearing white glove, as to why he would deny that he knew the identity of any of the persons who caused injury to the deceased James Huynh.
In my view, there are a number of competing hypotheses that may explain such a false denial if it be so viewed. One is that he simply wished to avoid getting his acquaintance Cuong Lam into trouble. Another may be that he feared Cuong Lam. Another may be that he recognised that if he acknowledged that an acquaintance, being the brother of a friend of his, was involved in the assault which caused death, t investigators may consider it more likely that he aided and abetted such conduct. In my view, it is impossible to ascribe to any of those hypotheses the view that one of them is a compelling or prominent one.
As I indicated to the Crown this morning in the course of further submissions, I propose to approach the question of whether or not lies told in a record of interview can support a consciousness of guilt on the basis that a lie should not be left to the jury as supporting such an inference, unless such an inference is a compelling and prominent hypothesis. In my view, that particular lie, if it can be so viewed, does not meet that test and should not be left to the jury as evidence of a consciousness of guilt. However, if after the evidence of Mr France has concluded, it is open to the jury to conclude that it was a lie, the prosecution may rely upon such an untruth as going to Hoang Tran’s credit.
I will, in due course hear argument from all counsel as to what directions should be given to the jury in the event that the jury is to receive instructions that some lies told by accused are capable of supporting an inference of a consciousness of guilt whilst other lies go merely to the credit of an accused.