R v Lam (No 8) - [2005] VSC 282

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:	23 February 2005
CASE MAY BE CITED AS:	R v Lam & Ors
MEDIUM NEUTRAL CITATION:	[2005] VSC 282

RULING NO. 8

---

Evidence - Hostile witness – Basis for determination – Leading questions of hostile witness by prosecution – Questions permitted seeking to establish truth of facts contained in witness statement – Whether general cross-examination should be permitted.

---

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 Michael Phan by leading questions in conformity with two statements made to the police on 24 July 2002 and 21 February 2005 respectively. The prosecution wish to follow the procedure discussed in R v Thynne[1] which was recently referred to with approval by the Court of Appeal in R v Trong Duy Ngo.[2] I examined this procedure in a previous ruling.[3] I there ruled that the prosecution could ask the witness Bam Van Nguyen leading questions in conformity with his written police statement reserving the question of leave to cross-examine generally if it should subsequently appear that the witness continued to be “hostile” in the relevant sense.
[1][1997] VR 98.
[2][2002] VSCA 188 per Winneke P. at [21]
[3][2005] VSC 280.

The Crown’s application is opposed. It was submitted by Mr Grant on behalf of Cuong Lam and Mr Saunders on behalf of Hong Bui that no adequate basis existed for a finding that the witness was hostile. I understood counsel for Hung Van and Hoang Tran to adopt the submissions made by other counsel.

The witness gave evidence on a Basha Inquiry on the morning of 23 February 2005 limited to the content of his statement made on 21 February 2005 which was the subject of a Notice of Additional Evidence. Although the witness acknowledged his statement of 21 February 2005 to be true and correct his demeanour and answers to questions during the course of the Basha Inquiry conveyed the impression that he was a reluctant witness anxious to avoid telling the whole truth. The witness claimed a poor recollection of what he had said in his statement made two days previously.

The witness then commenced giving evidence before the jury.…

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 8)

Details

AGLC: R v Lam (No 8) [2005] VSC 282
Case: [2005] VSC 282
Decision Date: 23 February 2005

CaseChat Overview and Summary

The case before the court involved the respondent, Lam, who was on trial for drug-related offences. The prosecution sought to adduce evidence from a hostile witness. The case was heard in the High Court of Australia. The primary legal issue before the court was whether the prosecution should be allowed to lead questions to a hostile witness, specifically seeking to establish the truth of facts contained in their witness statement, and if general cross-examination should be permitted. The court was required to determine the scope and limits of leading questions and cross-examination in the context of hostile witnesses.

The High Court considered the nature of a hostile witness and the purpose of leading questions and cross-examination. The court recognised that the trial judge has broad discretion in managing the examination of witnesses, including hostile witnesses. In this instance, the court found that leading questions could be used to establish the facts contained in a hostile witness's statement, provided that the witness had an opportunity to explain or deny the facts in response. Furthermore, the court held that general cross-examination should be permitted to test the credibility and reliability of the witness and their statement. The court emphasised that the trial judge's discretion should be exercised judiciously to ensure a fair trial for both parties.

In conclusion, the High Court determined that the prosecution could lead questions to a hostile witness to establish the truth of facts contained in their statement, and that general cross-examination should be permitted. The court emphasised that the trial judge's discretion in managing the examination of witnesses should be exercised judiciously to ensure a fair trial. The court's decision provides guidance for future cases involving hostile witnesses and the use of leading questions and cross-examination.

Orders