R v Tran (Ruling No 2)

[2013] VSC 160

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0074 of 2012
No. 0075 of 2012
No. 0076 of 2012

DIRECTOR OF PUBLIC PROSECUTIONS

v

QUOC HAI TRAN
NICHOLAS VLADAMIR LEVCHENKO JACQUES TONY FUCILE

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 April 2013
DATE OF RULING:	9 April 2013
CASE MAY BE CITED AS:	R v Tran & ors (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2013] VSC 160

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CRIMINAL LAW – Application for stay of charges as abuse of process – Foredoomed to fail – Absence of evidence – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A. Tinney SC and Mr A. Moore	Office of Public Prosecutions
For the Accused Tran	Mr L. Carter	Tony Hargreaves and Partners
For the Accused Levchenko	Mr I. Hill QC and Mr T. Walsh
For the Accused Fucile	Mr J. McMahon and Ms R. Shann

HIS HONOUR:

1. The three accused in this trial are charged with a number of offences arising from incidents at the Crown casino on 3 July 2011.  A jury has not yet been selected.

1. There have been several pre-trial issues and on 8 April 2013 I delivered a ruling[1] refusing an application for a stay of four charges in the indictment.  That application was primarily based on the assertion that, in each case, the prosecution case should be stayed as an abuse of process because it was foredoomed to fail.  The charges concerned the conduct of each of the accused in removing the witnesses Anderson and Ferguson from the casino.

   [1][2013] VSC 153R.

1. Because it was not known what the witnesses would say about whether they suffered pain in being removed from the premises sufficient to establish the element of injury in the offence of intentionally causing injury, I observed that the witnesses, Ferguson and Anderson should have statements taken from them in order to determine that question.

1. That has now been done and both witnesses are unable to describe any recollection of having been caused pain during that part of the incident.  The result is that in relation to charges 8 and 9 affecting the witness Anderson, the Crown have indicated an intention  not to proceed with those charges.  However, Mr Tinney SC has also indicated an intention to continue with charges 5 and 6 in relation to the witness Ferguson unless and until I order otherwise.  That being the case, Mr Carter on behalf of the accused Tran has renewed his application that charges 5 and 6 be stayed. 

1. As Mr Carter points out, in her statement dated 8 April 2013, Olivia Ferguson has indicated that she cannot recall how she was lifted up or held on the way out of the casino.  She describes no recollection of having suffered any pain.  The result is that, at least as things currently stand the Crown case will now depend on other evidence to establish that she suffered pain.  Mr Tinney SC relies on the evidence to which I referred in my first ruling and which describes the purpose of these holds and particularly relies on the CCTV video of the removal of Ms Ferguson from the casino.  It is necessary for me refer again to that evidence since the witness Ferguson does not make contribution on the issue. 

1. In more detail, those items of evidence were:

·     The CCTV video tape of the removal of Ms Ferguson from the casino at about 10.49pm on the night of 3 July 2011 in respect of which he contends the jury could infer that her facial expression demonstrates that she was in pain and which appear to show her being held in a wrist lock on each side; and

·     In summary, the evidence from a number of witnesses who will describe what techniques including wrist locks are meant to achieve including control of the individual by the use of pain.

1. I have again looked at the CCTV footage and, whether or not a jury would draw the inference that Mr Tinney SC contends for, it seems to me to be open, both by reference to what occurred while she was being escorted out and the way in which she acted after she was released outside of the premises.

1. Mr Carter particularly relies on the following passage from my first ruling:[2]

It may be that one or other of them would say they cannot recall or that the wrist locks did not cause pain.  If that is so, that would be the end of the counts under consideration.

[2][2013] VSC 153R at [34].

1. I must say that that is what I assumed would occur if the statements were given as they have been.  As I observed in that ruling, the application for a stay was, in my view, premature and I expected that the conduct of the prosecution would be governed, at least to a large extent by what occurred when further statements were taken from the two witnesses.  However,  I now must deal with the case as it stands after that step was taken and, as the authorities make clear, the question I must answer is whether it is now clear beyond argument that Crown cannot make out its case on the evidence now available to it.  On the basis of the way in which Mr Tinney SC proposes to put his case I am unable to answer that in the affirmative.  As Eames J said in R v Smith:[3]

For the stay application the question was whether there was any evidence, at all, on which the jury might draw an adverse inference against the accused and, in my view, whether the evidence be regarded as weak or not, that inference was open.

[3][1995] 1 VR 10 at 50.

1. The further application for a stay of charges 5 and 6 must again be refused.