R v Kim [2020] NSWDC 405

District Court New South Wales

Medium Neutral Citation: R v Kim [2020] NSWDC 405 Hearing dates: 27 July 2020 Date of orders: 30 July 2020 Decision date: 30 July 2020 Jurisdiction: Criminal Before: M Adams QC ADCJ Decision: Guilty Verdict Catchwords: CRIME – Trial by Judge alone - attempt to have sexual intercourse with her without her consent – circumstantial case – intoxication – intention – mere preparation Legislation Cited: Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 1995 Cases Cited: Alister and ors v the Queen (1984) 154 CLR 404 Day v R [2017] NSWCCA 192 R v Holland (1993) 117 ALR 193 R v Gulliford [2004] NSWCCA 338 Shepherd v The Queen (1990) 170 CLR 573 Category: Principal judgment Parties: Bohruk Kim (the offender) Director of Public Prosecutions Representation: Counsel: Mr J Park of Counsel (for the offender)

Solicitors: Mr Jae Park (for the offender) Mr B Allison, Solicitor Advocate (for the Director of Public Prosecutions) File Number(s): 2019/00230324

Judgment

Introduction 1. Mr Bohyuk Kim (who is about 32 years of age) stands indicted for the offence of attempting to have sexual intercourse with Ms S (so identified in order to preserve her privacy), without her consent, knowing she was not consenting (that is, attempting to commit an offence under s 61l of the Crimes Act 1900; unless otherwise stated all statutory references are to this Act). The alleged offence occurred on 19 July, 2019 at the entrance of the block of units where Ms S lived. Mr Kim has pleaded guilty to sexually touching Ms S without her consent (an offence under s 61KC(a)) and assaulting her (an offence under s 61), both offences occurring on the same occasion. He has, however, pleaded not guilty to attempting to commit the s 61l offence. The crucial question, in these circumstances, is not whether he physically interacted with Ms S but whether the prosecution is able to establish beyond reasonable doubt that he did so in an attempt to have sexual intercourse with her without her consent. 2. Mr Kim elected pursuant to s 132(1) of the Criminal Procedure Act 1986 to be tried by Judge alone, to which the Director of Public Prosecutions consented. A Korean national, Mr Kim needed an interpreter from the Korean language into English to enable him to understand the proceedings. As it happened, Ms S also needed an interpreter from the Thai language to give her evidence. 3. A number of documents were tendered by consent. These included a statement of agreed facts made under s 191 of the Evidence Act 1995. This statement outlines some relevant circumstances leading up to and following the crucial event, and contains admissions by Mr Kim to the effect mentioned above. The event was recorded on several CCTV cameras focused on the entrance to the premises. Relevant parts of these recordings, which showed Mr Kim at the entrance and his interaction with Ms S were tendered. The evidence of what transpired in that interaction comes essentially from the evidence of Ms S and the CCTV, which falls within a relatively small compass. 4. There is no doubt that Mr Kim was heavily intoxicated at the time of his attack on Ms S. (I will discuss the possible significance of this in due course.) Mr Kim was interviewed by police but, in substance, said that he could not remember what had transpired. Mr Kim did not give evidence and I direct myself that neither this nor his declining to answer questions during his police interview can be used to draw any adverse inference against him, let alone fill any gaps in the prosecution case.