R v Lam (No 7)

[2005] VSC 281

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 10 September 2005
DATE OF RULING:	23 February 2005
CASE MAY BE CITED AS:	R v Lam & Ors
MEDIUM NEUTRAL CITATION:	[2005] VSC 281

RULING NO. 7

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Evidence - Identification of persons shown on video – Objection to witness testifying that person appearing in video is person that was observed by witness – Video images purport to record events described by witness – Relevance and admissibility - Decision in R v Smith (2001) 206 CLR 650 distinguished – Whether evidence will be given undue weight.

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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. The Crown has given notice of its intention to lead additional evidence from the present witness, Michael Phan contained in a statement made by him to investigators on 21 February 2005.

1. Counsel for Cuong Lam, Hung Van and Hoang Tran all submit that the Crown should not be permitted to lead such additional evidence as it is irrelevant and inadmissible.

1. The witness Michael Phan is in the course of evidence-in-chief.  He has given evidence of the conduct of two particular persons inside and outside the Salt Nightclub.  He has testified that one of those persons was wearing a blue shirt and the other a white shirt.  It is the Crown case that the person wearing the blue shirt is the accused Hung Tu Van and the person wearing the white shirt is the accused Cuong Lam.

1. The substance of that additional statement may be shortly stated.  The witness in this statement says he had been shown video footage taken from a camera outside the Salt Nightclub on the morning of 8 July 2002 and that he had identified a number of the persons in the video footage as the persons he had described in his first statement.  In the additional statement he further says that he had been asked to examine a number of still photos taken from the video footage and that he identified these persons in those still photos as the persons that he had referred to in his earlier police statement.  This identification of these persons on the video and in the still photos occurred on the same day as he made his first statement.  In his further statement he identified himself and the persons in the blue and white shirts whom he had referred to in an earlier police statement dated 24 July 2002.

1. It was not disputed for the purposes of the present application that I should view the references by the witness to the persons wearing the blue and white shirts in his earlier police statement as references to the persons he similarly described in his evidence before the jury.  In his additional statement he also identified a person on the video as a person whom he had referred to in his earlier police statement as the person who had wrapped a belt around his hand whilst standing outside the Salt Nightclub.  He has given evidence of this observation before the jury.  The Crown contends that this person is the accused Hoang Tran. 

1. Defence counsel rested their submission largely on the decision in Smith v R.[1]  In that case two police officers who had previously dealt with the appellant prior to his trial were permitted to give evidence that one of the robbers depicted in a bank security camera photograph was the appellant.  The police officers who so testified relied solely upon their knowledge of the appellant’s physical appearance from previous dealings with the appellant in expressing the opinion that it was the appellant who was depicted in the bank photographs.  Gleeson CJ, Gaudron, Gummow and Hayne JJ in a joint judgment found that the police witnesses were in no better position than the jurors to make a comparison between the appellant and the person in the photographs.  As the police officers had reached a conclusion about the identity of the accused and the person in the bank photograph based upon the same material which was available to the jury from its own observations during the course of the trial, the police officers’ opinions did not provide any logical basis for affecting the jury’s assessment of the probability of the existence of that fact.  The opinion of the police officers was held to be irrelevant, it not being rationally probative, and its effect being to invite the jury to substitute the opinion of the police for their own conclusion.

   [1](2001) 206 CLR 650.

1. The present application raises issues quite different to those in Smith’s case.  Here the witness is being asked to testify as to whether the video footage depicts the persons outside the nightclub which he has described in his evidence.  The witness would identify which of the persons who can be observed in the video footage and still photos are the persons whom he has referred to in his evidence.  If the witness testifies in accordance with the proof of his evidence taken on 21 February 2005 he would state:

