| 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 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
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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.
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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 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.
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.…
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- AGLC
- R v Lam (No 8) [2005] VSC 282
- Case
- [2005] VSC 282
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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