REGINA v. PARK [1999] NSWSC 952

New South Wales Supreme Court CITATION : REGINA v. PARK [1999] NSWSC 952 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 - application to cross-examine witness - application within limited ambit - turns on own facts - discretion considered. ACTS CITED : Evidence Act 1995 DECISION : Application refused

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 (Judgment to cross-examine Mina Park under s.38 of the Evidence Act - see p. 485 of the transcript) 1 HIS HONOUR: I am not prepared to grant leave to the Crown to cross-examine the witness on any of the three bases sought. For the purposes of these findings, I do not need to examine further the meaning of the term "unfavourable" and the concept underlying it, since the Crown has linked his argument to the difference between what the witness said in the ERISP and what she now says. 2 Firstly as to that under s.38(1)(a), I do not consider leave appropriate because the only unfavourability that is suggested is the distinction between what the witness now says and what she said in the electronically recorded interview and the disparity between the two accounts, insofar as there is one, is insufficient to justify taking that course. 3 As to the s.38(1)(c) basis, I am of the view that the prior account is not so materially different from the present as to warrant taking the course sought and that is really a finding very much the same as the s.38(1)(a) finding. 4 As to s.38(1)(b), I have been invited by Mr. Temby and the Crown to have regard not only to the written material comprising the statements and the electronically recorded interview transcript, but also to the demeanour of the witness and the way in which she gave her evidence in the witness box. 5 I am of the view that the witness was patently a person of whom I conclude, that on numerous occasions throughout her testimony, she was not making a genuine attempt to give evidence frankly and fully. She was certainly making an attempt to give evidence, but evidence as limited as possible on particular subject matter, that being matter, such that one could reasonably conclude about which she might reasonably be supposed to have knowledge. In my view, she sought so to qualify and limit what she had said as to deprive it of any real value. 6 However, bearing in mind the limited difference between the version given to the police in the ERISP, and for which the Crown now contends, and that which she actually did give at the end of the day, and that her reluctance to make a genuine attempt to give evidence fully and frankly, was evidenced clearly to the jury in her demeanour and the way in which she answered questions on numerous topics, I do not consider, in the exercise of my discretion, I should grant leave to cross-examine on that basis either. ********