R v Lam (No 15)

[2005] VSC 289

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:	10 May 2005
CASE MAY BE CITED AS:	R v Cuong Quoc Lam & Ors
MEDIUM NEUTRAL CITATION:	[2005] VSC 289	First Revision:  5 April 2006

RULING NO. 15

Evidence – Cross-examination as to collateral issue – Bias of investigator against accused – Allegation that investigator encouraged prosecution witness to give false evidence – Nicholls v R;  Coates v R (2005) 219 CLR 196 applied – Evidence going to bias or interest of prosecution witness.

Evidence of prior inconsistent statement – Prejudicial effect of content of statement – Prosecution precluded from proving prior inconsistent statement.

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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:

Collateral evidence of Detective Gale

1. The present ruling concerns “collateral evidence” introduced during the cross-examination of Detective Sergeant Gale by counsel for Cuong Lam which relates to Detective  Gale’s dealings with the witness Mark Ung on 30 July 2002.

1. Detective Gale had been called by the prosecution to prove a written statement made by the accused Hoang Tran and to produce certain video recordings made at premises in Chapel Street on the morning of 8 July 2002.

1. In cross examination by counsel for Cuong Lam, it was put to Detective Gale that the witness Mark Ung had never told the investigators before his video interview that he saw Cuong Lam at the river.  It was suggested that Detective Gale and other investigators had told Mark Ung before his interview that they believed Cuong Lam had been at the river so that Ung would adopt that allegation and say in his interview that he saw Cuong Lam at the river.  Detective Gale was further cross-examined as to the absence of any record in his notes of what Mark Ung was alleged to have said before the interview.

1. In re-examination Detective Gale testified as to a conversation with the witness Ung which had been set out in Detective Gale's statement in which Ung, prior to his record of interview had, inter alia, narrated his observations of Cuong Lam at the river and that in his interview, Ung had referred to what he had earlier told the investigators.

1. The witness Mark Ung has been the subject of two previous rulings.  He was treated as hostile in the course of evidence-in-chief.  The prosecution was permitted to ask him leading questions in evidence-in-chief and re-examination in relation to the content of his video interview made on 30 July 2002.  The witness in evidence-in-chief and re-examination testified that he had told the police the truth when he said in his interview that he had observed the accused Cuong Lam jogging across the road at the river armed with a sword.

1. In cross-examination it was put to Mark Ung that prior to the interview with the police, the police told him what they believed Cuong Lam had done.  It would be open to the jury to view the witness as having agreed with the suggestions that he did not say anything to the police about such observations before his video interview, and that he told the police that he saw Cuong  Lam at the river because he knew that was what the police wanted him to say. In cross examination it was put to Mark Ung that he was motivated by the fact that he had made an initial statement to the police that was false and to avoid prosecution for perjury arising from that false statement he was anxious to appease the investigators and tell them what they wanted to hear.  The jury may take the view that the witness in large measure agreed with these propositions when they were put to the witness in cross-examination. 

1. If, as it appeared to me, the cross examination of Detective Gale, to which no objection had been taken, was to be justified as a collateral attack alleging bias of the investigator, a direction to the jury  would be necessary dealing with the limited use that could be made of  his evidence of his conversations with Ung. Counsel for Cuong Lam eventually accepted that the cross examination should be treated as a collateral attack on Detective Gale. Counsel rested the cross-examination upon the ground that he was seeking to attack the bona fides of the investigators whom he submitted were biased against his client and that their bias affected Mark Ung.  The bias of the investigators, it was said, led them to encourage Ung to make a false claim.  Although it was not stated in terms, I understood the submission to be that the witness Ung had a motive to give false evidence against Cuong Lam and because the investigators were biased against Cuong Lam, they had sought to use Mark Ung as a means of providing false testimony against Cuong Lam.

1. Such alleged circumstances are not dissimilar to those which arose in Nicholls v R and  Coates v R[1] where the defence had sought to call evidence from a witness that the principal Crown witness had admitted to him that he had been encouraged by investigators to make false allegations against the appellants.

   [1](2005) 219 CLR 196; (2005) 213 ALR 1.

1. The prohibition upon pursuing a collateral matter which relates only to the credit of a prior witness is not to be relaxed merely because the question of credit is closely connected to important facts in issue.  The evidence adduced is to be treated as admitted on the basis that it goes to the question of the bias or interest of Ung and the investigators.  The evidence of any conversation between Ung and the investigators as to what Cuong Lam is alleged to have done is not evidence of the truth but is relevant to the jury's assessment of the credit of Ung.  The jury may use the evidence as throwing light upon whether the investigators were biased and whether Ung was encouraged to give false evidence against Cuong Lam which, in turn, may bear upon what weight, if any, the jury will give the evidence of Ung as to his observations of Cuong Lam.

1. Defence counsel has stated that he intends to pursue the same line of cross-examination with other investigators.  I will permit both parties to adduce such further evidence as they see fit as bears upon this collateral issue and I will give the jury appropriate direction as to the limited way in which the evidence may be used.

Prior Inconsistent statement of Paul Le

1. The present witness, Sergeant Ridley, who is in the course of evidence, was an investigator who interviewed the witness Paul Le. He gave a detailed account of his observations of Cuong Lam and others at the river.  Le denied during his testimony before the jury that he ever told investigators of his observations of Cuong Lam at the river.  As I have indicated to the Crown, I will not allow the prosecution to lead evidence from Sergeant Ridley as to the prior inconsistent statements made from Paul Le.  The statement would not be introduced as evidence of the truth.  Its probative value would be confined to discrediting the witness.  It would be highly prejudicial to Cuong Lam if it were introduced for the limited purpose of establishing a prior inconsistent statement. In the exercise of my discretion the statement should not be introduced into evidence.

1. It follows that defence counsel will not be entitled to suggest to the jury in his closing address that the prosecution failed to lead evidence of a prior inconsistent statement from Sergeant Ridley or otherwise failed to lead evidence from Sergeant Ridley which bore upon the evidence of Mr Le.