R v Lam (No 23)

[2005] VSC 297

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 June 2005
CASE MAY BE CITED AS:	R v Cuong Quoc Lam & Ors
MEDIUM NEUTRAL CITATION:	[2005] VSC 297

RULING NO. 23

Separate trials – Further application by Cuong Quoc Lam – Whether prejudicial inference that untruthful prosecution witnesses seeking to assist accused – Evidence admissible only against co-accused prejudicial to 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:

Renewed application for separate trial by Cuong Lam

1. Prior to the empanelment of the jury, application was made on behalf of Cuong Lam that I exclude material prejudicial to Cuong Lam contained in the video interview of the co-accused Hoang Tran.  In the alternative it was submitted that I should grant Cuong Lam a separate trial.  I ruled, with some exceptions, that the contentious passages in Hoang Tran’s interview were probative in the Crown case against Hoang Tran and I refused to exclude them.  In some instances I was also of the view that the passages had no capacity to prejudice Cuong Lam’s trial.

1. The original application for a separate trial was very briefly and faintly argued, the principal contention being that it would be necessary that a specific direction be given in relation to each and every reference to Cuong Lam contained in Hoang Tran’s video interview to the effect that such matters were inadmissible in Cuong Lam’s trial.  I refused the application for a separate trial as it had not been demonstrated that there was any appreciable risk that the accused Cuong Lam would be unfairly prejudiced if his trial was heard jointly with that of Hoang Tran.[1]

   [1][2005] VSC 277 (Ruling 3).

1. Since so ruling and prior to the playing of Hoang Tran’s video interview, the prosecution removed a number of the passages within Hoang Tran’s interview which had formed the basis for Cuong Lam’s application for a separate trial.  In particular the questions and answers were removed relating to the incident outside the Como building[2] and the phone calls between Cuong Lam and Hoang Tran[3] which bore upon the nature of the relationship between Cuong Lam and Hoang Tran and their association on 8 July 2002.  This notwithstanding, the application for a separate trial has now been renewed.  In addition to the arguments that had been previously advanced it was submitted on Cuong Lam’s behalf that as it had been established through the evidence of a number of witnesses including Alan Sam, Vi Truong, Duong Nguyen, Paul Scanlon and Mark Ung that they were school friends of Cuong Lam’s brother, Hien Lam, the jury, might well conclude that their testimony had been less than honest and fulsome concerning their observations at the crime scene, and may have been so because they wished to protect Cuong Lam.  A similar suggestion had earlier been made on behalf of Hoang Tran when opposing a prosecution application to have one such witness declared hostile.  It was then said that as these witnesses were Hoang Tran’s friends an adverse inference would be drawn against him.  It was submitted on Cuong Lam’s behalf that as the jury may find that Hoang Tran had admitted seeing Cuong Lam at the murder scene chopping the deceased with his sword the jury would be more likely to conclude that the reason for the false or incomplete testimony of these witnesses was to protect Cuong Lam because he was the brother of their friend, Hien Lam. 

   [2]Ibid at [29-30].

   [3]Ibid at [36].

1. There was a substantial body of evidence introduced during the course of the trial, without objection, that this group of witnesses were friends of the accused Long Tran, Hong Bui, Hoang Tran and were also friends of Hien Lam, the brother of the accused Cuong Lam and that with the exception of Hong Bui, they had all gone to the same school. 

1. It would be sufficient to dispose of this argument in support of a separate trial to note that this group of witnesses would probably be called by the prosecution if Cuong Lam were tried alone.  The likelihood is high that they would each repeat the same unsatisfactory account. 

1. As to any perceived deficiencies in their evidence, the jury will again be instructed before they retire that they cannot speculate as to the reasons why witnesses have given the evidence that they have.  They will again be instructed that they cannot speculate as to what other evidence such witnesses might have given. 

1. An accomplice warning will be given in relation to the witness Mark Ung.  The jury will be instructed that they should consider whether such a warning applies to any of these witnesses.  If the jury considers that these witnesses’ testimony was in any respect unsatisfactory, the jury may conclude that such witnesses so testified in order to protect themselves as they were by their own account in close proximity to the place where the deceased James Huynh lay and was subjected to an attack by a number of young men.  The view which the jury may form of these witnesses and their reasons for so testifying does not provide any basis for the granting of a separate trial for Cuong Lam or any of the other accused who were close friends of these witnesses. 

1. Counsel for Cuong Lam developed a further submission which cannot be accepted.   He complained that the jury would use the evidence of these witnesses concerning their friendship with Hien Lam to throw light on who Hoang Tran was referring to when he spoke to Mr France.  He submitted the jury may conclude that he was referring to Cuong Lam as the person who had attacked the deceased at the bus stop.

1. The Crown led evidence from a witness Colin France, who said he had a conversation with Hoang Tran in which Hoang Tran told him that the person that he saw chopping at the deceased was the brother of an acquaintance of his.  The following day Hoang Tran told Colin France that this person was the younger of two persons who had been charged that day and that he was “the 23 years old”.  Counsel for Cuong Lam complains that the evidence which the prosecution led from the aforementioned group of witnesses that they all went to school with Hien Lam and that Cuong Lam also went to the same school but was a few years ahead of them, would permit the jury to impermissibly identify Cuong Lam as the person Hoang Tran was referring to when he spoke to Mr France and that Mr France’s evidence, inadmissible in Cuong Lam’s trial, was therefore prejudicial.

1. In rejecting this submission I note that  Hoang Tran said in his video interview that Hien Lam was his friend from school and that he knew his brother Cuong Lam.  He said he had visited the Lam  house.  He said in the interview that he had seen Cuong Lam running towards the river wearing gloves and carrying a Samurai sword and that he saw him again at the river.  The jury may conclude, on the basis of what Hoang Tran said in his interview, that the person described by Hoang Tran chopping at the deceased with a sword, and who he told Mr France, was the brother of an acquaintance, was Cuong Lam. 

1. I regret that I am unable to see how the prosecution witnesses’ testimony as to their friendship with Hien Lam provides any additional evidence concerning the identity of Cuong Lam as the person Hoang Tran was referring to when he spoke to Mr France.  Even if Hoang Tran had made no admissions about Cuong Lam in his interview, it would be open to the jury to conclude as part of the case against Hoang Tran that Hoang Tran’s reference to the “23 year old” who had been charged when speaking to Mr France was a reference to Cuong Lam.  There is evidence before the jury that Cuong Lam and Hung Van were charged on the same day and that Cuong Lam was 23 years old. 

1. This further submission added nothing more of substance  to the submission initially made on behalf of Cuong Lam on the application for separate trial that evidence including that of Mr France, inadmissible in Cuong Lam’s trial, would be placed before the jury and that Hoang Tran had admitted that Cuong Lam had committed the offence with which he is charged.  It is unnecessary to revisit the principles relevant to the granting of a separate trial and to which I have previously referred.[4]  The jury will be instructed that they should act only upon the evidence admissible in Cuong Lam’s trial.  No argument was advanced why the jury would be unable to give effect to such directions.  No reason has emerged on the renewed application that would warrant granting Cuong Lam a separate trial.  The application must be refused.

   [4]Ruling 1, Ruling 3, Ruling 24.