R v Lam (No 31)

[2005] VSC 416

IN THE SUPREME COURT OF VICTORIA 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:	21 June 2005
CASE MAY BE CITED AS:	R  v Cuong Quoc Lam & Ors
MEDIUM NEUTRAL CITATION:	[2005] VSC 416

RULING NO. 31

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Criminal law - Aiding and abetting – accused not present – error in prosecution closing address – counts 2 and 3

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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. During the course of senior counsel for the prosecution’s closing address relating to Counts 2 and 3, it was suggested to the jury that it would be open to them to conclude that even if Cuong Lam and Hung Van were not acting in concert ,the jury might conclude that if one or other of them chased the deceased Viet and Nam Huynh to the river, the other accused, being present at the bus stop, aided and abetted such conduct.  Defence counsel submitted that this proposition could not be supported as a matter of law.

1. Upon inquiry in the jury’s absence yesterday afternoon, Mr Dean further explained that it was the Crown’s contention that if the jury were satisfied that Cuong Lam and Hung Van were both present at the bus stop at the time that injuries were inflicted to the deceased James Huynh and if thereafter one of those two accused chased the deceased Viet and Nam Huynh to the river whilst the other accused remained at the scene of James Huynh’s death, that would be sufficient to enable the jury to conclude that the accused who remained at the scene, if not acting in concert with the accused who chased the deceased Viet and Nam, was at least aiding and abetting such conduct.

1. In the course of Ruling 22 I rejected the Crown’s contention that it would be unnecessary for either of the accused, acting in concert, to have chased the deceased Viet and Nam Huynh beyond the area of James Huynh’s body for them to have caused the death  of Viet and Nam Huynh.  I ruled that unless either Cuong Lam or Hung Van chased the deceased to the river they could not in law have caused the deceaseds’ deaths.  If one of them had done so, whilst acting in concert with the other, they could both have caused the deceaseds’ deaths.

1. The closing submission which prosecuting counsel advanced, that if one of the accused remained at the bus stop, he may be guilty of aiding and abetting the other who chased the deceased, has unintentionally undermined the effect of this ruling.  If the Crown’s argument were right, then each of the accused Long Tran, Hong Bui and Hoang Tran might also be guilty of the murder of Viet and Nam Huynh if the jury found that they aided and abetted a principal in the first degree in the death of the deceased James Huynh.  That, it seems to me, is another way of illustrating the physical and temporal remoteness of the acts which caused the death of Viet and Nam Huynh from the conduct of those who may be responsible for the death of James Huynh, the consideration which led to my rejection of the Crown’s earlier contention.

1. It is open to the jury to find that if one of the accused, Cuong Lam or Hung Van, chased the deceased to the river alone, that accused could be guilty of the crime with which he is charged. If Cuong Lam and Hung Van were not acting in concert, it is not open to the prosecution to invite the jury to conclude that the other accused who remained in the vicinity of the deceased James Huynh at the bus stop, could be responsible for the death of Viet and Nam Huynh.  That accused would not have been present and would not have assisted or encouraged the conduct of the accused who chased the deceased to the river.[1] That is to say that an accused present at the bus stop cannot be complicit with and criminally responsible for the acts of another accused at the river unless they were acting in concert.

   [1]The elements of aiding and abetting would not be satisfied. See ruling 21

1. At some convenient stage during Mr Dean’s address he should clarify the limited legal basis upon which the prosecution case is put against Cuong Lam and Hung Van on Counts 2 and 3.  I will direct the jury in accordance with this ruling.