New South Wales Supreme Court CITATION : REGINA v. PARK [1999] NSWSC 921 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : 70085 of 1998 HEARING DATE(S) : Thursday 2 September 1999 JUDGMENT DATE : 2 September 1999 PARTIES : REGINA v. PARK, Sung Eun JUDGMENT OF : Greg James J at 1 COUNSEL : Crown: T. Hoyle, SC. Accused: I. Temby, QC./C. Traill SOLICITORS : Crown: S.E. O'Connor Accused: Stewart Levitt & Co. CATCHWORDS : Criminal trial - application to take evidence overseas by audio visual link - no sanction for false testmony - meaning of oath under Evidence Act. ACTS CITED : Crimes Act 1900 Evidence Act 1995 CASES CITED : Regina v. Too (Badgery-Parker, J., unreported 26 July 1996 DECISION : Motion dismissed IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION No. 70085 of 1998 GREG JAMES, J. THURSDAY 2 SEPTEMBER 1999 REGINA v. SUNG EUN PARK JUDGMENT 1 HIS HONOUR: I have reached the conclusion that on the evidence before me the present application - which is an application by the Crown to take certain evidence by video link - should not be granted. 2 The motion seeking an order to allow the taking of audio-visual evidence came before me today, 2 September, notice having been given only as recently as the last day or two of the month of August 1999. Slightly earlier, informal notice had been given, I am advised by the Crown Prosecutor. That informal advice at best would have put the defence on notice that the Crown might be minded to make the application. The defence objects to the proposed course. 3 The application has been brought at the death knell of a lengthy process following the accused's apprehension and extradition to Australia in which he arrived on 17 May 1998, since when he has been subject to committal proceedings, arraignment in this court, and detention, bail refused on charges of murder of his wife and two children. 4 The murders are said to have occurred some time on or after 17 October 1996 and before 27 August 1997. The accused left Australia for Korea on 29 October 1996. He apparently travelled with Miss Hwang, his girlfriend, who had been his girlfriend between October 1995 and October 1996. 5 Miss Hwang is a Korean national ordinarily resident in Korea. It is said that whilst she was present in Australia, she had a liaison with the accused during which she provided a suitcase in which, so it is said, the remains of the victims were found; accompanied him to a place at which that suitcase, presumably containing those remains, was dumped; advertised for sale the property of the deceased or at least property in which the deceased had a matrimonial interest; assisted with the uttering of forged instruments to obtain, by fraud, from bank accounts of the deceased and the deceased's children, monies; and was otherwise involved in conversations with the accused, such that her evidence of them would be highly incriminatory of him. This evidence might be critical, one might think, in the absence of hearing the rest of the evidence against the accused, to the trial. 6 With a degree of understatement, the affidavit of the Crown's instructing solicitor refers to her as "an important witness" in the Crown case. In that affidavit are chronicled attempts to obtain the testimony of Miss Hwang. It appears that shortly prior to the committal, an investigating officer became aware Miss Hwang was not prepared to travel back to the committal from Korea. The prosecution did hold a statement of hers. It had been served but no other steps were taken at the committal, or subsequent to the committal until this present application to secure her testimony in any form in which it might be provided to a jury. 7 The defence contends that, in the absence of consent from the accused, I lack the power to make the order and should not, having regard to the correspondence seeking to persuade her to come to Australia and give evidence, or to provide testimony by audio-visual link, which, it is said, is misleading, in particular in relation to an indemnity that correspondence refers to which seems to suggest she has achieved a wholesale immunity from prosecution when, in fact, the evidence before me suggests that that immunity is so limited as not to protect her from a charge in Australia in the event of direct involvement in the murder. 