R v Lam (No 9)

Case [2005] VSC 283


IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1505 of 2003

THE QUEEN
V
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:

  1. 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).

  1. 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.

  1. 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…

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R v Lam (No 9) [2005] VSC 283
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[2005] VSC 283
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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.

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