R v Lam (No 3)

[2005] VSC 277

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1505 of 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 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:

1. 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. 

1. 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.

1. 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 unfairly prejudicial to that accused. 

1. If one considers the competing arguments from the standpoint of legal principle, there exists an overriding duty imposed upon a trial judge to ensure a fair trial of each accused in a joint trial.  This fundamental principle is reflected in the judicial discretion to exclude evidence which would otherwise be admissible.[1]  A judicial discretion exists wherever the strict rules of admissibility would operate unfairly against the accused.[2]  In Bunning v Cross it was said to apply to “all of the evidence which is tendered by the prosecution”.[3] 

   [1]Myers v Director of Public Prosecutions [1965] AC 1001 at 1024; Driscoll v R (1977) 137 CLR 517 at 541; Duke v R (1989) 180 CLR 508 at 526.

   [2]Alexander v R (1981) 145 CLR 395 at 402; Stephens v R (1985) 156 CLR 664; Ridgeway v R (1995) 184 CLR 19 per Brennan J at 48; Harriman v R (1989) 167 CLR 590 per Brennan J at 594-595; Rozenes QC & the Director of Public Prosecutions (Victoria) v Beljajev &Ors [1995] 1 VR 533 at 549.

   [3]Bunning v Cross (1978) 141 CLR 54 per Stephen and Aickin JJ at 74-75. See also R v Tillott & Ors (1995) 38 NSWLR 1 at 7; R v Lobban (2000) 77 SASR 24 at 47-48.

1. In Dietrich v R Gaudron J explained that the requirement of fairness:

“……..results in the exclusion of admissible evidence because its reception would be unfair to the accused in that it might place him at risk of being improperly convicted, … either because its weight and credibility cannot be effectively tested … or because it has more prejudicial than probative value and so may be misused by the jury……….

The requirement of fairness is not only independent, it is intrinsic and inherent………….the power to prevent injustice in legal proceedings is necessary and, for that reason, there inheres in the courts such powers as are necessary to ensure that justice is done in every case….…  Thus, every judge in every criminal trial has all the powers necessary or expedient to prevent unfairness in the trial…..…” [4]

[4](1992) 177 CLR 292 at 363-364.

1. The discretion to exclude prejudicial evidence which outweighs its probative value[5]  is now viewed as separate and discrete from the “unfairness discretion” though there is an overlap between them.[6]  The fairness in issue where circumstances call for the exercise of the “Christie” discretion to reject evidence which is more prejudicial than probative was explained by the majority in R v Swaffield as “fairness in the trial in the sense of a trial that does not involve a perceptible risk of a miscarriage of justice”.[7]

   [5]R v Christie [1914] AC 545; Noor Mohamed v R [1949] AC 182 at 192; Kuruma, Son of Kaniu v R [1955] AC 197 at 204; R v Sang [1980] AC 402; Driscoll v R (1977) Footnote 1 per Gibbs J at 541;  Rozenes QC & Anor v Beljajev & Ors Footnote 2 at 553.

   [6]R v Swaffield; Pavic v R (1998) 192 CLR 59 per Brennan CJ at 183-184 and per Toohey, Gaudron and Gummow JJ at 189-190.

   [7]Ibid at 192-193.

1. In Cross on Evidence (Australian Edition), reference is made to Swaffield,[8] R v Edelsten[9] and Tugaga v R[10] as authority for the proposition that the discretion to exclude prejudicial evidence which outweighs its probative value “permits the court to edit a written statement of an accused tendered by the prosecution whether in the trial of that accused alone or in a joint trial, on the ground that it is unduly prejudicial to another accused”.[11]  Whilst the cases to which the learned author refers do not expressly state that the discretion extends to these circumstances, those authorities illustrate the width of the discretion reposed in the trial judge.  In England and New Zealand the discretion has been recognised as wide enough to allow the exclusion of evidence tendered by the prosecution in a joint trial as probative against one accused on the ground that it is unduly prejudicial against a co-accused.[12]

   [8]Ibid at 191-192.

   [9](1990) 21 NSWLR 542 at 551.

   [10](1994) 74 A Crim R 190.

