R v Lam & Ors [2008] VSCA 109

R v Lam & Ors [2008] VSCA 109 - VSCA 2008 case summary — Zoe

[45]

Mr Foreman, ladies and gentlemen, before the next witness is called could I just say something to you about the nature of the evidence the last witness has given. You will appreciate that he has testified as to a number of important matters, some of which are only evidence in the case against [Linh] Nguyen. Other pieces of evidence are evidence of a more general nature which you might, depending on the view you take of the evidence, use in relation to [Linh] Nguyen or perhaps other accused. The evidence thus falls into two categories. That part of it which is only admissible in the trial of [Linh] Nguyen, and that is the evidence of what the witness has said his brother told him. In other words it is an out of court statement made by one of the accused to someone and thus any such evidence that you think throws any light on the conduct of that accused who made the out of court statement might be used in relation to that accused's trial, but only in relation to that accused's trial. The Crown relies upon what the witness said in this way. The Crown says that if you accept the evidence that [Linh] Nguyen made certain admissions to his brother about what he did on that particular day and what he saw, depending on what view you take of that evidence, you may use that evidence in relation to [Linh] Nguyen's trial, but not in relation to any other. So it is important that you steadfastly bear in mind that that portion of the witnesses testimony is only admissible in [Linh] Nguyen's trial. The witness also gave evidence about his general arrangement with his brother in relation to the car, and insofar as you think that the use of the red car may have a relevance not only to [Linh] Nguyen's trial but other accused, you may take that into account. Similarly, depending on what view you take of the billiard cue, that's a matter which might have more general relevance not only to [Linh] Nguyen's case, but to other accused. So you will follow how the evidence falls into two quite distinct categories. Each time there is evidence given which is only admissible in relation to one accused, I hope I'll remember to remind you. Certainly you will hear that ad nausium at the end of the trial, but I will endeavour to remind you of it as we go.

[63]

52 The forensic evidence as to the nature of the injuries was given by forensic pathologist Dr Ranson, who performed the autopsy upon the deceased, and by a forensic pathologist Dr Robertson, who was called to give evidence on behalf of Hong Bui. Dr Ranson described numerous cutting injuries to the body of the deceased. There were numerous recent injuries to the head and neck area of which ten such injuries were clearly cutting injuries. Dr Ranson gave evidence that significant force was required to cause a number of the head injuries, one of which included an incision through the left ear of the deceased severing cartilage and causing irregularity of the bone surface. Dr Ranson described a number of injuries to the chest area of the deceased including an incised stab wound which extended deeply into the tissue of the chest wall. He gave evidence of numerous injuries to the right upper arm of the deceased. In particular he observed a large injury to the deceased's right wrist penetrating the skin and into subcutaneous tissue. He said an injury of that nature would cause the severed blood vessel to bleed profusely as long as there was continuing blood pressure. He described further injury to the deceased including a gaping wound to the right shoulder which he said would have bled profusely. The left upper arm of the deceased was found to have a wound 11 centimetres in length which went deeply into underlying tissue. Dr Ranson stated that, if there was reasonable blood pressure, such a wound would bleed extensively. He also described a cutting injury on the mid part of the left upper arm of the deceased which passed through subcutaneous fatty tissue and muscle. That injury was consistent with having been caused by a sharp instrument and would have resulted in blood loss if there had been sufficient blood pressure left. A large incised injury to the left elbow of the deceased penetrated five centimetres into tissue. Dr Ranson said that small arteries and veins would almost certainly have been cut through by such an injury with resultant severe bleeding. A further serious injury was found almost separating the left hand of the deceased from the forearm. Major arteries run to the hand and, as most arteries and veins in that area were severed, that injury would, in the opinion of Dr Ranson, have bled profusely. A deep wound through tissue muscle and fat into the fibula was found in the left lower leg of the deceased. Dr Ranson said that that injury involved a high degree of force and incised substantial vascular elements, veins and arteries, which would have caused substantial blood loss given sufficient blood pressure. Likewise, a further incision found over the back of the left thigh of the deceased would have been the cause of significant bleeding. In total, Dr Ranson found 12 injuries to the deceased's head and neck area, eight injuries to the chest area, 15 injuries to the right upper limb, three separate injuries to the right shoulder, 14 injuries to the left upper arm, four areas of injury to the right lower limb and four areas of injury to the left lower limb. In addition he found a deep injury to the right buttock.

[83]

63 It was argued before us that, whilst the statements of principle in Franklin were correct, the judge erred in his application of those principles to the facts of this case. The first distinguishing factor was said to be that the stab wound to the chest occurred in circumstances whereby it could not be proved that Cuong Lam was present. It was argued that the injury did not occur substantially at the same time as the injuries which might have been caused in the first attack and it was thus separate in time and place.[18] Secondly it was argued that in the case of Franklin the issue of causation was conceded by counsel for Franklin when he asked the jury to convict his client of manslaughter. In our view there is nothing in the latter argument. Whilst it is true that in Franklin, Ormiston JA thought that the concession was determinative of the issue of causation on the appeal, it is apparent that the causation issue was fully argued and Brooking JA, with whom Phillips CJ agreed, considered the issues extensively in his judgment. As was submitted by the respondent, the authority of the principles of general application laid down in Franklin is unaffected by any concession made by defence counsel in that case. We return to the principal factor which is said to distinguish the case of Franklin from the present circumstances. Whilst it is true that a very short period of time separated the two distinct attacks upon the deceased at the bus stop in Alexandra Parade, the evidence was overwhelmingly to the effect that a savage attack took place upon the deceased whilst he was on the ground on the occasion of the first attack. The passenger in Amanda Cheng's car, Sovichea Tan saw two people 'slashing' at the deceased. Amanda Cheng saw a person get out of the red car and attack the deceased with an 'overhead motion' with a machete. Others were seen by her to attack him with swords and machetes. Susan Zuker saw the deceased struck to the upper body approximately ten times on the occasion of the first attack. Thereafter, and in the intervening period before the continuation of the attack by those who returned in the red car, no movement on the part of the deceased was observed apart from some small movement of his arms. The evidence of both Dr Ranson and Dr Robertson was that all of the major incision injuries were injuries which substantially contributed to the death of the deceased. As Lord Parker CJ said in R v Smith:[19]

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Cases Cited (7)