R v Lam (No 6) - [2005] VSC 280

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1505 of 2003

THE QUEEN

CUONG QUOC LAM & ORS

---

JUDGE:	Redlich J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 January 2005 to 19 September 2005
DATE OF RULING:	17 February 2005
CASE MAY BE CITED AS:	R v Lam & Ors
MEDIUM NEUTRAL CITATION:	[2005] VSC 280

RULING NO. 6

---

Evidence – Hostile witness - Application by prosecution to ask leading questions in evidence in chief – Witness evasive and unwilling to tell truth – Voir dire unnecessary – Procedure in R v Thynne [1997] VR 98 followed – Rationale for permitting leading questions – Leading questions confined to confirming facts in witness statement.

---

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 has been made by the Crown for leave to cross-examine the witness Bam Van Nguyen by leading questions in conformity with his written police statement. The Crown, although contending that I should be satisfied the witness is hostile, does not seek to cross-examine as to the credit of the witness, but rather to elicit facts referred to by the witness in his statement.

A distinction is to be drawn between cross-examination involving an attack upon the credit of a witness, impeachment of the witness, and the use of leading questions. It will often be appropriate, where a witness is treated as hostile, to circumscribe the scope of leading questions, reserving the right to more general cross-examination in the event that it is concluded by the trial judge that the witness’ responses indicate a continuing unwillingness to be truthful.

Mr Southey, quite fairly, has limited his application to the procedure that was followed by Dixon. J in R v Neal, Regos& Morgan[1] which was referred to with approval in R v Thynne[2]. By this procedure the witness may peruse his statement and answer leading questions directed to the facts contained within the statement. In R v Trong Duy Ngo[3] Winneke P. with whom other members of the Court agreed, citing the authorities to which I have referred, described the procedure of cross-examination limited to designated inconsistencies in the witness’ prior statement as in accordance with well established authority.[4] The High Court has on more than one occasion cited Thynne’s case without criticism.[5]
[1](1947) 53 ALR (CN) 615c.
[2][1997] VR 98 at 101.
[3][2002] VSCA 188.
[4]Ibid at [21].
[5]Bull v R (2000) 201 CLR 443;

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 6)

Details

AGLC: R v Lam (No 6) [2005] VSC 280
Case: [2005] VSC 280
Decision Date: 17 February 2005

CaseChat Overview and Summary

The case of R v Lam (No 6) involved the defendant, Lam, who was on trial for various criminal charges. The prosecution sought to introduce evidence from a hostile witness who was evasive and unwilling to tell the truth. The issue before the court was whether the prosecution could be allowed to ask leading questions to this witness during their evidence in chief. The court had to decide whether the circumstances warranted permitting leading questions without conducting a voir dire, as per the procedure established in R v Thynne [1997] VR 98.

The legal issue centred on the appropriate circumstances under which a prosecution could ask leading questions of a hostile witness, particularly when the witness was being evasive. The court considered the rationale behind permitting leading questions, which was to ensure that the witness's hostility did not impede the fair administration of justice. The court noted that in R v Thynne, the Victorian Court of Appeal had outlined the procedure for allowing leading questions in such situations. The court was tasked with determining whether the principles from Thynne applied to the current case and whether the questions should be confined to confirming facts already stated in the witness's statement.

The court held that the principles in Thynne were applicable and that the rationale for permitting leading questions was to counter the effects of a hostile witness. The court concluded that, in this instance, leading questions were warranted due to the witness's evasiveness and refusal to tell the truth. The questions were limited to confirming the facts as stated in the witness's statement. The court ruled that a voir dire was unnecessary and followed the procedure outlined in Thynne, allowing the prosecution to ask leading questions during the evidence in chief of the hostile witness.

The court's final orders were that the prosecution could ask leading questions to the hostile witness, restricted to the facts outlined in the witness's statement, to ensure the fairness of the trial. The court's decision emphasised the importance of balancing the rights of the defence with the need to obtain truthful and reliable evidence from a hostile witness.

Orders