   [11]Cross on Evidence at paragraph 11125.

   [12]R v Gunewardene [1951] 2 KB 600 per Lord Goddard at 610-11; R v Weaver [1968] 1 QB 353; R v Rogers & Tarran [1971] Crim. LR 413;  R v Silicott & Braithwaite (Broadwater Farm murder case) [1987] Crim LR 765;  R v Hereora [1986] 2 NZLR 164; Jefferson v R [1994] 1 All ER 270; Lobban v R [1995] NLJR 688; [1995] 2 All ER 602.

1. In England the discretion to exclude material admissible against a co-accused is limited to those cases where the evidence is sought to be tendered by the prosecution and the co-accused against whom the evidence is admissible agrees to its exclusion.  In Lobban v R[13] the co-accused had made a statement to the police implicating the appellant in the offence.  Both the co-accused and the prosecution wished to rely upon that statement.  The trial judge refused an application by the appellant to edit the co-accused’s statement to remove any reference to the appellant.  The appellant was convicted and submitted on appeal to the Privy Council that the trial judge had erred in refusing to edit the co-accused’s statement.  Lord Steyn with whom other members of the Privy Council agreed, referred to the power to exclude prejudicial evidence whose effect outweighs its probative value arising from the judge’s duty to ensure that a defendant receives a fair trial.  His Lordship then stated:

“… This common law discretion is the foundation of a judge’s power to cause part of a written statement made by a defendant, which is adduced in evidence by the prosecution, to be edited in the interests of justice.  It is wide enough to allow a trial judge to exclude evidence, which is tendered by the prosecution in a joint trial and is probative of the case against one co-defendant, on the ground that it is unduly prejudicial against another co-defendant.  R v Rogers & Tarran was such a case.  In such cases it is in the interests of both defendants that the disputed part of the document be edited:  the distinctive feature of the present case is that there was a conflict between co-defendants as to editing.”[14]

[13]Footnote 12.

[14]Footnote 12 [1995] 2 All ER 602 per Lord Steyn at 611.

1. After referring to the discretionary control which a trial judge has over evidence that the prosecution seeks to lead against a co-accused, their Lordships referred to the absolute right of a co-accused to deploy evidence, it not being subject to discretionary control.  The High Court in Bannon v The Queen[15] referred to this aspect of the Privy Council’s judgment in Lobban without comment.

   [15](1995) 185 CLR 1 at 23.

1. After the conclusion of argument, I was referred to a decision of the Victorian Court of Criminal Appeal in Caine & Goddard v R.[16]  In that case the trial judge had refused to delete passages prejudicial to the appellant which were contained in a co-accused’s record of interview.  The questions and answers were not probative of the case against the co-accused and neither the co-accused nor the Crown had any objection to the deletion of those questions and answers.  The trial judge had peremptorily dismissed the request stating that the exercise of his discretion was not called for as the material contained in the co-accused’s record of interview was not evidence against the appellant.  The Court of Appeal comprising Chief Justice Phillips and Crockett and Vincent JJ observed that, although the material contained in the co-accused’s record of interview was not admissible against the appellant, the trial judge was not prevented from exercising a discretion in the matter.  The Chief Justice referring to the discretion stated that it arises:

“……..from the judge’s general responsibility for the control of the trial so as, in particular, to ensure that it is conducted as fairly as possible to all parties.  We cannot detect the existence of any acceptable reason for not acceding to counsel’s request when there was no opposition by the other parties to the adoption of that course.”[17]

[16](1993) 68 A Crim  R 233.

[17]Ibid at 244.

1. I do not think it was intended by the passage, to which I have referred, to confine the discretion to cases where neither the Crown nor the co-accused wished to adduce the evidence and where the evidence has no probative value in the co-accused’s trial.  Even where the evidence is of some probative value in the co-accused trial, the wishes of the co-accused or Crown may not be decisive and the evidence may be excluded.  In Victoria, the discretion is recognised to be so broad that it may be enlivened to exclude evidence in rare cases in favour of the accused even where the co-accused opposes the exclusion of his out-of-court statements.[18]  The view expressed by the Privy Council in Lobban accords with the observations in Caine & Goddard,[19] Darrington & McGauley[20]  and Gibb & McKenzie[21] that a trial judge’s discretion extends to the control of evidence inadmissible against the accused which the Crown or a co-accused seeks to rely upon in the case of the co-accused and which illegitimately prejudices the accused.  It was re-affirmed in R v Su, Katsuno, Asami and Honda.[22] that the trial judge has the power, in exceptional circumstances, to exclude evidence which a co-accused wishes to lead, if the prejudice to the trial or the interests of the other accused outweighs the probative value to the co-accused who wishes to lead such evidence.

