R v Lam (No 29)

[2005] VSC 414

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1505of 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:	12 September 2005
CASE MAY BE CITED AS:	R v Cuong Quoc Lam & Ors
MEDIUM NEUTRAL CITATION:	[2005] VSC 414

RULING NO. 29

Application for discharge of jury without verdict - Lapse of time between close of Crown case and the commencement of the jury’s deliberation – No risk of miscarriage of justice.

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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. On 7 September 2005, an application was made by counsel for all accused that the jury be discharged without verdict. It was anticipated that the jury would commence their deliberations on the 8^th September. It was submitted, as a formality and without any enthusiasm, that the trial process had become too disjointed because of the lapse of time between the conclusion of the Crown case on 31 May 2005 and the jury deliberations which would commence the same or following day.  It was said that because of the time lost because of jury illness, the length of addresses by counsel and the length of the charge there was a potential for a miscarriage of justice. Very little was said to support the present application. Counsel stated they had been advised by senior counsel to raise the matter to avoid any criticism elsewhere that no exception had been taken at trial.  Counsel referred to KBT v R[1]; Gipp v R[2] and TKWJ v R[3].  Counsel did not demur when I observed during the course of the brief submission that my impression was that counsel did not appear to regard the application as having substance.

   [1](1997) 191 CLR 417

   [2](1998) 194 CLR 106

   [3](2002) 212 CLR 124.

1. I rejected  the application and stated that I would give reasons later.

1. The discharge of a jury without verdict is a serious step which should not be taken  unless there is a high degree of necessity.  It should occur only when it is necessary to prevent a miscarriage of justice.[4]  Beyond the reference to the effluxion of time since the jury last heard evidence, nothing was said as to why the jury would be unable to bring in a true verdict according to the evidence.  The brief application of counsel for all accused was not advanced with any enthusiasm.

   [4]R v Boland [1974] VR 849 and R v Jamieson (2003) 9 VR 119; [2003] VSCA 224 per Chernov J at [56].

1. The Crown case against each accused is based primarily upon a very large number of pieces of circumstantial evidence and a detailed account to investigators by six of the seven accused.

1. The initial estimate by counsel was that the trial would take 16 weeks.  This estimate was conveyed to the jury panel at the start of the trial.  Despite the trial taking so much longer than was estimated, the jury, without complaint, have gone about their task in a diligent manner.  The jury appeared to take comprehensive notes throughout the trial and were extremely attentive and focused.

1. During the latter part of the trial all of the parties expressed their opposition to the splitting of the accused’s cases which would have resulted in the jury hearing addresses and a summing up for a particular accused and the taking of a separate verdict for that accused.  Such a course was followed in the case of R v Mitchell.[5]  All defence counsel wished to have all of the addresses and the charge for all accused completed before the jury commenced its deliberations in relation to all accused.  Every accused wanted the benefit of the addresses of other defence counsel which would revisit and emphasise any weaknesses in the prosecution case against the three principals in the first degree.

   [5][1971] VR 46.

1. Following the conclusion of the prosecution case one accused called evidence from an expert in blood spatter analysis.  The jury then heard from counsel for each party in eight impressive and very detailed addresses.  Each counsel drew together the circumstantial evidence which they contended related to each issue.  On each issue which concerned them they emphasised the evidence which supported their case and identified the evidence which was in dispute.  Those witnesses whose credibility or reliability was under challenge were the subject of particular attention in each counsel’s address.  The inconsistencies between witnesses who appeared to describe the same event were examined.  The events as narrated by witnesses were analysed by reference to the times as shown on various video recordings which captured some of the events.  Each party made detailed submissions about the sequence of events and invited the jury to reach certain conclusions based upon the time when an event occurred.  In short, each party examined and combined the many fragmentary pieces of the circumstantial evidence and presented a composite view of the facts which that party submitted were the facts which the jury should find on a particular issue.  By the conclusion of addresses the jury had been reminded very clearly and forcefully about all of the evidence which each party contended bore upon a particular issue and what findings of facts that party was urging should be made. 

