JUDGE:	Redlich J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 January 2005 to September 2005
DATE OF RULING:	31 January 2005
CASE MAY BE CITED AS:	The Queen v Lam & Ors
MEDIUM NEUTRAL CITATION:	[2005] VSC 277

RULING NO. 3

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Joint trial – Accused sought exclusion of evidence admissible only against co-accused - Power to exclude evidence against co-accused on ground that unduly prejudicial to accused – Duty to ensure fair trial - Co-accused having no objection to exclusion of evidence - Discretion to exclude evidence sought to be led by any party in joint trial.

Separate trial application - Relevant principles - Inadmissible material in co-accused’s out of court statements insufficient basis for separate trial.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr Mark Dean SC with Mr Patrick Southey	Mr S. Carisbrooke, Acting Solicitor for Public Prosecution
For Cuong Quoc Lam	Mr Sean Grant	Michael Gleeson & Associates
Hung Tu Van	Mr Andrew Jackson	Haines & Polites
Linh Van Nguyen	Mr David Brustman	Valos Black & Associates
Thanh Nha Nguyen	Mr Frank Gucciardo	Theo Magazis & Associates
Long Thanh Tran	Mr Gerard Mullaly	VLA
Hong Bui	Mr John Saunders	Valos Black & Associates
Hoang Quang Tran	Mr Mark Rochford	Brendan Wilkinson

HIS HONOUR:

An application has been made on behalf of Cuong Lam that I exclude certain passages from the Record of Interview and Statement of the co-accused, Hoang Tran, on the ground that such matters are unfairly prejudicial to Cuong Lam’s case, and are of little or no probative value in the Crown’s case against Hoang Tran.

Mr Rochford, who appears for Hoang Tran, has stated that no objection would be taken to the exclusion of those passages of Hoang Tran’s interview and statement.

Mr Dean S.C., who appears with Mr Southey for the Crown, opposes the application. At the outset of his submission the learned prosecutor asserted that the court has no power to entertain an application by Cuong Lam to exclude evidence which the Crown seeks to adduce in the trial of Hoang Tran. No authority was referred to in support of this contention. The prosecution argued that it was not open to Cuong Lam to object to evidence that is relevant and admissible in the case of Hoang Tran and that I have no discretion to exclude such evidence. The prosecution submitted that the proper remedy is for Cuong Lam to apply for a separate trial if it be contended that Cuong Lam cannot obtain a fair trial if such evidence is to be led in the trial against Hoang Tran. Although no authority was cited on behalf of Cuong Lam in support of the argument, it was assumed that upon objection being taken by an accused, evidence in the case of a co-accused may be excluded in the exercise of a court’s discretion if it is…

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 3)

Details

AGLC: R v Lam (No 3) [2005] VSC 277
Case: [2005] VSC 277
Decision Date: 31 January 2005

CaseChat Overview and Summary

The case of R v Lam (No 3) was before the court, involving a joint trial of several defendants. The nature of the dispute was the admissibility of certain evidence in a joint trial, specifically whether such evidence should be excluded if it was only admissible against one of the co-accused but prejudicial to another. The court was required to consider the balance between the rights of each accused to a fair trial and the practicalities of conducting a joint trial.

The legal issues at the heart of the case revolved around the court’s discretion to exclude evidence against one co-accused in a joint trial when such exclusion was sought to protect the accused's right to a fair trial. This included assessing the potential prejudice to the accused by the admission of evidence that was only relevant to another co-accused. The court also had to consider the principles governing the application for a separate trial and the circumstances under which such an application might be granted, particularly in light of inadmissible material contained in out-of-court statements of a co-accused.

In reaching its decision, the court emphasised the importance of ensuring a fair trial for each defendant while balancing this with the practicalities of conducting joint trials. The court held that the discretion to exclude evidence against one co-accused exists to protect the fairness of the trial but must be exercised judiciously. The court noted that the mere presence of inadmissible material in a co-accused’s out-of-court statements was not, by itself, a sufficient basis for granting a separate trial. Ultimately, the court determined that the evidence in question should not be excluded, as the prejudicial impact on the accused did not outweigh the benefits of a joint trial.

No separate orders were made by the court in this instance. The case underscores the court’s cautious approach to granting separate trials and the importance of maintaining the integrity of joint trials wherever possible.

Orders