R v Lam (No 26)
[2005] VSC 300
•10 June 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1505 of 2003
| THE QUEEN |
| v |
| 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 end of the street. I don’t know where they went after this. I then saw my friend Hung sitting on the gutter near the multi-level carpark, before you get to the street where this fight was. He was on the same side of the road as the carpark. He was bleeding a lot from his head. There was blood coming out from his face. It was dripping. He was on his own. I asked him what had happened. He said he had been hit from all these guys. I asked him if he was okay and if he wanted me to take him to hospital. He said he wanted to stay. Another friend then came up. It might have been a friend named Johnny. Johnny is short. I have known him for a few years. Johnny said he would take him and that it was all right. Johnny said he would take him home. This is the same Johnny that has been charged with the murder that has happened this night. I think he lives in Altona Meadows or Laverton. I know his brother named Son.”[1]
Counsel also relies on the following further passage:
“I also know the person named David who was charged with murder this night. He is also a friend. I did not see him that night. I mostly see David at Hustler pool hall in Footscray. I haven’t seen him or spoken to him for months.”[2]
[1]Deposition 3131.
[2]Deposition 3132.
Counsel for David Nguyen drew attention to what it submitted was the significance to the defence of David Nguyen of the passages from the witness’s statement. There is an issue as to whether David Nguyen, at any material time, was in the company of Johnny Nguyen, in particular whilst Johnny Nguyen was driving his brother’s red Toyota in the vicinity of the Salt Nightclub or the crime scene at the corner of Alexandra Avenue and Chapel Street. The statement by the witness, that he saw someone who may have been Johnny Nguyen outside the Salt Nightclub, but that he did not see David Nguyen on this night, was said to be significant.
The application made by counsel for David Nguyen is opposed both by the Crown and by counsel who appear for Hung Van and Johnny Nguyen. It is submitted by them that Mr Gucciardo cannot bring this application within the context of s 55AB. It is further submitted by those accused that in the exercise of my discretion I should not permit him to introduce such evidence on the grounds that it would be prejudicial to the defence of Hung Van and Johnny Nguyen.
Section 55AB(2) provides:
“If on the trial of a person for an offence it appears to the Court –
(a)that any person whose deposition was taken before the Magistrates’ Court – (and the relevant sub-part is):
(v)cannot, after diligent search be found;
(b)that the deposition –
(i)was taken in the presence of the person being tried and that the person being tried or his or her legal practitioner had a full opportunity of cross-examining the witness or, if the deposition is that of the witness called by or on behalf of the person being tried that the informant or prosecutor or his or her legal practitioner had a full opportunity of cross-examining the witness; and
(ii)purports to be certified as correct by the licensed shorthand writer or person appointed to record the deposition 9 as the case requires) –
the deposition at any exhibits mentioned in it may be used as evidence in the trial without further proof unless it is proved that the deposition was not in fact certified by the person purporting to have certified it.”
“Deposition” is defined in section …… as including:
“Any statements admitted at a committal proceeding in accordance with Schedule 5 to the Magistrates’ Court Act 1989 (Vic).”
I was informed by senior counsel for the prosecution that the statement tendered at the conclusion of the first committal was tendered in accordance with Schedule 5, and no argument to the contrary has been advanced before me. I shall, therefore, proceed on the assumption that the statement is a deposition as defined in the Act and was admitted in accordance with the requirements of the Act.
It is evident from the form of s.55AB that the draftsperson did not contemplate the admission of a deposition in circumstances such as the present case. A statement is not to be characterised as a deposition unless it is taken in accordance with the Act. [3] The deposition was not “taken” in the presence of David Nguyen, Johnny Nguyen or Hung Van.[4] Where the witness whose deposition is sought to be admitted was not present at the committal and a party in the trial did not therefore have a full opportunity to cross-examine the witness, the conditions set out in sub-section (2)(b)(i) cannot be satisfied and the deposition cannot be introduced into evidence. That would be sufficient to dispose of this application.
[3]Attorney-General (NSW) v Jackson (1906) 3 CLR 730 and Casotti v R (1994) 74 A Crim R 294.
[4]See ss.(2)(b)(i) Evidence Act 1958.
One of the intended purposes of the sub-section is that a deposition should not be introduced where it has the potential to affect an accused or the prosecution in circumstances where that party has not had the opportunity to cross-examine the witness.
In this case both Hung Van and Johnny Nguyen contend that if the evidence were admitted, their position will be prejudiced because the account which the witness gives in his statement is inconsistent with the defence of those accused.
The legislation does not exclude the common law discretion of a trial judge to refuse the admission of the deposition.[5] In particular, the evidence may be excluded in the exercise of the “Christie” discretion. Counsel for Hung Van and Johnny Nguyen both submit the evidence should not be admitted because its prejudicial effect upon their cases outweighs the probative value to David Nguyen’s case.[6]
[5]R vCollins (1986) VR 37; Gorman v Fitzpatrick (1987) 32 A Crim R 330; Nalberski v R (1989) 44 A Crim R 434; Radford v R (1993) 66 A Crim R 210 at 228; Massiev R (1999) 1 VR 542.
[6]See Ruling 3 [2005] VSC 277 as to the right of accused to object to evidence sought to be led by co-accused.
This evidence would not, in my view, assume the importance which counsel for David Nguyen has suggested, were it to be given in the trial. If the witness were accepted, his evidence would amount to no more than the proposition that when he observed the person who might have been Johnny Nguyen speaking to Hung Van in the area in the vicinity of the multi-storey carpark, David Nguyen was not then in Johnny Nguyen’s presence. It does not go beyond that. It adds little to the defence of David Nguyen.
Mr Jackson for Hung Van submitted that the admission of this evidence would cause prejudice to the defence of Hung Van. I am unable to accept this contention as the account given by the witness was not really inconsistent with the defence advanced on Hung Van’s behalf. However, the facts asserted in the deposition are significantly inconsistent with the defence which has been presented on behalf of Johnny Nguyen. If indeed the person Johnny to whom the witness refers is Johnny Nguyen, it places Johnny Nguyen in an area in the vicinity of the nightclub very shortly after the assault took place at the intersection of Daly Street and Almeda Crescent. There is no other evidence that has been introduced in the trial which suggests that Johnny Nguyen was present at that time. Neither the prosecution or defence cases have been conducted on the basis that he was present at that time in that location nor has it been necessary for the defence to demonstrate that he was not.
As the requirements of s.55AB Evidence Act 1958 cannot be satisfied, the application must be refused. Further, if it were a matter which called for the exercise of my discretion, I would refuse to admit the deposition.
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