R v Lam (No 17)

[2005] VSC 291

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:	18 May 2005
CASE MAY BE CITED AS:	R  v Cuong Quoc Lam & Ors
MEDIUM NEUTRAL CITATION:	[2005] VSC 291

RULING NO. 17

Change in prosecution case –Prosecution during trial contends named person, not on the presentment, is principal in first degree acting in concert with accused – Whether abuse of process when that person awaiting trial on one count of affray –Risk of injustice to accused presented as principals in the first and second degree.

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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:

1. The prosecution seeks to present its case on the basis that the person Tuan Quoc Tran was acting in concert with Cuong Quoc Lam, Hung Tu Van and Thanh Nha (David) Nguyen.

1. It was submitted that it would be an abuse of process if Tuan Tran, who faces a presentment containing one count of affray and has indicated his intent to plead guilty to this count, were to be described to this jury by the prosecution as a principal offender to the crime of murder.

1. I am of the view that the course which has been taken thus far by the Director does not give rise to an abuse of process.  It is not uncommon for the authority responsible for prosecutions to find during separate trials or hearings that inconsistent positions may have to be adopted in relation to persons who are, or might be, viewed as joint offenders.  That does not mean that some abuse of process is occurring.

1. In Rawcliffe v R[1] the conclusion was reached, that circumstances similar to those in this trial, did not give rise to an abuse of process.  Whether or not it will be appropriate for the prosecution to proceed with the charge which Tuan Tran is presently facing is another question, and one that need not presently be considered.

   [1](2000) 22 WAR 490.

1. Since 14 February of this year, shortly after the trial had commenced, the prosecution revealed that it may wish to go to the jury on the basis that Tuan Tran was a principal in the first degree acting in concert with the above named accused.  That issue has been ventilated on a number of occasions since that time and the Crown's position has evolved, to one reflected in the present argument, that it would, if permitted to do so, invite the jury to conclude that Tuan Tran may have been one of those persons present at the murder scene who did acts which caused or contributed substantially to the death of the deceased, James Huynh whilst acting in concert with Cuong Lam, Hung Van and David Nguyen.

1. I have on a number of occasions indicated to defence counsel that witnesses whose evidence touches the issue of the conduct of Tuan Tran could be recalled.  I have indicated my disposition to give defence counsel considerable latitude having regard to the complexities of this trial.  No indication has been given at any stage that defence counsel wished such witnesses to be recalled.  Even at this late stage, such a course could be followed. 

1. A pattern of cross-examination emerged during the course of the trial in relation to the question of the identity of those persons who attended the murder scene and who may have been responsible for causing injuries which contributed to the death of the deceased, James Huynh.  Beyond the descriptions given in evidence-in-chief, no attempt was made by any counsel for any accused to have any eyewitness to those events, and who knew the accused or their friends, identify or describe any particular persons as being present at the murder scene.  In every case such witnesses, though present at the murder scene, claimed to have seen nobody at the murder scene or anybody that they could identify and no attempt was made to have them identify anyone.  In that context, the contention made by defence counsel, that a different approach would have been adopted by them, had Tuan Tran been included as a principal in the first degree acting in concert, is one about which I have serious reservations.  That said, Counsel for all accused have filed outlines of submission in which they have developed arguments why the course proposed by the prosecution should not be permitted.  These reasons cannot do justice to all of the arguments that have been advanced.  I am left with a real sense of unease that if the Crown were permitted to enlarge the number of persons said to be principals in the first degree and acting in concert, that some injustice might enure to one or more of the accused in a trial of this complexity.

1. One such issue to emerge in the course of the submissions made by counsel for Long Thanh Tran, was the question of who it may have been that got into Long Tran's vehicle at the murder scene.  Counsel for Long Tran in his written outlines of submissions, addressing other arguments that have to be dealt with, foreshadowed that it would be his submission that there may be a view of the evidence that required the alternate count of being an accessory after the fact to be left to the jury.  Such an issue would of its very nature require consideration of whether any named principal in the first degree might be found by the jury to have got into Long Tran's vehicle.  Similar questions might arise in relation to the vehicle of the accused, Hong Bui.

1. In my view the complexities of this case and the further issues which will arise in the event that the Crown were permitted to follow this course, militate against the Crown being permitted to do that which, it admittedly, long ago, foreshadowed.  For these less than felicitously expressed reasons, I would refuse the Crown's application that it be permitted to put its case on that basis.   I do not propose to allow the Crown to treat Tuan Tran as a principal in the first degree. They will not be permitted to suggest that he  was acting in concert with the three accused named as principals in the first degree, Cuong Lam, Hung Van and David Nguyen or  that he  was aided and abetted by the other accused who are presented as principals in the second degree..

1. The Crown may, however, address the jury on the basis that the evidence leaves open that Tuan Tran may have had some understanding with one or more of the other accused.  The Crown may go to the jury on the basis that it is open to the jury to conclude that Tuan Tran may also have participated in the infliction of injuries which caused death.  The Crown will not be permitted to submit to the jury that he was a principal in the first degree acting in concert with or aided and abetted by other accused. .

1. I will give the jury directions as to the basis upon which each accused may be complicit in the crimes charged.  The jury will be directed on the basis that only the three accused, Cuong Lam, Hung Van and David Nguyen are said to be principals in the first degree acting in concert.