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

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

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.

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).

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…

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 23)

Details

AGLC: R v Lam (No 23) [2005] VSC 297
Case: [2005] VSC 297
Decision Date: 10 June 2005

CaseChat Overview and Summary

The matter of R v Lam (No 23) involved Cuong Quoc Lam, who made a further application regarding his trial. The nature of the dispute centred around whether the prejudicial inference that untruthful prosecution witnesses were seeking to assist the accused was sufficient to render evidence admissible only against the co-accused prejudicial to the accused. The case was heard in the relevant court.

The primary legal issues that the court was required to address were whether the prejudicial inference drawn from the untruthful testimony of the prosecution witnesses was valid, and if the evidence that was only admissible against the co-accused would be prejudicial to Lam. The court needed to balance the admissibility of evidence against the potential prejudice it could cause to the accused.

The court considered the nature of the prejudicial inference and whether it was reasonable to conclude that the untruthful witnesses were attempting to assist Lam. The court examined the evidence and the potential impact it could have on Lam's trial. Ultimately, the court found that the prejudicial inference was not unreasonable, and that the evidence, while potentially prejudicial, was not so prejudicial as to warrant excluding it entirely. The court determined that the evidence could be admitted with appropriate instructions to the jury to consider the reliability of the witnesses.

The final orders of the court allowed for the evidence to be admitted against Lam, subject to specific directions to the jury regarding the credibility of the witnesses. The court emphasised the importance of ensuring that the jury was properly informed about the potential unreliability of the evidence, thereby mitigating any prejudice that might arise from its admission.

Orders