Kim v The King - [2023] VSCA 228

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0115

AHN SUP KIM	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, WALKER and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 August 2023
DATE OF ORDERS:	22 August 2023
DATE OF REASONS:	20 September 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 228
JUDGMENT APPEALED FROM:	DPP v Kim [2022] VCC 490 (Judge Tinney)

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CRIMINAL LAW – Appeal – Conviction – Sexual assault and rape charges – Whether trial judge misdirected jury that act relevant to one sexual assault charge not in dispute – Senior defence counsel addressed jury on basis that act in dispute – Junior defence counsel conceded act not in dispute – Trial judge instructed jury act not in dispute – No exception taken – Jury question asking for clarification – Junior defence counsel again conceded act not in dispute – Jury question answered accordingly – Ground upheld.

CRIMINAL LAW – Appeal – Conviction – Whether judge erred in directing jury that certain denials by applicant could be used as evidence of incriminating conduct – Whether judge erred in failing to direct jury to consider lies separately in relation to each charge – Bald denials incapable of being used as evidence of incriminating conduct absent ‘bootstraps’ reasoning – Necessity for direction that lies to be considered separately in relation to each charge – Substantial miscarriage of justice – Appeal allowed – New trial ordered.

Jury Directions Act 2015, s 20.

R v Gionfriddo (1990) 50 A Crim R 327 discussed – R v Laz [1998] 1 VR 453, R v Smith [2002] VSCA 219 referred to.

CRIMINAL LAW – Appeal – Conviction – Whether judge’s charge unbalanced in content and tone – Charge not unbalanced – Ground dismissed.

McKell v The Queen (2019) 264 CLR 307 discussed.

CRIMINAL LAW – Appeal – Conviction – Whether jury should have entertained a reasonable doubt about applicant’s guilt on two charges – Jury not bound to entertain reasonable doubt – Ground dismissed.

Criminal Procedure Act 2009, s 276.

M v The Queen (1994) 181 CLR 487, Pell v The Queen (2020) 268 CLR 123, Dansie v The Queen (2022) 96 ALJR 728 discussed.

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Counsel
Applicant:	Mr D Dann KC with Ms C Boston
Respondent:	Mr C Boyce KC
Solicitors
Applicant:	Doogue & George
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
WALKER JA
TAYLOR JA:

Introduction and summary

On 5 March 2022, following a 14 day trial, a jury in the County Court convicted the applicant of one charge of rape (charge 7 on the indictment) and six charges of sexual assault (charges 2–6 and 8).
The complainant in respect of all charges was Cynthia Price[1] who, at the relevant time, worked as a hostess at a karaoke club in the Melbourne CBD. The applicant visited that club on the night of 26 September 2017. All the offending was alleged to have occurred there in the early hours of the following day.
[1]A…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kim v The King

Details

AGLC: Kim v The King [2023] VSCA 229
Case: [2023] VSCA 228
Decision Date: 20 September 2023

CaseChat Overview and Summary

The appeal in Kim v The King involves the applicant's conviction on sexual assault and rape charges. The Supreme Court of Appeal was tasked with assessing several grounds of appeal, including the adequacy of jury directions, the use of certain denials as evidence, the balance of the judge's charge, and whether the jury should have entertained reasonable doubt regarding the applicant's guilt. The applicant's conviction was challenged on multiple fronts, with the central contention being the handling of jury directions and the admission of certain denials as incriminating evidence.

The legal issues before the court revolved around whether the trial judge misdirected the jury regarding the acts relevant to one sexual assault charge, whether the judge erred in admitting certain denials as evidence of incriminating conduct, and whether the judge's charge was unbalanced in content and tone. The court also considered whether the jury should have been directed to entertain a reasonable doubt about the applicant's guilt on two specific charges.

The court found that the trial judge had indeed misdirected the jury in relation to one sexual assault charge, as the act in question was not in dispute. Despite junior defence counsel conceding this point, the jury still sought clarification, and the trial judge responded by instructing the jury that the act was not in dispute. The court held that this misdirection constituted a substantial miscarriage of justice. Additionally, the court ruled that the judge erred in admitting the applicant's denials as evidence of incriminating conduct and in failing to direct the jury to consider each lie separately for each charge. The court concluded that these errors warranted a new trial. The other grounds of appeal, including the balance of the charge and the jury's duty to consider reasonable doubt, were dismissed as they did not result in a substantial miscarriage of justice.

The court allowed the appeal on the grounds of misdirection and improper admission of evidence, ordering a new trial for the applicant. The other grounds of appeal were dismissed, and no further orders were made in relation to those issues.

Orders