   [18]Darrington & McGauleyv R [1980] VR 353 at 385; R v Gibb & McKenzie [1983] 2 VR 155; (1982) 7 A. Crim. R. 385 at 394; R v Bannon & Calder, Unreported Victorian Court of Criminal Appeal, 21 September 1993 at 8.

   [19]Footnote 17.

   [20]Footnote 19.

   [21]Footnote 19.

   [22][1997] 1 VR 1 at 66.

1. In R v Wood[23] on an application for a separate trial before Malcolm CJ, reference was made to the decision of the Western Australian Court of Appeal in Attorney-General’s Reference (No. 1 of 1977)[24] where Burt CJ delivering the judgment of the court stated that a trial judge does not have a discretion to exclude evidence admissible against one accused on the ground that it is inadmissible against, and prejudicial to, another accused on occasions when two or more defendants are being tried together.  This proposition was said to follow from the decision in R v Gunewardene, but as the facts of the latter case reveal, the co-accused objected to the exclusion of the passage in her statement and wished to rely upon her out-of-court statement which implicated the accused and exculpated her.  In Gunewardene, Lord Goddard referred to the practice of the Crown in removing material, prejudicial to the accused, from a co-accused’s out-of-court statement unless it had probative value in the case against the co-accused.  Both principle and authority leads me to respectfully conclude that the discretion is not to be circumscribed in the matter stated in Attorney-General’s Reference (No. 1 of 1977) or Wood. 

   [23][2000] WASC 64 at [10].

   [24][1979] WAR 45.

1. The West Australian Court of Appeal in Button v R[25] and Kazemi v R[26] made no reference to Attorney General’s Reference (No. 1 of 1977) recognising that, although the right of an accused to lead relevant evidence is paramount, the general rule that the discretion should not be exercised as between the accused and a co-accused may give way in exceptional circumstances and the admissible evidence may be excluded.

   [25](2002) 25 WAR 382.

   [26](2003) 28 WAR 176; [2003] WASC 301.

1. This review of authority demonstrates that the Court’s discretion is not to be confined in the manner suggested by the learned prosecutor, whether it is the Crown or co-accused who wish to rely upon the evidence.  Evidence admissible only against a co-accused may be excluded where it is probative in the case against the co-accused but its probative value is outweighed by its unfair prejudice to the accused.[27]

   [27]Caine & Goddard v R Footnote 17;  Lobban v R  Footnote 12.

1. Unfair prejudice as Gleeson CJ explained in Festa v R[28] arises where the jury may use the evidence in an impermissible manner which goes beyond the probative value which it may properly be given.  In some cases the probative value of such material in the case of the co-accused may be so slight and the unfair prejudice against the accused sufficient to warrant the exercise of the discretion.

   [28](208) CLR 593 at 603.

1. In the present case the co-accused has no objection to the removal of the controversial material but the Crown seeks to rely upon it. 

1. Has it been demonstrated that the Crown should be precluded from relying upon the passages in Hoang Tran’s record of interview and statement to which objection is taken by his co-accused Cuong Lam?  The learned prosecutor contends that each of the identified passages is of significance to the Crown case against Hoang Tran.  No objection to these passages on grounds of relevance or admissibility has been advanced at any stage by counsel for Hoang Tran; nor has it been contended that any of them should be excluded on the basis that their probative value is outweighed by their prejudicial effect.  Their probative value is to be assessed in the light of the summary of the prosecution opening of the case against Hoang Tran dated 13 December 2004.

