R v Lam (No 16) - [2005] VSC 290

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:	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…

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 16)

Details

AGLC: R v Lam (No 16) [2005] VSC 290
Case: [2005] VSC 290
Decision Date: 16 May 2005

CaseChat Overview and Summary

The matter of R v Lam (No 16) involved Long Tran, who applied for passages from an interview of his co-accused, Cuong Lam, to be excluded from evidence. The dispute arose within the context of a criminal proceeding heard in the relevant Australian court. The crux of the application was to determine whether the potential prejudice to Tran, if the passages were admitted, would outweigh the probative value of the evidence in relation to Lam.

The court was tasked with navigating the delicate balance between the principles of fairness to the accused and the need to ensure the probative value of evidence is not unduly diminished. Specifically, the court had to consider whether the prejudicial effect of the evidence on Tran's trial would substantially outweigh its probative value concerning Lam's guilt. This required a nuanced analysis of the nature of the evidence, the potential prejudice it could cause, and how that prejudice might impact the fairness of Tran's trial.

In reaching its decision, the court meticulously weighed the prejudicial elements against the probative value. It found that the prejudicial impact on Tran was significant, potentially compromising the fairness of his trial, while the probative value of the evidence in relation to Lam's case was limited. Consequently, the court ruled in favour of Tran's application, excluding the contested passages from the evidence. This decision was made in the interest of ensuring a fair trial for Tran, whilst acknowledging the constraints on the admissibility of evidence against Lam.

Orders