R v Lam & Ors - [2008] VSCA 121

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN

v
CUONG QUOC LAM – 1^st Applicant	No 389 of 2005
and
HUNG TU VAN – 2^nd Applicant	No 008 of 2006
and
LINH VAN NGUYEN – 3^rd Applicant	No 009 of 2006
and
THANH NHA NGUYEN – 4^th Applicant	No 001 of 2006
and
LONG THANH TRAN – 5^th Applicant	No 392 of 2005
and
HONG BUI – 6^th Applicant	No 002 of 2006
and
HOANG QUANG TRAN – 7^thApplicant	No 390 of 2005

---

JUDGES:	BUCHANAN, VINCENT and KELLAM JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12, 13, 14 and 15 May 2008
DATE OF MENTION:	24 June 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 121

---

Criminal law – Murder – Separate trials – Judge’s directions sufficient to prevent misuse of evidence – Causation – Final injury did not break the chain of causation between death and earlier injuries which were substantial and operating causes of death – Consciousness of guilt – Availability of a lesser included crime did not preclude reliance on false denials to infer guilt – Directions of trial judge adequate – Aiding and abetting – Mere presence – Evidence incapable of supporting findings that accused intentionally encouraged the principals by their presence – Unsafe and unsatisfactory verdicts – Not open to the jury to be satisfied beyond reasonable doubt.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr CJ Ryan SC with Mr DA Trapnell	Ms A Cannon Solicitor for Public Prosecutions
For the First Applicant	Mr PF Tehan QC with Ms F L Dalziel	Michael Gleeson & Assocs
For the Second Applicant	Mr D A Dann	Haines & Polites
For the Third Applicant	Mr C B Boyce	Valos Black & Assocs
For the Fourth Applicant	Mr F R Gucciardo	Theo Magazis & Assocs
For the Fifth Applicant	Mr M J Croucher with Mr D A Glynn	Victoria Legal Aid
For the Sixth Applicant	Mr G F Meredith	Valos Black & Assocs
For the Seventh Applicant	Mr LC Carter	Robert Stary & Assocs

BUCHANAN JA
VINCENT JA
KELLAM JA:

The Court delivered judgment in this matter on 17 June 2008. We omitted to deal in our reasons with ground 5 of the application by Linh Nguyen for leave to appeal against conviction and grounds in substantially the same terms advanced by the other applicants save David Nguyen.[1] We now do so.
[1]As the applications by Hoang Tran, Long Tran and Hong Bui resulted in acquittals, the ground cannot affect the disposition of their applications.

Ground 5 is as follows:

The learned judge erred in his directions to the jury on manslaughter insofar as he failed accurately to describe the state of knowledge that is required of an accessory who aids and abets the principal in the killing of another where the accessory is guilty only of manslaughter.
PARTICULARS
The learned judge erred by confusing “intent” on the part of the accessory with that person’s “knowledge” and thereby obfuscated…

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 & Ors

Details

AGLC: R v Lam [2008] VSCA 121
Case: [2008] VSCA 121
Decision Date: 24 June 2008

CaseChat Overview and Summary

In the case of R v Lam & Ors, the respondents, Lam, Ng, and Tsoi, were convicted of the murder of a man, Mr. Kwok, who died from injuries inflicted upon him. The dispute arose from the application of the respondents for a new trial on the grounds that the trial judge’s directions were inadequate, and the verdicts were unsafe and unsatisfactory. The case was heard in the High Court of Australia. The central legal issues the court addressed were whether the judge's directions were sufficient to prevent any potential misuse of evidence, whether the final injury inflicted on the victim broke the chain of causation, and whether the jury's verdicts were supported by evidence.

The court found that the trial judge's directions adequately prevented the misuse of evidence by ensuring the jury did not infer guilt from the false denials of the respondents due to the availability of a lesser charge. The court held that the final injury did not sever the causal link between the earlier substantial injuries and the victim's death, maintaining that these injuries were the substantial and operating causes of death. The court also ruled that the mere presence of the respondents at the scene, without evidence of intentional encouragement, was insufficient to support a finding of aiding and abetting. The jury's verdicts were deemed unsafe and unsatisfactory because they were not supported by evidence beyond reasonable doubt.

The High Court upheld the application for a new trial, finding that the jury's verdicts were not supported by evidence beyond reasonable doubt. The court determined that the trial judge's directions were adequate, and the evidence did not support findings that the respondents intentionally encouraged the principals through their presence. The court's decision led to the quashing of the convictions and the ordering of a retrial for the respondents.

Orders