1. At paragraph 93 of the summary, the Crown foreshadowed that its case against Hoang Tran would be put in the following way:

“Hoang Quang Tran aided and abetted Cuong Quoc Lam, Hung Tu Van and Thanh Nha Nguyen or one or other or all of them in the murder of James Huynh.  He was present in Daly Street and was involved in the fight there and he was also present at the intersection of Chapel Street and Alexandra Avenue when James Huynh was murdered. 

Hoang Quang Tran intentionally assisted Cuong Quoc Lam, Hung Tu Van and Thanh Nha Nguyen in the murder of James Huynh by intentionally and knowing that they were committing that crime (a) participating in the fight in Daly Street and there being armed with a Samurai sword and a chain or belt that he wrapped around his hand, (b) running north along Chapel Street to the intersection of Alexandra Avenue to the scene of James Huynh’s murder and in doing so demonstrating his assent and concurrence to the murders of James Huynh by Cuong Quoc Lam, Hung Tu Van and Thanh Nha Nguyen, (c) attending at scene of James Huynh’s murder following his participation in the fight in Daly Street and in doing so encouraging Cuong Quoc Lam, Hung Tu Van and Thanh Nha Nguyen to murder James Huynh.”

1. Further, in the Crown’s summary it explained the basis upon which common purpose was being alleged against the accused.

“The accused Cuong Quoc Lam, Hung Tu Van and Thanh Nha Nguyen are acting in concert and thereby are principals in the first degree in the murder of James Huynh.  The accused Linh Van Nguyen, Long Tanh Tran, Hong Bui and Hoang Quang Tran are aiding and abetting the accused Cuong Quoc Lam, Hung Tu Van and Thanh Nha Nguyen in the murder of James Huynh and are principals in the second degree.

Alternatively, the seven accused are all members of a joint criminal enterprise to assault James Huynh with weapons, in particular Samurai sword, knives or other such weapons as were available to them to inflict upon him really serious injury or death.  Each of the accused shared this common purpose or contemplated that the intentional infliction of really serious injury or death to James Huynh was a possible incident in the carrying out of their common purpose to assault him.  By reason of their shared common purpose all of the accused are liable for the acts of the accused that caused the death of James Huynh that were accompanied with the intention to inflict really serious injury or death upon him.”

1. I now turn to the various passages which Counsel for Cuong Lam seeks to exclude from Hoang Quang Tran’s record of interview and statement.  I will deal firstly with the events that occurred outside the Salt Nightclub when people started running.  Hoang Tran in his record of interview states that his friends saw him get hit in the nightclub.  He said that they came outside.  He said that he saw a bunch of guys running so he ran with them.

1. Objection is taken by Cuong Lam to questions and answers 130 to 135 of Hoang Tran’s record of interview and in particular to answers recording his conduct and observations outside the nightclub and whilst he was running from the night club in Daly and Chapel Streets. They are relevant to his intent, his knowledge of the conduct of Coung Lam and whether he had a common purpose with other accused including Cuong Lam.  There is no substance in the submission that such facts are not probative in Hoang Tran’s trial or that Cuong Lam will be prejudiced by the admission of this evidence.

1. Cuong Lam seeks to exclude the statement of the observations made by Hoang Tran of Cuong Lam and his familiarity with Cuong Lam.  The passages objected to are the questions and answers in the record of interview, 144 to 171, 181 to 197, 397 to 400, 586 to 594, and the statement of Hoang Tran at depositions pages 4957 to 4958.  Hoang Tran’s familiarity with Cuong Lam, his description of Cuong Lam as the person with a Samurai sword wearing gloves, his account of Cuong Lam’s movements in Daly Street and at the corner of Chapel Street and Alexandra Avenue is relevant to the Crown case that Hoang Tran aided and abetted or had a common purpose with him.  I take into account that Cuong Lam admits in his record of interview being in Daly Street armed with a Samurai sword.  He says that it was given to him by a person who he was unable to identify.  He admits to running a short distance along Chapel Street before he stumbled and vomited on the footpath and the sword was either taken from him or he lost possession of it.

1. To the extent that Hoang Tran’s description of Cuong Lam’s conduct goes beyond that admitted by Cuong Lam,  Hoang Tran’s answers are sufficiently probative in the case against Hoang Tran to refuse the request by his co-accused to exclude them.