1. The chronology of sitting days since the prosecution closed its case, and which has been agreed to by the parties, is annexed to these reasons.  There have been a number of days lost during the trial because of jury illness.  Jury illness is to be expected in a trial which lasts eight months.  During the winter months some jurors showed symptoms of viral pneumonia and some sitting  days were lost. I was not prepared to confine the jury in their jury room and risk the entire jury becoming unwell when one or more jurors were displaying symptoms of a viral infection. The Crown closing arguments was interrupted on  a number of occasions through illness of a juror.

1. During the course of the closing address of counsel for Hung Van, the address was interrupted because of jury illness.  Application was made on his behalf to discharge the jury in his trial because of the disruption to the address.  In refusing the application, which was only faintly pursued, I noted that the breaks in that address, if anything, worked to the advantage of the accused.  The jury had the opportunity to reflect upon what had already been submitted rather than find themselves immediately dealing with the closing address of counsel for the next accused following upon the address of counsel for Hung Van.  Counsel further had the opportunity to remind the jury of arguments already advanced when he resumed. 

1. The quality and detail of all counsels addresses were of an extremely high standard.  After the conclusion of the very detailed addresses of counsel for the second, third and fourth accused on the presentment, I suggested that the speed of the  trial should be paced so that  the jury did not feel under undue pressure and had time to  absorb and consider the arguments that had already been put to them.  All defence counsel accepted that such a course was appropriate.  When defence counsel for Hong Bui was  too unwell to continue with his closing address on a Thursday afternoon an adjournment was granted until the following Monday, a course welcomed by all defence counsel.

1. In my charge, after dealing with the directions of law, I first dealt with the great body of evidence that was admissible against all accused.  I summarised the evidence of each event in  chronological order, drawing together the pieces of evidence that had been given over the length of the trial that related to that event.  I summarised the evidence, both in chief and cross-examination, ensuring that each significant piece of evidence was included in my summary.  I then dealt with the evidence admissible only in a particular accused’s case and extensively summarised the closing arguments of prosecution and defence counsel for that accused before moving to the next accused’s case.  There were very few exceptions taken during my charge.  I complied with the few requests by defence counsel that I say something further to the jury about a particular issue.  When the jury was subsequently to ask for a break of three days before continuing, defence counsel expressly requested that I accede to the jury’s request. 

1. I do not consider there to be any risk that the jury will be unable to perform their function properly.  It has not been suggested that this jury would be unable to  recall to mind the witnesses who had given evidence or the submissions of counsel.  There has been no significant discontinuity in the proceedings.

1. In  the cases of Annakin v R[6] (which was a fourteen month trial) and Higgins[7] (which was a seventeen month trial and  involved notable discontinuity) no miscarriage of justice was found to have arisen as a consequence of the length or discontinuity of either trial. Many of the steps taken by Roden J in Annakin have been followed in the present trial.[8] In the much longer trial of Wilson & Grimwade[9] which lasted 22 months there were very substantial interruptions to the proceedings and a miscarriage was found to have occurred.

   [6](1988) 17 NSWLR 202; (1988) 37 A Crim R 131 at 143.

   [7](1994) 71 A Crim R 429 at 432-439.

   [8]See Footnote 7 (1988) 37 A Crim R at 141.

   [9][1995] 1 VR 163; (1994) 73 A Crim R 190 at 204.

1. At no time during the trial prior to the present application, has the jury’s capacity to comprehend or remember the evidence or the closing arguments of the parties been questioned.  All that was said on this application by counsel was that the trial had become “disjointed” because of the lapse of time.

1. Though a three month gap between the close of evidence and the commencement of a jury’s deliberations is a  lengthy period, there is no reason to think in the context of this trial, that the passage of time since the evidence concluded would give rise to a miscarriage of justice.  The jury’s focus upon the evidentiary issues has been enhanced by a succession of detailed closing addresses which have reviewed the evidence which relates to each event. 

1. Whatever be the verdicts in this trial, I have unreserved confidence that they will be based upon this jury’s sound recall and comprehension of the evidence and the competing arguments of each of the parties. I have no reason to think that the jury will have any difficulty in returning verdicts in accordance with the directions of law which they have been given.  I am unable to perceive any risk of a miscarriage of justice because of the lapse of time since the evidence concluded.