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

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:

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.

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

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…

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 29)

Details

AGLC: R v Lam (No 29) [2005] VSC 414
Case: [2005] VSC 414
Decision Date: 12 September 2005

CaseChat Overview and Summary

The case before the court involved an application for the discharge of a jury without a verdict due to the lapse of time between the close of the Crown's case and the commencement of the jury's deliberation. The defendant, Lam, was on trial for criminal charges. The High Court of Australia was tasked with determining the appropriate legal standards and principles governing the discharge of a jury in such circumstances.

The central legal issue before the court was whether the lapse of time between the end of the Crown's case and the start of the jury's deliberation could result in the automatic discharge of the jury without a verdict, and if so, what the threshold for such a lapse should be. The court needed to balance the potential risk of a miscarriage of justice with the interests of ensuring a timely and efficient judicial process.

The court considered several precedents and principles from both Australian and English jurisprudence. It found that while there is a presumption that a jury should be discharged if there is a significant delay in commencing deliberations, this presumption could be rebutted if there was no actual risk of a miscarriage of justice. The court emphasised that the determination of whether a significant delay had occurred must be assessed in the context of the specific circumstances of each case. It held that the trial judge had the discretion to decide whether the delay was significant and whether there was a risk of a miscarriage of justice. The court concluded that the trial judge did not err in finding that there was no risk of a miscarriage of justice and, therefore, the jury should not be discharged.

The court's decision affirmed the trial judge's discretion in such matters and clarified the principles to be applied when considering the discharge of a jury due to a lapse of time. The application for the discharge of the jury without a verdict was dismissed, and the trial continued.

Orders