R v Tran (Ruling No 3) - [2013] VSC 183

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

QUOC HAI TRAN
NICHOLAS VLADAMIR LEVCHENKO JACQUES TONY FUCILE

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 April 2013
DATE OF RULING:	17 April 2013
CASE MAY BE CITED AS:	R v Tran & ors (Ruling No 3)
MEDIUM NEUTRAL CITATION:	[2013] VSC 183

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CRIMINAL LAW – Application by prosecutor to cross-examine own witness – Section 38(1)(a) of the Evidence Act 2008 – Whether evidence “unfavourable” – Advanced ruling pursuant to s192A of the Evidence Act 2008 – No unfairness – Application granted

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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:

Introduction

The accused Quoc Tran, Nicholas Levchenko and Jacques Fucile are charged with offences arising out of their employment as Security and Services Officers at Crown Casino. In particular, the charges arise from events that occurred on the evening of Sunday 3 July 2011. In my first ruling in this trial I set out the detail background facts of the case and the way in which the Crown case is put against each of the accused.[1] I will not repeat that detail but adopt it for the purpose of this ruling.
[1]R v Tran & Ors [2013] VSC 153R.

On the eighth day of the trial, the prosecutor, Mr Tinney SC, made an application pursuant to s 38 of the Evidence Act 2008 (“the Act”) to question the witness Kris Turner as though he were cross-examining him. That application was foreshadowed by the prosecution in a document dated 28 March 2013 being the prosecution outline of submissions on pre-trial matters. The application is opposed by counsel for each of the accused. At the outset, I ruled ex tempore that I would deal with the matter as an advanced ruling pursuant to s 192A of the Act. It would be open to me, having heard fuller argument, to postpone this ruling until Turner has given his evidence in chief. I have decided not to do so. There is already sufficient evidentiary material on which to rule.

It is important to understand that in this case, the issue is not whether the particular physical events occurred to Ms Ferguson and Mr Anderson but whether, given the circumstances that were prevailing at the time, the Crown can prove beyond reasonable doubt that the accused were not acting in self defence or were not otherwise acting lawfully in discharge of their duties as employees of a casino and which were also licensed premises. The extent to which defences other than self-defence are available to the accused is a matter on which…

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 Tran (Ruling No 3)

Details

AGLC: R v Tran (Ruling No 3) [2013] VSC 183
Case: [2013] VSC 183
Decision Date: 17 April 2013

CaseChat Overview and Summary

In the matter of the Crown versus Tran, the court was tasked with considering an application by the prosecutor to cross-examine their own witness. The application was made pursuant to section 38(1)(a) of the Evidence Act 2008, which allows the court to order that a witness may be cross-examined by the party who called them if the court is satisfied that the evidence is unfavourable. The matter came before the court as an advanced ruling, pursuant to section 192A of the Evidence Act 2008.

The legal issues before the court were whether the evidence provided by the witness was indeed unfavourable, and whether granting the application would result in unfairness to the defendant. The court needed to determine if the evidence provided by the witness could be considered unfavourable and if ordering the cross-examination would cause undue prejudice or unfairness to the defendant, Tran.

The court held that the evidence provided by the witness was indeed unfavourable, as it was critical of the prosecution case and contained information that could potentially weaken the prosecution’s position. Furthermore, the court found that ordering the cross-examination would not cause unfairness to the defendant, Tran. The court reasoned that the witness's evidence was already known to the prosecution, and the defendant had an opportunity to test the witness's evidence through direct examination. Therefore, the court granted the application by the prosecutor to cross-examine their own witness.

As a result of the court's decision, the prosecutor was granted permission to cross-examine the witness, and the ruling was made in favour of the Crown. The court's decision was based on the grounds that the witness's evidence was unfavourable and that no unfairness would result from allowing the cross-examination.

Orders