R v Lam (No 14) - [2005] VSC 288

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:	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…

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 14)

Details

AGLC: R v Lam (No 14) [2005] VSC 288
Case: [2005] VSC 288
Decision Date: 3 May 2005

CaseChat Overview and Summary

The case of R v Lam (No 14) arose before the court as a criminal proceeding in which the accused, Lam, sought to exclude evidence that was admissible against a co-accused. The nature of the dispute was centred on the admissibility of certain evidence in the context of a criminal trial, specifically, evidence that was admissible against the co-accused but which Lam argued should be excluded on the basis that its prejudicial effect upon him outweighed its probative value. The case was heard in a higher court within the Australian judicial system, where the accused's application was considered against the backdrop of established legal principles concerning the admissibility of evidence and the potential for prejudice.

The legal issues that the court was required to decide were primarily concerned with the admissibility of evidence that was relevant to the co-accused but potentially prejudicial to Lam. The court had to consider whether the probative value of the evidence against the co-accused was sufficiently significant to outweigh the prejudicial effect it might have on Lam, and whether there were other compelling hypotheses that could explain the accused's actions, thereby weakening the inference of consciousness of guilt. Additionally, the court needed to assess whether there was a prejudicial effect upon Lam if it were to be inferred that witnesses had provided false evidence to assist him.

The court, in its reasoning, examined the evidence in question and the potential impact it could have on Lam. It noted that the evidence was indeed probative against the co-accused, but it also found that the prejudicial effect upon Lam could be significant. The court held that the accused's lie about the identity of the principal offender and his knowledge of the co-accused's conduct did not necessarily lead to an inference of consciousness of guilt, given that there were other hypotheses that could explain the accused's actions. Furthermore, the court found that there was no basis for an inference that witnesses had given false evidence to assist Lam. The court concluded that the prejudicial effect on Lam would be substantial if such an inference were drawn, and thus the evidence in question should be excluded from the trial against Lam.

Orders