REGINA v. PARK [1999] NSWSC 1015

New South Wales Supreme Court CITATION : REGINA v. PARK [1999] NSWSC 1015 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : 70085 of 1998 HEARING DATE(S) : 23.9.99; 24.9.99; 30.9.99; 1.10.99 JUDGMENT DATE : 1 October 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 - discharge of jury - inappropriateness of deferring discharge for a purpose collateral to continuing the trial before the present jury. ACTS CITED : Evidence Act 1995 Crimes Act 1900 DECISION : Application granted

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

No. 70085 of 1998

GREG JAMES, J.

FRIDAY 1 OCTOBER 1999

REGINA v. SUNG EUN PARK

JUDGMENT (On application to discharge the jury)

1 HIS HONOUR: In this matter I have delivered a number of judgments referring to the unfortunately fractured nature of these proceedings. A witness whose statement had been served prior to committal, who was not called at committal and in respect of whom appropriate steps were not taken to secure the witness' presence or testimony prior, has been brought to Australia. The Crown had made application prior to trial to take the witness' evidence by video link. I ruled against that application because of the crucial nature of the witness' evidence and because a real question arose as to whether the witness would be under any such sanction as was the equivalent of the New South Wales oath, having regard to the requirements of the Evidence Act and of the relevant part of the Crimes Act. 2 Subsequently, on the witness' arrival, a further statement has been obtained indicating that the witness can give evidence which certainly focuses most powerfully on matters which, while they may have fallen within the general ambit of what the witness earlier had been thought to be able to say, now are put specifically in a way which most powerfully impacts upon the case. 3 The case remains a circumstantial case. However, the testimony that the witness apparently can give is such as immeasurably to strengthen the Crown case. The defence, confronted with this information, has sought an opportunity to make enquiries to see if avenues might exist for evidence that might rebut such portions of the new material as are capable of being put to the test of independent testimony. The Crown has argued that no adjournment should be granted, although the Crown Prosecutor recognised that at least some opportunity for inquiries might be appropriate, and that a pre-trial examination of the witness commonly referred to as a Basha enquiry should commence immediately. 4 The Crown had long conceded that if the witness were to give evidence in person such an inquiry would have to be undertaken. 5 It is clear that there are substantial avenues for cross-examination of the witness. The witness gives evidence under an immunity, apparently protecting the witness from prosecution for crimes in connection with the three murders with which the accused stands charged. 6 The witness gives evidence, having come here, by way of an arrangement under a mutual assistance agreement, having the benefit of certain statutory immunities provided for in the Federal legislation and by agreement with the Republic of Korea. 7 In the Crown case there are at least the bases for allegations that might be put to the witness of an involvement in forging and uttering, obtaining property by deception and possibly accessory after the fact to or accessory to three murders. 8 There has been immense difficulty in the Crown securing the attendance of the witness in Australia. In that respect documentation has been produced on subpoena both from the Federal Attorney General Department and the Department of Foreign Affairs and Trade. With that in mind the Crown has sought that the enquiry examining the witness' evidence should proceed and, consistently until now, throughout the trial has sought and obtained adjournments on the basis that the trial could still proceed in front of the jury that is empanelled notwithstanding the spasmodic nature of the proceedings before them. My own observations of the jury have been such as to indicate to me that they retain a vivid interest in the proceedings and a willingness to continue to serve notwithstanding that the case has grown highly confusing so far as individual items of evidence can be said to relate to the case as a whole and to others. Partly this is a consequence of the Crown Prosecutor having had to open the case in the general and restricted way that he did in consequence of his not being aware of whether or not this particular witness would come to Australia. Now, however, the Crown has taken the view that it supports the application for discharge which has been made during the trial again and again by the defence. 9 There remains, however, a problem. It is submitted by the defence that in the event that I discharge the jury it is possible that some restriction may exist in law on whether or not the evidence of the witness might be taken on some appropriate application and in particular it is submitted that the Basha enquiry procedure does not exist for this purpose. Nonetheless, recognising this, it is the Crown submission in support of what has been put by the defence that the jury should be discharged and that there is no good reason including any problem that might be associated with a Basha enquiry for maintaining the jury. 10 It would not be appropriate, in my view, notwithstanding that the jury has been excused for the day, by reason of the prospect of the Basha enquiry and the various arguments that have gone on, for me to maintain this jury solely for the purpose of hearing an argument about whether or not things that would be done after their discharge may or may not have particular legal foundation. 11 With those considerations in mind I discharge the jury.