8 Whether it be the case that this correspondence is misleading, and whether it be the case or not that I have power under the Rules and, in particular, Part 36 Rule 2(a)(i) of the Supreme Court Rules (although I need not decide it, I interpolate I would think I do, since the rule is hardly there to provide only for the case of consent, as in such circumstances the evidence might be taken by that means and admitted for that reason), I have come to the firm conclusion, I should nonetheless refuse the application. I consider that, in the absence of evidence persuading me of the willingness of the witness to give evidence by means of audio-visual link and to give evidence truthfully and in accordance with some such sanction as an oath, to which the provisions of Part 7 Chapter 4 of the Crimes Act 1900 might apply, having regard to the disadvantages that might occur to an accused which are set out at some length in the decision of his Honour Justice Badgery-Parker in Regina v. Too (unreported 26 July 1996), even if I had power, the damages of permitting such a witness to testify in these circumstances are too high. 9 The Evidence Act, s.21, requires evidence to be given subject to an oath or affirmation. That oath or affirmation is to be understood as an oath or affirmation which might attract the operation of the relevant provisions of Divison 7. True it is that the oath or affirmation might have, in the individual case, powerful spiritual or personal significance. I, however, have no evidence as to that as applying to the potential witness. The Crown concedes that, where she is, no other sanction would attach to the oath. 10 I am confined, when attempting to ascertain the testimony of the witness to her two statements of evidence, the second taken through the assistance of an interpreter and produced in transcript form, and to consider the circumstances in which she came to be involved in the events surrounding these killings. It is inevitable that her evidence will be attacked. It is inevitable that criminality, and indeed serious criminality, will have to be canvassed with her. That may extend so far as suggesting to her a direct involvement in these killings. I am cognisant that the community's interests in a trial for a crime so serious as this demand every lawful and proper opportunity be given to the Crown to bring forward all evidence that is relevant, apparently reliable, and might tend to disclose the truth to a jury. I do not, by this judgment, exclude the Crown from putting forward the evidence if it can do so by some technique which will ensure that the evidence meets the requirements to which other evidence is subject to enable it to be properly appreciated by a jury and properly tested in a matter of such significance. 11 But, I cannot say, from the evidence before me, that I am satisfied that the witness will give evidence honestly, and will give evidence in such a way as to satisfy these requirements. Indeed the evidence before me rather requires me, even to infer that the video link facilities will provide an adequate technical mode of putting the material before the jury, a matter which would be of some considerable significance if the rules to which I have referred were to be applied. 12 The test requires a balancing of the interests to which I have referred - a fair trial for the accused, and a fair trial for the Crown - that is whether the use of the video link evidence in these circumstances would advance the course of justice. 13 Accepting the importance of the testimony and the possibility that the testimony may well be unreliable, at least in significant aspects, it does not seem to me that I can, in those circumstances, receive the testimony by a means such that it is given without the sanction of the criminal law of New South Wales and it is conceded both that the legal sanction of the oath would be so limited that it would not apply to the witness unless she were prepared voluntarily to come back within the New South Wales jurisdiction and that there is no equivalent local sanction. 14 I give this ruling now, rather than reserving to express the reasons more adequately or to deal more widely with the very wide-ranging arguments that have been presented, since this trial is due to commence before me on Monday and the jury is to be empanelled at least by Wednesday or earlier if it may be. 15 Since this is an interlocutory ruling, it will be open to the Crown to renew the application if it can do so at a future time, if it can put forward a mode of obtaining the evidence which will serve the interests of justice. But, in that regard, it should be clear that I will have in mind, should the application be renewed, that apparently a deliberate choice was made, albeit the choice may have been reluctant, not to secure the testimony or to permit the defence to test it at the committal stage, or indeed at any time prior to now. It has been conceded, and very properly by the learned Crown Prosecutor, that, were the testimony to be advanced, then the defence would be entitled, at least on nominated issues, to a preliminary examination of that testimony by way of a pre-trial or mini-trial. In the event the application is to be renewed, then consideration will have to be given as to whether the testimony can be secured with fairness to the accused, having that in mind. 16 At present, on the state of the evidence before me, I am not prepared to make the order sought in the motion, and dismiss the motion. 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