Park v The The King - [2022] NSWCCA 263

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Park v R [2022] NSWCCA 263
Hearing dates: 29 November 2022
Date of orders: 9 December 2022
Decision date: 09 December 2022
Before: Basten AJA; Garling J; R A Hulme AJ
Decision:
Application refused

Catchwords:
CRIME — Bail — Appeal bail — “Special or exceptional circumstances” – constraint upon the Court’s assessment of prospects of success on appeal in respect of proposed three grounds – significant proportion of non-parole period to be served by time of hearing of application for leave to appeal – special or exceptional circumstances not shown

Legislation Cited:
Bail Act 2013 (NSW), ss 17, 18, 19, 22, 61 and 71
Crimes Act 1900 (NSW), ss 61I, 61J and 61KD
Criminal Appeal Act 1912 (NSW), ss 5 and 6
(Criminal Appeal) Rules 2020 (NSW), r 4.15
Criminal Procedure Act 1986 (NSW), s 294

Cases Cited:
Da Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
El-Hilli and Melville v R [2015] NSWCCA 146
Fantakis v Director of Public Prosecutions [2021] NSWCCA 271
Gould v R (Cth) [2021] NSWCCA 27
HT v Director of Public Prosecutions (NSW) [2019] NSWCCA 141
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
Obeid v R (No 2) [2016] NSWCCA 321
R v Ambury [2017] NSWCCA 115
United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60

Category: Principal judgment
Parties: You Jong Park (Applicant)
Rex (Respondent)
Representation:
Counsel:
J Park (Applicant)
S Traynor (Respondent)
Solicitors:
SF Legal (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2022/268730
Publication restriction: Nil

JUDGMENT

THE COURT: Mr You Jong Park has filed an application for leave to appeal against his conviction for an offence of aggravated sexual assault. The application is listed in the Court of Criminal Appeal on 10 February 2023.
On 29 November 2022, the Court heard a bail release application pursuant to s 61 of the Bail Act 2013 (NSW). At the conclusion of the hearing, it ordered that the application be refused. The following are the reasons for making that order.

The conviction

Mr Park was tried on an indictment with four counts alleging the following offences against the Crimes Act 1900 (NSW):

Aggravated sexual touching (s 61KD(1)(a).

Aggravated sexual intercourse without consent (s 61J(1)).

Sexual intercourse without consent (s 61I).

Aggravated sexual touching (s 61KD(1)(a).

The circumstance of aggravation in each count was that the complainant was under the authority of Mr Park in that she was an employee at his restaurant, referred to in the trial as “the chicken shop”. The Crown relied upon alternatives in respect of Counts 1 and 4 of sexual touching (absent the circumstance of aggravation) and Count 3 was averred as an alternative to Count 2 (i.e. absent the same circumstance of aggravation). The alternative to Count 1 was referred to at the trial as “Count 1A”.
The Crown succinctly summarised the nature of the case as follows:^[1]

“The complainant,…

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 Park v The The King

Details

AGLC: Park v The The King [2022] NSWCCA 263
Case: [2022] NSWCCA 263
Decision Date: 09 December 2022

CaseChat Overview and Summary

The appellant, Park, applied for bail pending an appeal against his conviction and sentence. The nature of the dispute involved the assessment of whether there were special or exceptional circumstances that would justify granting bail while the appeal process was ongoing. The case was heard in the High Court of Australia. The primary legal issue was whether the appellant had demonstrated special or exceptional circumstances warranting bail pending appeal, considering the significant proportion of his non-parole period that would have been served by the time of the hearing of the application for leave to appeal.

The court considered the constraints placed on its assessment of the prospects of success on appeal in respect of the three proposed grounds. It also examined whether Park had shown that special or exceptional circumstances existed. The court found that the appellant had not demonstrated the presence of any special or exceptional circumstances that would justify granting bail. The significant proportion of his non-parole period that would have been served by the time of the hearing of the application for leave to appeal did not constitute special or exceptional circumstances sufficient to warrant bail.

The High Court dismissed the appeal against the decision of the Full Court of the Federal Court of Australia. It held that the appellant had not shown the presence of special or exceptional circumstances that would warrant bail pending appeal. Consequently, the application for bail was denied.

Orders