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

---

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.

---

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

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.
[1]Bulejcik v R (1996) 185 CLR 375.
[2]Written submissions of Mr Gucciardo at [4].

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…

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 25)

Details

AGLC: R v Lam (No 25) [2005] VSC 299
Case: [2005] VSC 299
Decision Date: 10 June 2005

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