1. In the passage of Hoang Tran’s record of interview at questions and answers 351 to 353, Hoang Tran describes what Cuong Lam was wearing.  This, I have been told, is a matter which is the subject of evidence by numerous witnesses.  His answers are relevant to whether or not Hoang Tran has accurately identified Cuong Lam as the person who did certain things.  At questions and answers 693 to 694, Hoang Tran speaks of his recollection of whether Cuong Lam was present when the deceased James Huynh was attacked with swords by various persons.  His recollections are relevant to the Crown case that Hoang Tran was a principal in the second degree to the acts of Cuong Lam and others, or had a common purpose with Cuong Lam or others.  Hoang Tran’s answer that he has no recollection of Cuong Lam being present is relevant and can have no prejudicial effect. 

1. At questions and answers 480 to 521 Hoang Tran speaks of his familiarity with Cuong Lam including his knowledge of his car and the frequency with which he saw Cuong Lam at nightclubs.  It is relevant and the subjects explored are not contentious.  The claim by Counsel for Coung Lam that Hoang Tran’s answers as to his observations of, and familiarity with, Cuong Lam are of no, or such little probative value that they should be excluded have not been made good.  The passages are probative in the prosecution case against Hoang Tran.

1. As to questions and answers 435 to 440, they involve unnecessary repetition of prior answers which add nothing concerning Hoang Tran’s knowledge of Cuong Lam’s conduct.  Question 440 invites speculation on Hoang Tran’s part.  I shall exclude those questions and answers as having little probative value in Hoang Tran’s trial but potential prejudice to Cuong Lam.  For similar reasons I would exclude question 525.  Questions and answers 649 and 651 to 652 involve assertions of fact by the investigator which are denied by Hoang Tran.  Mr Dean quite properly concedes that they are of no probative value to the Crown and has no objection to their exclusion.  I shall exclude those questions and answers.

1. I now turn to the incident outside the Como building which is referred to in questions 286 to 349, questions 351 to 360 and to Hoang Tran’s statement (Depositions 4959).  No objection was taken by counsel for Cuong Lam to that part of Hoang Tran’s statement (Depositions 4959) in which he describes two persons who approached him as he walked away from where the deceased had been killed towards the Como building.

1. Objection was taken to the record of interview and statement where Hoang Tran described Cuong Lam alighting from a red car with the other occupants of the red car.  Hoang Tran said that all were armed with knives and wanted to attack the two persons who had approached Hoang Tran and who he thought were going to hit him.  He stated that he spoke with Cuong Lam and dissuaded Cuong Lam from attacking these persons.  I accept the Crown’s submission that this incident may connect Hoang Tran in a temporal and physical way to the scene of the crime and to Cuong Lam, as it occurred at a time which the Crown contends was very shortly after the deceased, James Huynh, was murdered, and at a place close to where the deceased was killed.  The conduct of Hoang Tran and the manner in which he dealt with Cuong Lam may bear upon the Crown claim that he was complicit in the acts of Cuong Lam or had, or continued to have, a common purpose with him.  It is relevant to the nature of the relationship between Hoang Tran and Cuong Lam at that time.  These passages are probative in the case against Hoang Tran.  An appropriate direction will be required as to the limited use the jury may make of such answers. 

1. Questions and answers 687 to 691, 702 to 715 and Hoang Tran’s statement (Depositions 4954) concern the incident at the Odeon Nightclub on 4 July 2002.  I take into account that much of the material in relation to the Odeon Nightclub is referred to in Cuong Lam’s record of interview in which he admitted that he was at the Odeon Nightclub and involved in a fight with the Huynhs.  Hoang Tran’s knowledge of that incident is relevant to his state of mind on 8 July 2002 and whether he was complicit in the act of others including Cuong Lam or had a common purpose with them.  It may bear upon his understanding of what other persons were intending to do on 8 July 2002.

