R v Goo

[2023] NSWDC 631

District Court

New South Wales

Medium Neutral Citation:	R v Goo [2023] NSWDC 631
Hearing dates:	3 - 4 July 2023
Date of orders:	4 July 2023
Decision date:	04 July 2023
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Appeal dismissed.
Catchwords:	Appeal from Local Court – Issue whether the appellant was the driver of a motor vehicle which collided with a parked vehicle, whilst driver attempting to park his vehicle next to one already parked – Appellant and two Crown witnesses are Korean – Appellant gave evidence in Local Court – Magistrate accepted evidence of the two Korean ladies but did not believe appellant’s evidence – Magistrate in position of advantage over Judge, who did not see or hear the witnesses.
Legislation Cited:	Road Transport Act 2013
Cases Cited:	Nil.
Texts Cited:	Nil.
Category:	Principal judgment
Parties:	Crown – R (NSW) Appellant – Seoungjin Goo
Representation:	Counsel: Appellant – Mr Park, J. Crown – Mr Guazzo, T.
File Number(s):	2021/00205325
Publication restriction:	Nil.
Decision under appeal	Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 1 August 2022 Before: Acting Magistrate Still File Number(s): 2021/00205325

Judgment

Background

1. HIS HONOUR: This is an appeal against a conviction recorded by Acting Magistrate Still, sitting in the Local Court at Burwood on 1 August 2022.

2. The appellant was charged:

“That between 10.15pm and 10.30pm on 15 October 2021 at Rhodes in this State he did drive a motor vehicle New South Wales registration DDN 56L on a road namely Shoreline Drive at Rhodes whilst there was present in his breath the high range prescribed concentration of alcohol.”

3. The reading actually recorded by the breathalyser machine was 0.165 grams of alcohol in 210 litres of breath.

4. The sole issue tendered for the decision of the learned Magistrate was whether the appellant was the driver of the vehicle known as DDN 56L as at the time pleaded in the Court Attendance Notice.

5. There were four people involved in the relevant action. The first was a lady known as See Yeon Yuou. Her surname is the last of those three names. She also uses an English name “Chica” and for ease I will use that moniker. That lady was for most of the time in question in the company of Min Sun Baek, another Korean lady who also uses the English name Emma. I trust I shall be forgiven if I refer to her using that name. The third person involved in the action was of course the appellant Mr Goo.

6. The fourth person I do not have a name for. He has been described as the man in the suit or the man in the blue suit. Video film taken at the scene was Exhibit 3 in the Local Court. That has been displayed in this Court. The gentleman is Korean, that is proved by the evidence of the two ladies Chica and Emma, and he was much shorter than Mr Goo, younger than Mr Goo and Mr Goo has grey hair whereas the other man had black or very dark hair. The unnamed man was wearing a blue suit jacket, or it could have been a blue blazer. He is referred to by Chica as the suit man and a similar terminology was used by Emma. I shall refer to the second man as ‘blue suit’.

Witness Evidence

First Crown Witness

7. Emma was the owner of a Mazda motor car on the evening of 15 July 2021. She had driven it to a carpark on Shoreline Drive at Rhodes. Shoreline Drive is on the western side of the Rhodes peninsula fronting onto an inlet from Sydney Harbour that separates Rhodes from the nearby suburb across the inlet which would originally, before being drowned by Sydney Harbour, have been a creek. Unfortunately, the evidence does not disclose the parking requirement of the carpark in question. However, it is clear from the oral evidence that the parking was not parallel parking but either 45 degree parking or 90 degree parking. In fact what I have heard and seen seems to suggest it was 90 degree parking rear to kerb.

8. Emma had driven to the carpark on Shoreline Drive at Rhodes where she met her friend Chica. Emma was sitting in the driver’s seat of her car, Chica took the passenger seat and they were chatting. The black Mercedes Benz SUV is a model known as a G Wagon. It was a very large vehicle. Its registered number was that to which I earlier referred DDN 56L. The Mazda was in fact a CX-3 bearing registered number EOS 75B. There were only two persons in the Mercedes Benz, the appellant Mr Goo and blue jacket.

