R v Lam (No 16)
[2005] VSC 290
•16 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: | 16 May 2005 |
CASE MAY BE CITED AS: | R v Cuong Quoc Lam & Ors |
MEDIUM NEUTRAL CITATION: | [2005] VSC 290 |
RULING NO. 16
Application by accused Long Tran that passages from interview of co-accused Cuong Lam be excluded – Whether prejudice to accused outweighs its probative value in case of co-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:
Application has been made by counsel appearing for Long Tran to have certain passages from the video interview of the accused Cuong Lam and a passage from his statement to investigators excluded on the ground that it has little or no probative value in the trial of Cuong Lam, but is capable of producing prejudice in the trial of Long Tran.
This application is made as a consequence of a ruling that I have given earlier in this trial,[1] in which I ruled that an accused may apply to have evidence from a co-accused’s video interview excluded on the ground that its probative value is minimal to the Crown case against the co-accused but that the admission of such evidence would cause real prejudice in the trial of the accused.
[1]Ruling No. 3 [2005] VSC 277.
Counsel for Cuong Lam supports this application and joins in the submission that such evidence has little or no probative value in the case of Cuong Lam.
In Cuong Lam’s statement to investigators he said:
“People standing out the front of Salt had weapons and I recall seeing people holding poles, bottles and knives. There was also a car out the front of Daly Street on the north side of it and its boot was open. People were grabbing swords, poles, banners and knives from the boot.”
In his video interview at questions and answers 1081 to 109, Cuong Lam narrated these observations in some detail explaining that a group of people grabbed weapons from the boot of the car, that he did not recognise the persons who had seized the weapons and that when he gave chase in Daly Street he ran close to the parked car and could not then say where the persons were that he had previously seen obtain these weapons.
On 12 April 2005 the prosecution filed a further outline of its case, which has been the subject of argument during the course of various applications and submissions subsequently made during the trial. In relation to Count 1 the prosecution said at paragraph 4 of that document that Cuong Lam, being a principal offender in the first degree, performed the following act which might be regarded by the jury as a substantial cause of the death of the deceased:
“Striking the deceased James Huynh at the intersection of Chapel Street and Alexandra Avenue with a samurai sword.”
In relation to the accused Hung Van the prosecution alleges that he was a principal offender in the first degree and performed the following acts which the jury might regard as a substantial cause of the death of the deceased:
“Striking the deceased James Huynh in Daly Street with a samurai sword, striking the deceased James Huynh at the intersection of Chapel Street and Alexandra Avenue with a samurai sword; kicking the deceased James Huynh at the intersection of Chapel Street and Alexandra Avenue.”
The document states that it is the prosecution case that the three principal offenders in the first degree were acting in concert and liability is made out either on the basis that each of them did an act which was a substantial cause of death or were acting in concert with those who did the act or acts. The third principal referred to in this passage is the accused David Nguyen.
In relation to Counts 2 and 3, the prosecution alleged that the accused Cuong Lam and Hung Van performed the following acts which the jury might regard as a substantial cause of the death of the deceased Nam Huynh and Viet Huynh. In relation to Hung Van it said:
“Confronting the two deceased in Daly Street whilst armed with a samurai sword; striking James Huynh in Daly Street with a samurai sword in the presence of the two deceased; pursuing the two deceased into Chapel Street whilst armed with a samurai sword; pursuing the two deceased along Chapel Street whilst armed with a samurai sword; striking James Huynh at the intersection of Chapel Street and Alexandra Avenue with a samurai sword before the two deceased jumped into the Yarra River; pursuing the two deceased to the riverbank of the Yarra River whilst armed with a samurai sword; standing on the riverbank of the Yarra River whilst armed with a samurai sword near the position of the two deceased and when they were in the Yarra River and still alive.”
In relation to Cuong Lam it said :
“Confronting the two deceased in Daly Street whilst armed with a samurai sword; pursuing the two deceased into Chapel Street whilst armed with a samurai sword; pursuing the two deceased along Chapel Street whilst armed with a samurai sword; striking James Huynh at the intersection of Chapel Street and Alexandra Avenue with a samurai sword before the two deceased jumped into the Yarra River; pursuing the two deceased to the riverbank of the Yarra River whilst armed with a samurai sword; standing on the riverbank of the Yarra River armed with a samurai sword near the position of the deceased and when they were in the Yarra River and still alive.“
The prosecution went on to allege:
“In particular it is the prosecution case that the accused Cuong Lam was acting in concert with the accused Hung Van at the time that Hung Van struck James Huynh in Daly Street with a samurai sword” (para.13).