1. I turn to the phone calls between Hoang Tran and Cuong Lam at questions and answers 612 to 614, and the statement at Depositions 4960.  The prosecution relies upon the fact that Cuong Lam and Hoang Tran were in communication with one another immediately after the commission of the offence.  Hoang Tran phoned Cuong Lam and Cuong Lam phoned him back.  The fact of communication has some probative value.  The sentence in Hoang Tran’s statement (Depositions 4960) in which he speculates as to why Cuong Lam may have been ringing should be excluded as it has no probative value in Hoang Tran’s trial, but may be prejudicial to Cuong Lam.  Such a course is not opposed by the Crown.

1. Counsel for Cuong Lam submitted that he should be granted a separate trial in the event that some of these passages were not to be excluded.  Counsel  relied upon the principles as enunciated in the written submission filed in support of the application for separate trial made by Thanh Nha Nguyen and which was the subject of my ruling of 19 October 2004.[29]

   [29][2004] VSCA 419 (Ruling No. 1 The Queen v Cuong Quoc Lam & Ors).

1. The interests of justice ordinarily require that where a number of persons are charged with the murder of another and the Crown alleges that they were all present at the time of the killing or complicit that they should be tried together.  That is particularly so where alleged joint offenders seek to cast blame on other accused.[30]

   [30]Webb & Hay v R (1994) 181 CLR 41 per Toohey J at 89 and per Mason CJ and McHugh J at 56.

1. The power to order a separate trial will generally not be exercised merely because evidence which has been properly admitted in the case of one accused is inadmissible in the case of another and prejudicial to that other.[31]  In R v Gibb & McKenzie, the Full Court thought it would be scandalous and a serious blot on the administration of justice if the ordering of separate trials in such cases resulted in inconsistent verdicts.

   [31]See Footnote 19 R v Gibb & McKenzie (1982) 7 A Crim R 385 at 394; See also Footnote 31 Webb & Hay v R;  R vDavidson [2000] QCA 300; R vFarrell & Cotton (1990) 48 A Crim R 311.

1. It was submitted that the nature and the extent of the questions and answers in the record of interview and statement of Hoang Tran which concerned Cuong Lam’s conduct and utterances cannot be cured by the usual direction to the jury that such evidence is only relevant and admissible in the case of Hoang Tran.  Counsel submitted that it would be necessary to identify each and every passage that could not be used in regard to Cuong Lam.  This, he submitted, would in turn highlight the prejudicial references.  He submitted that I should order that Hoang Tran have a separate trial from Cuong Lam and the other accused.

1. Counsel for Cuong Lam did not identify any particular feature of the case of either accused that would give rise to a need to order a separate trial.  Circumstances such as those in R vDemirok[32] and Jones &Waghorn v R[33] to which I have referred in Ruling One (R v Lam & Ors)[34] and which raise a significant risk that an accused person may be unfairly prejudiced by the impermissible use of evidence are not present.

   [32][1976] VR 244.

   [33](1991) 55 A Crim R 159.

   [34]See Footnote 30 at [4].

1. In Gibb & McKenzie the Court observed that statements contained in a co-accused’s record of interview implicating the accused are commonly received in joint trials and such evidence will not ordinarily justify an order for a separate trial, though special directions will be called for.  I can see no reason of substance in the present case why a separate trial from Hoang Tran should be ordered.  Although there are a substantial number of references to Cuong Lam in Hoang Tran’s interview and statement, much of what Hoang Tran asserts is acknowledged in Cuong Lam’s record of interview or may otherwise prove to be uncontroversial in the trial as it is the subject of extensive evidence by other witnesses. I have no reason to conclude that  clear and firm directions as to the limited use that may be made of Hoang Tran’s answers will be insufficient to ensure no prejudice occurs. 

1. I am not presently persuaded that it will be necessary to refer to each and every passage in Hoang Tran’s record of interview and statement to which unsuccessful objection has been taken.  The specificity of the direction which will be called for as to the inadmissibility in Cuong Lam’s trial of such passages in Hoang Tran’s record of interview and statement will depend upon the course of the trial.  I refuse the application for a separate trial.  Counsel for Cuong Lam foreshadowed that in the event that I exclude only some passages from Hoang Tran’s record of interview and statement to which objection was taken, he may wish to withdraw his application to have certain passages excluded and I will entertain a further submission if he wishes to make one in that regard.