REGINA v. JUNG [2006] NSWSC 661

New South Wales Supreme Court

CITATION : REGINA v. JUNG [2006] NSWSC 661

HEARING DATE(S) : 19 - 23 June 2006; 16 - 28 June 2006

JUDGMENT DATE : 29 June 2006

JURISDICTION : Criminal

JUDGMENT OF : Hall J at 1

DECISION : The ERISP is admissible

CATCHWORDS : Admissibility of the electronically recorded interview (ERISP)

LEGISLATION CITED : Evidence Act 1995 Crimes Act 1900

The Queen v Swaffield (1997) 192 CLR 1569 CASES CITED : R v Nikau (Howie, J. unreported 14 October 1997) R v Exposito (1998) 105 A. Crim. R. 27 R v Moffatt (2000) 112 A. Crim. R. 201

PARTIES : REGINA v. JUNG, Myoung Il

FILE NUMBER(S) : SC No. 2005/657

COUNSEL : Crown: M. Barr Accused: W. Terracini, SC./B. Murray

SOLICITORS : Crown: S. Kavanagh Accused: Marsdens Law Group

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

HALL, J.

THURSDAY 29 JUNE 2006

2005/657

REGINA v. MYOUNG IL JUNG

JUDGMENT (On admissibilty of ERISP)

1 HIS HONOUR: Myoung Il Jung has pleaded not guilty on the presentation of an indictment charging him with the murder of Duck Huan Kim and Dok Su Kim on 30 January 1997. The trial is to proceed before me sitting with a jury that was empanelled on Monday 26 June. 2 The accused challenges the admissibility of the record and transcript of an electronically recorded interview conducted on Monday 8 November 2004 commencing on that date at 2.30 pm and concluding at 4.20 pm. The ERISP transcription was admitted on the voir dire and marked as Exhibit F. 3 The accused relied upon s.90 which is in the following terms:- "In criminal proceedings, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:- (a) the evidence is adduced by the prosecution; and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence." 4 I have also had regard to s.85 of the Evidence Act 1995 (NSW). That section is in the following terms:- "(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant:- (a) in the course of official questioning; (b) as a result of an act of another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued. (2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. (3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account:- (a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and (b) if the admission was made in response to questioning:- (i) the nature of the questions and the manner in which they were put; and (ii) the nature of any threat, promise or other inducement made to the person questioned." 5 Mr. Terracini, SC. provided a copy of the High Court's judgment in The Queen v. Swaffield (1997) 192 CLR 1569 in which Brennan, CJ. reviewed the authorities concerned with involuntary confessions (at pp.167-171) and the unfairness discretion (at pp.171-180). 6 Section 85, inter alia, requires consideration of the circumstances relating to the process by which official questioning occurs and is directed to ascertaining the truthfulness and reliability of admissions. The focus is upon the impact of the circumstances in which the admission was made on the actual reliability of the admission: Regina v. Nikau (Howie, J., unreported 14 October 1997); Regina v. Exposito (1998) 105 A. Crim. R. 27 at 44 per Wood, CJ. at CL. 7 The section may apply in circumstances not involving police impropriety. No such impropriety is claimed in this case. A suspect's vulnerabilities are to be taken into account: Regina v. Moffatt (2000) 112 A. Crim. R. 201. 8 The term "admission" may extend to a lie by a suspect or accused as a form of implied admission: Exposito (supra) at 43-44. The Crown in these proceedings relies upon a number of alleged lies by the accused. The prosecution bears the burden of proof under s.85(2) once the accused satisfies the court in terms of s.142(1) of the Evidence Act. 9 Both the accused and the Crown have also made submissions in relation to s.90 of the Evidence Act (discretion to exclude admissions). In the judgment on the admissibility of Dr. Sutisno's evidence, the evidence admitted on the voir dire is reviewed. It is not necessary here to repeat what is there said about the circumstances in which the ERISP took place. 10 The accused does not have a knowledge of and cannot speak English. He was therefore a person who was potentially at a disadvantage in dealing with police investigators. However, he had the assistance throughout the ERISP of an interpreter, Ms. Lee. It is important to observe:-