Citation: R v VONG, Cam Lam [2001] NSWCCA 20
Court: NSW Court of Criminal Appeal
Date: 7 February 2001
Judge(s): Giles JA, James J, Hulme J
Background
The appellant was convicted in the District Court on three charges relating to the supply of heroin. The Crown's case rested principally on telephone conversations said to demonstrate the appellant's knowing involvement in the supply of drugs.
During the trial, a video recording of the execution of a search warrant on the appellant's premises was admitted into evidence and provided to the jury for their deliberations. After the verdicts were returned, it came to light that the same video tape also contained footage of a search warrant being executed on the premises of another person, alleged to be the source of the heroin.
In that additional footage, the other person made admissions about possessing heroin, and the discovery of heroin at those premises was visible. This material had never been admitted into evidence and was never intended to go before the jury.
Legal Issues
- Whether the accidental provision of inadmissible and prejudicial material to a deliberating jury constituted an irregularity that affected the fairness of the trial
- Whether the resulting convictions should be quashed and a new trial ordered
Decision
Both the appellant and the Crown agreed that the inadvertent inclusion of the second video footage on the tape provided to the jury was a serious irregularity. The footage showed another person making admissions about heroin possession and depicted the discovery of heroin at that person's premises. This material was inadmissible and had no legitimate place in the jury's deliberations.
The Court of Criminal Appeal accepted the joint submission that this irregularity brought unfairness to the trial and could have affected the verdicts. Given that concession and the Court's own acceptance of the point, the appeal was allowed without extended analysis.
Orders Made
- Appeal allowed
- Convictions quashed
- New trial ordered
- Bail granted on specified conditions, including residence at a nominated address, daily reporting to Fairfield Police Station, and a surety with security of $250,000
Key Takeaways
- The Court of Criminal Appeal confirmed that the accidental provision of inadmissible and prejudicial material to a deliberating jury can constitute a trial irregularity sufficient to warrant quashing a conviction.
- Where the Crown concedes that such an irregularity has occurred and that it may have affected the verdicts, the appellate court will ordinarily accept that concession.
- A new trial, rather than an acquittal, was the appropriate remedy in this case, reflecting that the irregularity went to the conduct of the proceedings rather than to the sufficiency of the Crown's evidence.
- Even after convictions are quashed pending a new trial, the question of bail remains a live issue, to be determined on appropriate conditions.
Legislation and Cases Referenced
No legislation or cases were cited in the judgment text or metadata.