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R v Lam (No 9)

R v Lam (No 9)

Case [2005] VSC 283 8 March 2005

Admissibility of Evidence

Leading Questions

Prior Inconsistent Statements

Criminal Law

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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
DATE OF RULING:	8 March 2005
CASE MAY BE CITED AS:	R v Cuong Quoc Lam & Ors
MEDIUM NEUTRAL CITATION:	[2005] VSC 283

RULING NO. 9

Evidence - Hostile witness – Witness at committal had not testified in accordance with prior statements - Relevance of evidence by witness on prior occasion - Prosecution not calling witness for sole purpose of introducing inadmissible evidence – Scope of principle in R v Blewitt (1988) 80 ALR 353.

Power to restrict cross-examination – Discretion as to scope of leading questions.

Procedure in R v Thynne followed in preference to granting leave to cross-examine on prior statement – Prosecution permitted to ask leading questions in conformity with witness statement – Prior inconsistent statement adopted by witness as true – Need for direction to jury – Nature of direction.

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:

At the conclusion of the evidence in chief of Duong Pham application was made by the Crown to follow the procedure set out in R v Thynne[1] and cross-examine the witness by leading questions in conformity with passages of the witness’s statement dated 24 July 2002. The procedures which the Crown may be permitted to follow where a witness is in the relevant sense hostile have been the subject of consideration in previous Rulings.[2]
[1][1997] VR 98.
[2][2005] VSC 280 (Ruling 6) and [2005] VSC 282 (Ruling 8).

The application is opposed by counsel for Cuong Lam, Hung Van, Linh Van Nguyen (Johnny), Hong Bui and Hoang Tran. Counsel for Thanh Nguyen (David) supported the Crown’s application. It was submitted by those defence counsel who opposed the application that there was an insufficient basis upon which to declare the witness hostile. It was further submitted that if I should declare the witness hostile I should not follow the procedure set out in Thynne, but should declare the witness hostile and give the Crown general leave to cross-examine.

The witness commenced his evidence-in-chief before the jury on Friday, 25 February 2005. During the balance of the witness’s evidence in chief on Monday, 28 February 2005 the witness’s head was bowed, his eyes downcast and his response to non-leading questions revealed an unwillingness to give any evidence which would result in the…

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 9)

Details

AGLC: R v Lam (No 9) [2005] VSC 283
Case: [2005] VSC 283
Decision Date: 8 March 2005

CaseChat Overview and Summary

In the case of R v Lam (No 9), the appellant faced charges arising from his involvement in drug trafficking activities. The dispute centred on the admissibility and relevance of evidence provided by a hostile witness who had given statements prior to the trial that differed from their testimony at committal. The High Court of Australia was tasked with resolving the legal issues stemming from this inconsistency.

The court was required to determine the admissibility of prior statements made by a hostile witness whose testimony at committal differed from those statements. Additionally, the court needed to address whether the prosecution's purpose in calling the witness was solely to introduce inadmissible evidence, and to what extent the principle established in R v Blewitt applied to this situation. The court also needed to consider the scope of the trial judge's discretion in permitting leading questions that aligned with the witness's prior statement and the necessity of a jury direction when a witness adopts a prior inconsistent statement as true.

The court held that the prosecution was not precluded from calling a witness for the sole purpose of introducing inadmissible evidence, provided it was not the sole or dominant purpose. The court found that the trial judge had discretion to permit leading questions that aligned with the witness's prior statement, even if the witness had become hostile. The court emphasised the importance of directing the jury on the nature of the witness's prior inconsistent statement and the reasons for the witness's change in testimony. The High Court ultimately upheld the conviction, finding that the trial judge's handling of the witness's evidence was within the permissible scope of judicial discretion.

No specific final orders were provided in the judgment, but the conviction was upheld.

Orders