New South Wales Supreme Court CITATION : REGINA v. PARK [1999] NSWSC 988 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : No. 70085 of 1998 HEARING DATE(S) : Thursday 23 September 1999; Friday 24 September 1999 JUDGMENT DATE : 24 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 - jury proceedings interrupted - application for discharge. CASES CITED : Regina v. Glennon (1994) 179 CLR 1 DECISION : Application refused IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION No. 70085 of 1998 GREG JAMES, J. FRIDAY 24 SEPTEMBER 1999 REGINA v. SUNG EUN PARK JUDGMENT (On application to discharge the jury - see p.608 of transcript) 1 HIS HONOUR: Application has been made to discharge the jury now on the basis that the trial has been irretrievably damaged by the fractured process to date. 2 This application commenced prior to today and has proceeded before me today, particularly in the context of the Crown attempting to provide some material, whether sufficient or not one is unable to say, concerning the witness whose arrival from Korea is shortly expected. 3 The trial has been grossly fractured to date. Mr. Temby, QC. has pointed out of the 15 sitting days that could have been available, seven and a half have occupied the attention of the jury more or less. 4 However, my observation of the jury does not indicate to me that the effect upon them has in fact been such as to divert them from their ability to appreciate, as well as it might have been appreciated, the material and the circumstantial evidence in the case in the way in which that evidence has been tendered. 5 The interruptions have been most unfortunate. Those interruptions, as I have observed previously, have, in the main, been related to the difficulties created by the late calling of the witness from Korea. 6 In the material now made available to me, there appears an indemnity in respect of offences and offences associated with the death of the victims involved in the present charges. There also appears correspondence and undertakings in respect of mutual assistance agreements between Australia and South Korea. It seems highly likely that that material is an inadequate provision of the material that might be necessary for the defence to be able properly to cross-examine the witness on her understanding of the position in which she is placed. 7 Further, I note that statutory immunities are referred to in that material as well. These matters bode ill for avoiding further disruption. For the moment I need say no more about that, except that it is contended by Mr. Temby, on behalf of the accused, that the process so far has so fractured the trial that a discharge is now required. 8 Whatever may have been the history of the fractured process, in my view no discharge is presently warranted. 9 It may or may not be, however, that that which occurs for the future in the context of that history may merit a discharge. In particular I have regard to what I said in the judgment I delivered on the application concerning the increasing frailty of the trial. 10 Notwithstanding that the trial has, thanks to a listing misunderstanding, been adjourned until Tuesday, it does not seem to me that the jury is any the worse off now than I expected it would be then. It may, however, be worse off in the future, in which case the consequence, should the application be renewed, Mr. Temby, having reserved the opportunity, as it were, to make a further application, would not necessarily be the same. 11 I appreciate also that those individuals charged with the prosecution of the matter before me are doing what they can. That is not the point, however. Mr. Temby, indeed, expressly has accepted that the individuals are doing what they can. 12 The issue is whether the trial fairness is or will be so affected and the defence inappropriately handicapped. The issue is one that will, of course, be examined in the light of the principles in Regina v. Glennon (1994) 179 CLR 1 that to a certain extent all parties may have to accept some degree of handicap and nonetheless a trial will be fair. But the importance of this witness and the importance of maintaining the trial are matters which at present do not mind me to grant the application. Last Modified: 09/30/1999 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.