“In the first image I was shown I pointed out the person I recognised when I first looked at it.  I think this is the person I refer to on page three of my statement in paragraph four.  It is the one I describe “the dark blue shirt guy has a Samurai sword in his clothes behind his back.  He had a lot of blood on his head”.  In the second image I was shown I identified the person as “machete white shirt”.  This is the person I refer to in my first statement on page two of my statement in paragraph three and state that ‘I saw a guy on the floor.  I think he was wearing a white shirt.  He was getting stomped by two guys’.  I also refer to him on page three, paragraph four as the one holding the machete.  In the third image I was shown, I identified someone I described as having a brown shirt and a belt wrapped around his hand.  This is the person I refer to in my statement on page four paragraph three as the guy ‘I saw holding a belt in his hand, it looked like it was wrapped around his left arm’.  He was walking towards Chapel Street from the Salt Nightclub.  I think this guy was wearing a light brown button up shirt with short sleeves …  On image five … I also identified the guy with the blue shirt and Samurai walking away.  This is the same person I have spoken about earlier in this statement and I heard drove a blue Subaru WRX STI model.  I think it is the one referred to in the last paragraph of page one of my second statement as the person in the folder.  The photograph on page six again shows where I identified the guy in the white shirt with a machete.  This is the same one I spoke about earlier in this statement.  In image seven I identified the guy I have referred to earlier in this statement as the guy in the blue shirt with a Samurai sword down the back.  The persons I referred to as ‘belt around hand, brown shirt’ and ‘machete white shirt’ are the same as I have referred to earlier in this statement.  In image eight the people I identified as ‘Samurai blue shirt’ and ‘belt around hand’ and ‘machete white shirt’ are the same as I have described earlier in this statement.”

1. Evidence from the witness that the video or still pictures are pictures or footage of the persons at the time described by him in his testimony is relevant and admissible.  Unlike Smith’s case the witness would be purporting to identify persons on the video and in the photo whom he had observed at various material times some of which are the very times captured on the video. 

1. For the reasons I gave in R v Hassan[2] in which I rejected a similar submission, such evidence has probative value.  It will frequently be the case that witnesses or complainants will be asked to view a surveillance video which purports to record the very events about which they testify and will also be asked whether persons observed in such a video are the persons referred to in their evidence.  A recent illustration of the relevance of such evidence is the decision in R v Arden[3].  Both the video and still photos taken from it were found to be relevant and admissible even though the video and photographs provided no conclusive evidence, by appearance alone, as to the identity of the persons on it. 

   [2][2004] VSC  84.

   [3][2004] VSCA 131 at [13].

1. Mr Grant, on behalf of Cuong Lam, submitted that there was a danger that the jury would reason that the witness’ testimony that the person in the white shirt who could be observed in the video, considered in conjunction with a further video which the Crown intends to introduce of persons running past CR Kennedy’s premises in Chapel Street, may lead the jury to conclude that it was his client who could be observed in the latter video.  In considering this submission, I take into account that by virtue of the defence opening, it appears that it is not in dispute that the accused Cuong Lam was in the vicinity of the entrance to the Salt Nightclub carrying a sword at about the time recorded on the video and at about the time of which the witness speaks.  What is in issue is whether he was wearing white gloves at the time.  The witness in his testimony spoke of the person in the white shirt having some white material wrapped around his hand as he held the sword.

1. It will be for the jury to determine whether or not the person on the video identified by the witness is the person referred to in the evidence of the witness.  It is a question for the jury whether the video or still photos add anything to the witness’ claim that the person in the white shirt identified by the witness had any white material over his hand.  It will be for the jury to determine whether the person seen in the two videos wearing the white shirt is the same person and whether that person is Cuong Lam.  Whether these and other pieces of circumstantial evidence will support the inference for which the Crown contends are all matters for the jury.

1. It was further submitted by counsel for Cuong Lam, Hung Van and Hoang Tran that I should in the exercise of my discretion exclude such evidence as it was likely to be afforded greater weight by the jury than it deserved.  On 1 February 2005 I rejected a similar submission made on behalf of Long Thanh Tran that video evidence of the car park outside the Salt Nightclub should be excluded on the basis that the jury might afford it undue weight or utilise it in an irrational manner.[4]  Much of the reasoning expressed therein applies to the present application.  I can detect no prejudice, as the term is explained by Gleeson CJ in Festa v R,[5] that might flow to the accused from the introduction of such evidence.

   [4][2005] VSC 275.

   [5](2001) 208 CLR 593 per Gleeson CJ at [13]-[14]; Arden Footnote 3 at [49].

1. The witness evidence may be relevant in a number of ways in proof of the Crown case.  It was submitted that a danger exists that that witness will assume the persons he sees in the video to be the persons he describes in his evidence.  This can be tested in cross-examination if it is challenged.  Even if such evidence had only slight probative value, such evidence would be admissible in an identification case where it was to be viewed together with other admissible evidence.  Any weakness in the circumstantial evidence is likely to be well understood by the jury by the time the jury retires to consider their verdict.  The weight which might be given to such evidence is a matter for the jury.[6]

   [6]Festa v R Footnote 5.

1. The application to exclude the evidence must be rejected.