New South Wales Supreme Court CITATION : REGINA v. PARK [1999] NSWSC 951 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : No. 70085 of 1998 HEARING DATE(S) : Thursday 16 September 1999 JUDGMENT DATE : 16 September 1999 PARTIES : REGINA v. PARK, Sung Eun JUDGMENT OF : Greg James J at 1 COUNSEL : Crown: T. Hoyle, SC. Acc: I. Temby, QC./C. Traill SOLICITORS : Crown: S.E. O'Connor Acc: Stewart Levitt & Co. CATCHWORDS : Criminal trial - adjournment to call overseas witness - important testimony - interests of justice on serious criminal charge - fragmented trial - necessity jury remain able to appreciate totality of evidence. ACTS CITED : Crimes Act 1900 Evidence Act 1995 DECISION : Adjournment granted IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION No. 70085 of 1998 GREG JAMES, J. THURSDAY 16 SEPTEMBER 1999 REGINA v. SUNG EUN PARK JUDGMENT (On application for discharge of jury or adjournment of trial - see p.473 of the transcript) 1 HIS HONOUR: This application has been extremely finely balanced, but I have come to a firm view as to its fate. I am minded to grant the adjournment insofar as it should be necessary, but to have in mind that it will be necessary to minimise the effects on the trial that will thereby be created, lest there should be, in the future, a necessity for a discharge to ensure fair treatment for the accused. 2 This is a trial of an accused on three counts of murder; that is, the murder of his wife and two children. The offence alleged against him is one of considerable heinousness. Both parties are of the view that the testimony of a witness, So Young Hwang, who on the Crown case was, during the relevant period, the accused's mistress, who left Australia with him and who had contact with the accused's wife shortly prior to that woman's disappearance, is desirable at the trial. 3 I had already ruled that her testimony could not, appropriately, be given by audiovisual link, bearing in mind that she would have been giving evidence from South Korea and she would not have been under a sanction, at least the legal effects of a sanction, arising as would have been the case had she been giving evidence here as a consequence of taking the oath and the application of the relevant portion of the Crimes Act. I did that because it seemed to me that there would be, and indeed this has been confirmed, a substantial challenge to aspects of her evidence and that that challenge would not be limited to ordinary attacks upon credibility, but might well include a challenge upon the basis of her involvement in serious criminality and possible criminality of the order of that charged against the accused, at least in some degree of complicity. 4 Further, the witness having an immunity, may have an end of her own to serve and there may be other matters which go to unreliability, such that had she been giving evidence by video link, it is possible a jury might not have been able to appreciate the matters notwithstanding an appropriate direction under s.165 of the Evidence Act. 5 The witness' evidence I need not recount for the purposes of this application and, indeed, it has hardly been referred to by either party. But, that evidence is certainly most important to the Crown case. Whilst it is not direct evidence of the commission by the accused of the offence charged, it does go to prove important circumstances which, should the evidence be given and accepted, would, when taken in conjunction with other circumstances otherwise proved, considerably strengthen the Crown case. 6 On the other hand, it may well be that the defence would have available from this witness evidence which would tend to displace the hypothesis that the accused committed the crime. She is peculiarly close to the action, to use the vernacular. 7 In the interests of justice, particularly considering an offence as serious as this, and a circumstantial case, I would not see it as appropriate, if it could be done while ensuring a fair trial, that her evidence would be effectively excluded. 8 Mr. Temby, however, who appears for the accused, has pointed out that this trial is already fragmented. He has not resiled from what was put earlier, that the testimony was desired, but has adopted a position that, on balance, the fragmentation that has occurred and will occur to the trial by reason of meeting the convenience of the witness when coming to Australia, she not being capable of being compelled to come or to come any earlier than she has indicated, is such that there would remain a real question of the jury being unable to appreciate, at the end of the trial, the significance of matters which have been given earlier and properly to appreciate and apply their recollections by that time. 9 It is true the trial will be fragmented. It may be that events may occur in the future of the trial which might occasion a further application and which application, bearing in mind the increasing frailty of this trial as a consequence of the fragmentation I have referred to, might have to be acceded to. I know not. But, the Crown has pointed out that that fragmentation does not mean that the jury cannot properly appreciate what has gone on, that much of the evidence is uncontroversial, that of that portion of the evidence where credibility is particularly at issue, that is the testimony of Mr. Paul Lowe and Mina Park, steps may be able to be taken to minimise the damage. 10 I interpolate that this application has been made midway through the hearing of an application by the Crown at what would otherwise be the close of Mrs. Park's evidence in chief for leave to cross-examine pursuant to s.38 of the Evidence Act. That application may need some time yet by way of hearing before I can conclude it. 11 The proceedings, as I have said, are fragmented. The issues, however, are of great and dramatic importance. In the upshot, taking into account the undertakings offered by the Crown, they being, firstly, an undertaking to meet the loses that might be occasioned by costs thrown away to enable the accused to retain his existing representation, at the rate of remuneration or at least at a reasonable rate of remuneration if that rate is not reasonable, and to assist with such Commonwealth departments as might be necessary to obtain relevant documentation, it seems to me that the matter has come down then really to the issue of whether the jury can or cannot continue with the trial in such a fashion as to be able to afford both parties justice. 12 On what I have seen so far, and on what I have heard in this application, I am not of the view that the trial, as it stands, would be unfair. Whether that view will change can only depend upon what happens from here on in. 13 For the moment, the Crown is prepared to undertake steps to seek to minimise such prejudice to the accused as might arise through isolation of the relevant witness from other evidence and to seek to space the evidence in some such fashion that, as the Crown referred to it, a buffer be created around that witness. 14 There may be other steps the Crown might take. There may be other steps the defence might seek that the Crown takes. I know not. But, the evidence is evidence which seems to me on balance in the interests of justice should not be excluded by what amounts to a listing arrangement, what seems to have been some degree of ineptitude in the prosecuting authorities securing the testimony at an earlier date and some unwillingness of the witness occasioned possibly by influence from her family or, alternatively, by other causes, which are not made clear. These matters should not, even taken in conjunction, result in the exclusion of what seems to be vital evidence. 15 The steps that the Crown might take to minimise prejudice are essentially a matter for the Crown in the running of its case. But it will, in the running of its case, need to have regard to the fact that if prejudice is occasioned, or the jury seems unable to follow and perform the function fairly that it is required to perform, it runs the risk of a future application of a different kind being successful. ******** Last Modified: 09/20/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.