In a further document filed by the prosecution on 3 May 2005 setting out the prosecution’s submissions in relation to complicity, the prosecution set out the evidence which it alleged demonstrated pre-concert between the principals in the first degree. In relation to Cuong Lam on Counts 1, 2 and 3 it submitted that the evidence of pre-concert covered the following matters:
“Leaving the Salt Nightclub with Hung Van and waiting in Daly Street for the return of the deceased James Huynh, Viet Huynh and Nam Huynh and other members of their families; arming himself with a samurai sword whilst in the company of Hung Van in Daly Street; putting white gloves on his hands whilst in the company of Hung Van in Daly Street; running towards James Huynh, Viet Huynh and Nam Huynh whilst armed with a samurai sword; wearing white gloves and in the company of Hung Van.”
In relation to the accused Hung Van the same allegations of pre-concert are made and in addition it was alleged:
“Walking from Daly Street to Almeida Crescent whilst armed with a samurai sword, wearing white gloves and for the purpose of looking for James Huynh, Viet Huynh and Nam Huynh shouting, ‘It’s them, it’s them’ when James Huynh, Viet Huynh and Nam Huynh, together with other members of their families; appeared in Almeida Crescent running towards James Huynh, Viet Huynh and Nam Huynh armed with a samurai sword, wearing white gloves and in the company of Cuong Lam.“
The document further sets out the prosecution allegations as to the evidence of acts and declarations performed by a principal in the first degree admissible against other principals in the first degree. In relation to Cuong Lam it was said:
“It is the prosecution case that the following evidence may be used in this way in the case of Cuong Lam:
(a)chasing James Huynh, Viet Huynh and Nam Huynh from Daly Street, north along Chapel Street to the intersection of Alexandra Avenue and Chapel Street whilst armed with a samurai sword and wearing white gloves; assaulting James Huynh at the intersection of Alexandra Avenue and Chapel Street with a samurai sword; chasing Viet Huynh and Nam Huynh from the intersection of Alexandra Avenue and Chapel Street to the riverbank of the Yarra River and standing there whilst Viet Huynh and Nam Huynh were drowning.”
In relation to Hung Van the same allegations were made but the following additional matters were referred to:
“Assaulting James Huynh in Daly Street with a samurai sword; and
(d)after the departure of Cuong Lam from the intersection of Alexandra Avenue and Chapel Street, returning to the scene of James Huynh’s body and further assaulting him whilst he was still alive.”
Counsel for Long Tran contended that the evidence which would be elicited through the playing of Cuong Lam’s video interview will highlight the Crown’s contention that it was Long Tran’s car that was parked adjacent to a garage door on the northern side of Daly Street; but save for one passage, Cuong Lam’s statement does not touch upon the identity of the car. At one point he suggests it came from the Commercial Lounge which, if true, does not advance the prosecution case that it was Long Tran’s car.
The circumstances which, according to Cuong Lam, existed in Daly Street outside the Salt Nightclub prior to the commencement of any assault upon the deceased and prior to the chase of the deceased into Chapel Street and up Chapel Street to the intersection of Alexandra Avenue and Chapel Street, are relevant to the case which the prosecution seeks to mount against Cuong Lam. The prosecution submits that Cuong Lam acted pursuant to an agreement or understanding; that he had a particular knowledge as to the state of affairs which existed in Daly Street immediately prior to the attack upon the deceased and that he had a particular intent at that time.
These observations made by Cuong Lam as set out in his statement and video interview should be added to the large body of evidence which has been led by the prosecution as to the circumstances which existed in Daly Street prior to the attack upon the deceased. That evidence must be considered in conjunction with the statements made by Cuong Lam when considering the case of the prosecution against Cuong Lam. Cuong Lam’s observations in Daly Street are also relevant to the question as to why the deceased fled from Daly Street and why two of the deceased may have acted as they did at the river.
The prosecution, in my view, is entitled to rely upon such evidence as bearing upon Cuong Lam’s conduct in chasing the deceased to the river, his conduct at the river and the means which he employed in departing the scene of the crime. It also bears upon the truthfulness of his account as to why he remained in Daly Street. The evidence is of such probative value that it should not be excluded. There is no reason to think the jury will not act in accordance with the directions that they will be given, or that the admission of the evidence will result in some prejudice to the accused Long Tran.
The jury has already been given numerous directions during the course of the trial as to the importance of treating evidence which is introduced into the trial as a consequence of out-of-court statements by an accused as relevant and admissible only in that accused’s trial. My impression is that they are an extremely conscientious jury who have been discharging their obligations in the most diligent fashion. Most members of the jury are taking copious notes of all that occurs during the course of the trial and I have no reason to think that this jury will do other than follow any directions they are given which limit the use that may be made of evidence such as this.
For these reasons, I refuse the application.
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