9. Other than the officer in charge, the first witness to give evidence was Chica. It is apparent from the evidence of Emma that the car space in which it was sought to park the Mercedes Benz was on the driver’s side of the Mazda, that is if the cars were the same size the driver’s window of the Mazda opened on to the front passenger window of the Mercedes Benz. Chica gave evidence that the Mercedes Benz appeared in front of Emma’s car. She then observed the Mercedes Benz reversing. She referred generally to Mr Goo the appellant as “grey hair”. She also then referred to the person she described as the passenger as wearing the blue suit, that is apparent from the witness’ answer to transcript page 9, line 38 when she points out that the driver had grey hair and the passenger was wearing a suit. This evidence was then given:

“Q. When they were reversing, when you first saw them reversing, what [w]as [sic] happening after that?

A. Oh, I saw the passenger guy with the suit on, he got out of the car. He was directing him, like, reverse it backwards...

Q. This was just in the car you saw...?

A. Yeah, and there he was backing too...”

10. The witness then said that they were trying to reverse for either 1 or 2 minutes. She then said that the car was being backed up really slowly and she thought that the Mercedes Benz would “drive past us” by which I assume she meant that it would not collide with Mazda. She then said that the Mercedes Benz collided with the Mazda. From the evidence given later by Emma it is clear that the collision was from the near rear-side with the appellant’s vehicle and the driver’s door of the Mazda.

11. When using the word driver’s car I speak advisedly. The appellant admits that the Mercedes Benz belongs to him maintaining however that he was not the driver. Chica’s evidence is this:

“He hit us. So, I got out of the car, start yelling at him to back it out.

Q. Who did you start yelling at?

A. Him.

Q. The man with the grey hair you say?

A. Mm-hm. But, he wasn’t listening so I chose to speak to the suit man.”

12. It is clear that Chica was of the view that the driver was intoxicated. She used the word drunk. She said that she could smell alcohol when she attempted to speak to him. She said that he was too drunk to reply. She said that initially she was speaking to the driver in English, then she heard Korean being spoken between the appellant and blue jacket and then she spoke to them in Korean. She phoned the police after obtaining no satisfaction when talking with blue jacket. She called the police but they took between 30 or 40 minutes to arrive at the collision site. About halfway through that period, according to Chica, blue jacket “disappeared”. That may merely be her way of trying to say that he left the scene. This evidence was then given:

“Q. Where was the man that you say that was the passenger, where was he standing at the time of the collision?

A. The passenger one?

Q. Yes.

A. He was leaning [?leading] towards our car.

Q. Was he in the car or out of the car?

A. Out.

Q. When the car collided how many people did you see get out of the Mercedes Benz?

A. One.

Q. The man you saw driving the car did you speak to him?

A. Mm-hm.

Q. What did you two speak about?

A. I told him to show me his driver licence. But he said, what licence?

Q. Was that in Korean or English?

A. Korean.

Q. When he said what licence what did you say back to him?

A. I told him there was an accident so show me your ID so we can claim the insurance. But he said, he didn’t drive.

Q. At that time that you say the driver were having this conversation where was the man that you say was dressed in the nice suit? Was he still there at that time?

A. Yeah, he was there. I think he was speaking with my friend [Emma].

Q. Was he involved in that conversation at all?

A. No.

Q. When the collision happened, did he try to pull the car out again and reverse it properly?

A. Yeah, he did.

Q. Was that before or after the conversation you had with him?

A. Before.”

13. A little later in her evidence in-chief Chica said that blue jacket spoke to her in Korean and suggested that there be a “money exchange”. She went on to say this:

“He was keep offering us the money. Like, I will give you, like, $3000, $5000. The price was keep going up, and then all of a sudden he disappeared.”

14. She said that the person she identified as the driver as distinct from blue jacket was not involved in that conversation at all because “he was too drunk.” The conversation with blue jacket about money lasted a few minutes. Her final piece of evidence in-chief was whether she saw blue jacket at any time in the driver’s seat of the Mercedes Benz and she said that she did not.

15. Shortly before that the video which she had taken which was Exhibit 3 in the Local Court was played piecemeal to the Local Court. The first subject of cross‑examination of Chica by counsel for the offender was about what was said on the tape. Eventually this evidence was given:

“Q. So you just watched the video again, the man in the blue jacket saying to the other man, saying, ‘Take a seat, let’s go home’. Is that right?

A. Yeah. Yeah, correct.

Q. You said that, just then in the video, you're not going anywhere because the police are coming.

A. Yes.

Q. Is that right? Is that what you said, right?

A. Correct.

Q. Now, that the video just ends just like that as you can see the man [with] grey hair is about to go into the passenger seat. Can you see that on the screen?

