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

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:

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.

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.

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.

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…

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 7)

Details

AGLC: R v Lam (No 7) [2005] VSC 281
Case: [2005] VSC 281
Decision Date: 23 February 2005

CaseChat Overview and Summary

The case of R v Lam (No 7) was heard in a court in Australia, where the defendant, Lam, was being tried on charges related to events captured on video. The prosecution sought to introduce video evidence that purportedly showed Lam committing the alleged offence. The defence objected to this, arguing that the video evidence was unreliable and that the prosecution's witness should not be allowed to testify that the person in the video was Lam. The case raised issues around the admissibility of video evidence and the weight that such evidence should be given by a jury.

The primary legal issue before the court was whether the video evidence was admissible and whether the witness's identification of Lam in the video should be permitted. The court had to consider whether the video footage was relevant and reliable, and whether the witness's testimony would lead the jury to give undue weight to the video evidence. The court distinguished this case from R v Smith (2001) 206 CLR 650, where it was held that evidence of a video recording of an event is not necessarily excluded from being admissible simply because it was a video recording.

The court found that the video evidence was relevant and admissible, and that the witness's testimony identifying Lam in the video was permissible. The court held that the potential for the jury to give undue weight to the video evidence was not sufficient to exclude it. The court reasoned that the jury would be able to assess the reliability of the video evidence and the credibility of the witness's identification. The court was satisfied that the evidence would not be given undue weight by the jury.

The court ordered that the video evidence be admitted and that the witness's testimony identifying Lam in the video be permitted. The court held that the prosecution could rely on the video evidence to prove their case against Lam. The court further held that the jury would be able to assess the reliability of the video evidence and the credibility of the witness's identification, and that the potential for undue weight to be given to the evidence was not sufficient to exclude it.

Orders