R v Lam (No 27)

[2005] VSC 412

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1505 of 2003

THE QUEEN

v

CUONG 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:	21 July 2005
CASE MAY BE CITED AS:	R v Lam & Ors
MEDIUM NEUTRAL CITATION:	[2005] VSC 412

RULING NO. 27

Application to discharge jury because of interruptions to defence counsel’s closing address through jury illness – No prejudice to accused – No high degree of necessity to discharge.

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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:

1. Application has been made by counsel on behalf of the accused Hung Tu Van that he be discharged from this trial on the basis that the closing address of counsel has been so fragmented that it will work to the serious disadvantage of the accused.  The implication of the submission is that the disruption to, and fragmentation of, the address has caused irremediable prejudice.  The submission was brief and beyond stating the basis for the application nothing of substance was said in support of the application.

1. This trial is now in its 109^th day.  The jury, who are very attentive, have taken copious notes throughout the entirety of the evidence.  Their note taking endeavours have not diminished throughout the course of counsel’s closing addresses.

1. I can see no reason why the fragmentation of Mr Jackson’s address will enure to Hung Tu Van’s prejudice.  The address has a great deal to commend it, in its detailed analysis and presentation.  In my view, the fact that it has been interrupted will serve to advantage Mr Jackson’s client.  The jury has an opportunity to consider in measured fashion what has been said during each period.  Mr Jackson will no doubt continue to analyse in detail the evidence of each witness who has given an account potentially adverse to Hung Van.  There is little risk, with these breaks, that the jury will overlook the importance of the many points which Mr Jackson has raised and which the jury may not have previously considered during the trial.  Mr Jackson may, if he wishes, remind the jury of arguments already made in such detail as he sees fit.  He has already done so after one such interruption. 

1. It is my intention in my charge to give the jury a reasonably full summary of the evidence.  That necessity arises, partly because of the length of the trial, partly because of the nature of the evidence and also because of the content of the closing addresses.  I also intend to refer to counsel’s closing addresses in substantial detail.  I hope I will do Mr Jackson’s address no injustice when I try and remind the jury of all of the major points which Mr Jackson has made.  I will also refer to some of those arguments at various points during the charge when dealing with evidence which has been the subject of comment by counsel and when relating the law to the facts. 

1. I am not satisfied that there is any risk of injustice or that a high degree of necessity has been shown to discharge the accused.