R v Lam (No 26) - [2005] VSC 300

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1505 of 2003

THE QUEEN

CUONG QUOC LAM & ORS

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 Lam & Ors
MEDIUM NEUTRAL CITATION:	[2005] VSC 300

RULING NO. 26

Evidence Act – Section 55AB – Application by accused to introduce witness statement of witness not located – Witness not called at committal – Opposed by prosecution and co-accused - No opportunity by co-accused to cross-examine – Discretion to exclude - Prejudice to co-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

HIS HONOUR:

After the prosecution had closed its case, and before counsel for Thanh Nha (David) Nguyen announced what course he intended to follow, application was made on his behalf that the statement of Hao Lieu dated 16 August 2002 be admitted into evidence pursuant to s.55AB Evidence Act 1958.

Hao Lieu appeared on the presentment as a witness whom the prosecution proposed to call. I was informed that despite strenuous efforts to locate the witness, he could not be found. Hao Lieu did not give evidence at the committal hearing for the accused Hung Tu Van, Linh Van (Johnny) Nguyen, David Nguyen, Cuong Quoc Lam or Long Thanh Tran, but it appears that his statement was tendered at the conclusion of the committal. In a second committal hearing for the accused Hoang Quang Tran and Hong Bui he appeared, and was briefly cross-examined by counsel for those accused.

The statement of Hao Lieu, upon which counsel for David Nguyen relies, contains the following material parts which it was submitted by Mr Gucciardo were important to his client’s defence. The first passage is as follows:

“I walked out the front of Salt straight away after this to see my friend to see if they were all right. I guessed they had been thrown out by security. I walked out the front of Salt by myself. When I got out I looked for my friends. I then saw a bunch of people fighting. There was a group of about 10 to 20 people. They were fighting in Daly Street half-way up Daly Street. It was about where the side street was. I walked towards this fight and was about opposite the carpark when it happened. I saw bottles flying and heard bottles break on the ground. The whole group then ran off and ran to the…

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 26)

Details

AGLC: R v Lam (No 26) [2005] VSC 300
Case: [2005] VSC 300
Decision Date: 10 June 2005

CaseChat Overview and Summary

The case of R v Lam (No 26) before the court involved an application by the accused to introduce a witness statement of a witness who could not be located for the trial. The prosecution and the co-accused opposed this application, arguing that the co-accused had no opportunity to cross-examine the witness at the committal stage. The court was required to determine whether the discretion under Section 55AB of the Evidence Act allowed for the introduction of this statement, considering the potential prejudice to the co-accused. The court assessed the application based on the grounds for exclusion and the principles of fairness in criminal proceedings.

The legal issues centred around the interpretation and application of Section 55AB of the Evidence Act, which deals with the admissibility of witness statements when the witness is not available for cross-examination. The court needed to balance the accused's right to present a case with the co-accused's right to a fair trial, which includes the opportunity for cross-examination. The primary concern was whether the prejudice to the co-accused in not being able to cross-examine the witness at the committal stage outweighed the probative value of the witness statement.

The court concluded that the discretion under Section 55AB allowed for the exclusion of the witness statement due to the significant prejudice it would cause to the co-accused. The court emphasised the importance of fairness and the right to a fair trial, which includes the opportunity for cross-examination. The court found that the absence of the witness at the committal stage, and therefore the co-accused's inability to cross-examine, created a substantial risk of unfairness that could not be adequately mitigated. Consequently, the court ruled against the admission of the witness statement.

Orders