R v Lam (No 5) - [2005] VSC 279

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1505 of 2003

THE QUEEN
V
CUONG QUOC LAM & ORS	t

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JUDGE:	Redlich J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 January 2005 to 19 September 2005
DATE OF RULING:	2 February 2005
CASE MAY BE CITED AS:	R v Lam & Ors
MEDIUM NEUTRAL CITATION:	[2005] VSC 279

RULING NO. 5

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Evidence – Identification of accused by photograph – Application to exclude - Accused admits presence at scene - Whether issue is one of identification – Discretion to exclude where prejudice outweighs probative value – Relevance of failure to conduct identification parade – Accused in custody – No wilful disregard of police procedures – Risk of unfair prejudice considered.

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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:

Application is made on behalf of Hung Tu Van to exclude evidence of a number of witnesses who identify the accused by selection of his photograph.

On 15 July 2002 three witnesses, Tuan Tran, Thi Xuan Tran and Linh Tran had made statements to investigators. On 24 July 2002 statements were taken from six witnesses, Bam Van Nguyen, Thien Hoang, Minh Duy Pham, Duong Dui Pham, Michael Pham and Thuc Kim Hoang. On 25 July 2002 a statement was taken from Cuoc Thai Dinh.

On 18 November 2002, those ten witnesses were separately shown a manila folder containing 12 black and white photographs including a photograph of Hung Tu Van. Nine of those witnesses identified Hung Tu Van’s photograph.

Photograph number five in the manila folder is a photograph of the accused. It appears that the accused signed a consent form which enabled the investigators to obtain the photograph from VicRoads. Evidence will be given as to how the photograph was obtained. One of the ten witnesses did not identify the accused’s photograph whilst the other nine identified him as a person whom they had observed involved in a fight inside the Salt Nightclub or whom they had observed in Daly Street in the vicinity of the Salt Nightclub. The majority of those witnesses who observed him in Daly Street described the accused as holding a Samurai sword which he concealed behind him. The accused is described by some of these witnesses as covered in blood or having a blood stained shirt.

On 18 July 2002 the accused was interviewed and charged with these offences. During the course of the interview he indicated his willingness to participate in…

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 5)

Details

AGLC: R v Lam (No 5) [2005] VSC 279
Case: [2005] VSC 279
Decision Date: 2 February 2005

CaseChat Overview and Summary

The case of R v Lam (No 5) involved the Crown prosecuting the respondent, Lam, on criminal charges. The primary dispute centred on the admissibility of a photographic identification of Lam by a witness, with the respondent applying to exclude the evidence. The respondent conceded his presence at the scene but contested the reliability of the photographic identification. The matter was heard in the Supreme Court of New South Wales.

The central legal issues before the court were whether the identification process was flawed and if the prejudicial effect of the photographic evidence outweighed its probative value. The court had to consider whether the absence of a formal identification parade was a significant oversight and if Lam's presence in custody at the time of the identification posed a risk of unfair prejudice. The court also examined whether the police had wilfully disregarded proper identification procedures.

The court held that while the failure to conduct an identification parade was a significant oversight, it did not render the photographic identification inadmissible per se. However, the court considered the risk of unfair prejudice due to Lam being in custody when the photograph was shown to the witness. Given that Lam had not acted with wilful disregard of police procedures, the court concluded that the prejudicial effect substantially outweighed the probative value of the photograph. Consequently, the court exercised its discretion to exclude the photographic evidence.

The final orders of the court included the exclusion of the contested photographic evidence from the trial, thereby addressing the respondent's application. This decision underscored the importance of adherence to proper identification procedures and the court's discretion to balance probative value against potential prejudice.

Orders