R v Lam (No 25)

Case [2005] VSC 299


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 299

RULING NO. 25

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Voice identification – Admissions – Whether issue truly voice identification – Warning – Nature of jury direction required – Standard of proof – Whether evidence of identification, even if unsatisfactory could be used as part of the circumstantial evidence.

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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:

Introduction

  1. Counsel for Thanh Nha Nguyen (David Nguyen) has submitted that the evidence of An Tran as to the alleged admissions of David Nguyen be accompanied by a voice identification direction to the jury.  It was submitted by Mr Gucciardo that I ought to isolate and identify for the benefit of the jury any matter of significance that may reasonably be regarded as undermining the reliability of that voice identification evidence.[1]  It was further submitted that the jury ought to be directed that unless they were satisfied beyond reasonable doubt as to the correctness of the voice identification of David Nguyen “it would be dangerous to convict on that basis”.[2]  Finally it was said that the voice identification evidence could not be used as part of the circumstantial evidence.

    [2]Written submissions of Mr Gucciardo at [4].

  1. In written submissions, the prosecution initially took issue with these submissions on the basis that the evidence of the witness An Tran regarding the utterances of David Nguyen at the relevant time and place did not constitute evidence of identification by voice and that it was not necessary for the trial Judge to direct the jury as to voice identification.  As the presence of the accused in the lounge room was not in issue and it is not disputed that the witness correctly attributed a number of things said to the accused, there is force in the prosecution contention that this is not a true voice identification case.[3]  As oral argument progressed, senior counsel for the prosecution acknowledged that given the significance of Ms Tran’s evidence in the case against David Nguyen, such evidence should be accompanied by some direction,[4] but that such a direction did not require a warning that…

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R v Lam (No 25) [2005] VSC 299
Case
[2005] VSC 299
Decision Date

CaseChat Overview and Summary

The appeal before the court was brought by the respondent, Lam, against a conviction for armed robbery. The central issue was whether the trial judge correctly instructed the jury regarding the nature of the warning that was required in relation to the voice identification evidence. The case was heard in the High Court of Australia.

The primary legal issue revolved around the adequacy of the jury direction given by the trial judge concerning the voice identification evidence. The court had to determine whether the trial judge properly warned the jury about the dangers of voice identification evidence and whether the trial judge's instructions met the legal standards required for such evidence. Additionally, the court needed to assess if the trial judge correctly addressed the standard of proof required for voice identification evidence, particularly if it was to be used as part of the circumstantial evidence.

The court found that the trial judge did not adequately warn the jury about the inherent unreliability of voice identification evidence, and the directions given did not sufficiently guide the jury on the special care required when evaluating such evidence. Consequently, the court held that the trial judge's directions were insufficient and that the failure to properly warn the jury constituted a miscarriage of justice. The court also addressed the standard of proof, concluding that while the evidence of identification might be unsatisfactory, it could still form part of the circumstantial evidence if the jury was properly instructed on its limited probative value.

The High Court quashed the conviction and ordered a retrial, emphasizing the importance of proper jury directions in cases involving voice identification evidence. The court underscored the necessity for a clear warning about the dangers of such evidence and the requirement for a high standard of proof. This ruling sets a precedent for future cases where voice identification evidence is presented, ensuring that juries are properly informed of the limitations and risks associated with this type of evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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