R v Truong Hong Phuc & Truong Thi Van

[2000] VSC 245

SUPREME COURT OF VICTORIA
CRIMINAL DIVISION	Not Restricted

No. 1449 of 1999

THE QUEEN

v.

TRUONG HONG PHUC AND TRUONG THI VAN

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JUDGE:	VINCENT, J.
WHERE HELD:	MELBOURNE
DATE OF RULING:	20 APRIL 2000
DATE REASONS HANDED DOWN:	16 JUNE 2000
MEDIUM NEUTRAL CITATION:	[2000] VSC 245

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CATCHWORDS:      Whether Crown should be permitted to re-open its case to produce records inadvertently not tendered – The Queen v. Chin (1985) 157 C.L.R. 671 – To permit evidence to be adduced would not impact upon the balance of the trial nor create any unfairness to either of the accused.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr. G. Hicks Mr. A. Moore Ms K. Judd	Office of Public Prosecutions
For the Accused Phuc	Mr. P. Morrissey	Clarebrough Pica
For the Accused Van	Mr. S. Langslow	Stary George Myall

HIS HONOUR:

1. As I indicated to counsel in the course of discussion, it is one thing to permit the re-opening of a case, particularly at this very late stage of the trial, for the production of what are non-controversial records inadvertently not tendered earlier, the existence, character and contents of which were well understood by the parties and which have been the subject of attention or reference in the course of the proceeding.  It would be quite another if there was some controversy as to any of those matters or admissibility of the documents sought to be introduced, or if there were some unfairness or potential prejudice possible by reason of such late admission.  The last mentioned situation might arise if, for example, the balance of the trial could be seen to have been possibly altered in some way or some argument affecting the accused not addressed or advanced on his or her behalf.  Again if as a consequence of being misled into believing or reasonably assuming that there were no other records in existence or to be produced, the position of the defence may have been compromised in some fashion, or some different course adopted by them it would be quite inappropriate for a trial Judge to permit the re-opening of the prosecution case.

1. In considering this matter, I have remained mindful of the views expressed by the High Court in The Queen v. Chin[1] where Gibbs C.J. and Wilson J. stated:

"The principles that govern the exercise of the discretion of a trial judge to call evidence after the close of the case for the defence have been discussed in this Court in Shaw v. the Queen (1952) 85 CLR 365 at pp.378-380, 383-384; Killick v. The Queen (1981) 147 CLR 565, at pp.568-571, 575-576 and Lawrence v. The Queen (1981) 38 ALR at pp.3, 7, 22-23.  The general principle is that the prosecution must present its case completely before the accused is called upon for his defence.  Although the trial judge has a discretion to allow the prosecution to call further evidence after evidence has been given for the defence, he should permit the prosecution to call evidence at that stage only if the circumstances are very special or exceptional and, generally speaking, not if the occasion for calling the further evidence ought reasonably to have been foreseen.

…

The principle would not prevent the prosecution from giving in reply evidence directed to an issue the proof of which did not lie on the prosecution, such as insanity, or from rebutting evidence of the accused's good character, provided that the prosecution had not anticipated the raising of an issue of this kind and led evidence with regard to it, for the prosecution must not split its case on any issue.  Also, it has been held that evidence may be given in reply to prove some purely formal matter the proof of which was overlooked in chief."  (pp.676-677)

[1](1985) 157 C.L.R. 671

1. Dawson J. put the position as follows:

"There is also authority for the proposition that the prosecution may be permitted to reopen its case to repair omissions of a formal, technical or non-contentious nature:  see Archbold's Criminal Pleading, Evidence and Practice, 41st ed. (1982), par.4-414, and the cases there cited.

The relevant principle is essentially one of fairness.  The accused is entitled to know the case which he has to meet so that he may have adequate opportunity to determine what questions he may wish to ask in cross-examination, what evidence, if any, he may wish to call and what objections, if any, he may wish to raise in the case against him.  Ordinarily the depositions upon which he is committed for trial will provide him with this information in advance and if the prosecution intends to call additional evidence it is required to give notice of its intention to do so.  The whole procedure would be undermined if the prosecution were permitted, save in exceptional circumstances, to call evidence in support of its case after the close of the case for the defence."  (p.686)

1. It is within that framework of principle and without any suggestion being involved with respect to the honesty or integrity of the prosecution process that I required the informant to give evidence before me on oath in relation to the background to the application.

1. That evidence has been given and in the circumstances, unless there is something else, to which counsel can draw my attention and which could affect the position, it seems to me that I should permit the prosecution to re-open its case for the purpose of producing the records concerned.  They are of a non-controversial kind and consist of call charge records and public telephone box identification details and relate to telephones and calls which have been the subject of attention from the commencement of the trial.  A number of exhibits have already been tendered of an identical kind without objection or controversy.

1. I should indicate that I accept that the failure by the prosecution to produce the records presently under consideration at the appropriate time was not related to any attempt to gain forensic advantage.  Nor do I consider that it could be seen to result from a lack of proper attention to their task on the part of those concerned in the preparation and presentation of the prosecution case, but rather to the matter being overlooked in a trial in which there was a great deal of material to be covered, the practical organisation and presentation of which has clearly presented substantial difficulty.

1. There can be no suggestion that the prosecution has attempted to split its case nor as a practical reality has it done so.  To permit the evidence to be adduced would not impact upon the balance of the trial nor, in my opinion, create any source of unfairness to either of the accused before the Court.  I should add that neither Mr. Morrissey who appears for the accused Truong Hong Phuc nor Mr. Langslow who appears for the accused Truong Thi Van has identified any basis of potential prejudice or unfairness and I fail to see how any could be reasonably seen to arise in the circumstances of the present trial.

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CERTIFICATE

I certify that this and the 2 preceding pages are a true copy of the reasons for ruling of Vincent, J. of the Supreme Court of Victoria handed down on 16 June 2000.

DATED this 16th day of June 2000.

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Associate