A. Yes I can see.

Q. Did he take a seat in the passenger seat?

A. He did.”

16. A little later she was asked whether blue jacket got into the driver’s seat of the Mercedes Benz and she said that she did not see any such thing. When challenged about Mr Goo, the man with the grey hair, saying “I didn’t drive”, she admitted that he did say that but she herself had seen him driving.

17. A little later Chica was cross-examined about asking both “Grey hair” and “blue jacket” about a form of identification. This evidence was then given:

“Q. The reason that you, you can either agree or disagree. The reason that you are asking for ID of both people, not just one, but two of them, is because you weren’t sure who was the driver? Is that right? Do you understand my question?

A. No.

HIS HONOUR

Q. Did you ask the man in the blue jacket for his ID because you didn’t know who was driving?

A. No, I knew a hundred per cent who was driving.”

18. It would appear that Chica was asking for identification from at least one of the two persons who had been in the Mercedes Benz. In answer to further questions Chica said that she was certain that blue jacket was out of the vehicle directing it to park at the time that it was being reversed into the car space but unfortunately hit the Mazda motorcar. She said that the driver stopped the vehicle after hitting the Mazda for a few seconds and then drove out. She believed that he was driving out “to park in the normal way” meaning no doubt to readjust the orientation of the vehicle such that he could park it in a bay without touching a vehicle on either side of the parking bay he was seeking to use. She said that after the collision she, Chica, got out of the car before Emma did and then the driver “grey hair” got out of the Mercedes Benz.

19. A little later this question and answer were given:

“Q. Are you certain that the man with grey hair got out of the driver’s seat. Is that right?

A. Yes.

Q. There was a conversation between all four of you?

A. After, yes.

Q. If I put it to you that it was the man in the blue jacket actively talking about the money. Sorry, to the worst feedback [sic] he was saying that I pay you this money to fuck off. Is that right?

A. Yes.”

20. Clearly there was some problem in transcribing what counsel put but it is clear that the question was directed to the fact that blue jacket was offering money so that Emma and Chica would be satisfied and not make any complaint to the police. Again later in cross-examination at page 25, line 40 she was a hundred per cent certain who was driving the vehicle.

Second Crown Witness

21. The next witness was Emma. Her evidence at T29.13 is that there was only one person in the car. She gave this description of the dynamics of attempts by the driver of the Mercedes Benz to park the vehicle:

“Q. You said you saw -, when you saw the car pull in and then he tried to reverse, what happened from there?

A. What happened there? Oh, he actually tried to park...beside of my car but he tried to park, but the - he couldn’t park properly, he just backward, forward, and then moved really several time, but the - he couldn’t park properly. And then finally his car came close to my car and crossed on my car on the driver’s side.”

22. A little later in cross-examination the witness agreed that when she used the word “crossed” she meant to use the word collide. A little later this evidence was given:

“After that he crossed to my car driver’s side and he - after he - his car moved forward, and after that we just got out of the - we start quickly, and then the - I say to him open the door and give me the licence.”

23. She then said that there was no one else in the car at the time that it collided with her vehicle. When asked about the other male that she had seen she said that he was “behind the car” but is not clear whether that was her car or the Mercedes Benz.

24. At page 33, this evidence was given:

“Q. Yeah, so who did you go to, to ask for a licence?

A. To the driver - the guy.

Q. You're pointing to the gentleman in court?

A. Yeah, but that time, when he opened the door, I realised he’s - was drunk really badly.

Q. How did you know that?

A. Because I...got the smell - really bad smelling. But he actually that time he didn’t realise what happened.

Q. So when, I’ll just stop you there. So you said when he got out of the car did you walk to the driver’s side of the car to get his licence?

A. Oh yes, right.”

25. A little later she said that she thought that he did not realise what had happened, although she did not use the word “realised” she used the word “recognise.”

26. The witness took two photographs which became Exhibit 4 in the Local Court. Eventually, one of those photographs was taken at 10.09pm. It is of the front of the Mercedes Benz motorcar, registered number DDN 56L with the headlights still switched on and with a person sitting behind the wheel. One cannot see any person sitting on the passenger side at the front of the vehicle. The other photograph was taken at 10.12pm and shows a man with grey hair wearing spectacles, a brown jacket, brown trousers and a white open-necked shirt. There can be no dispute based on what one sees in the video taken by Chica, that the man photographed at 10.12pm by Emma was the appellant.

27. When asked when the photograph was taken, Emma replied with an answer as to why it was taken. It was this:

“Because after we got out of our car and then we were requesting to provide his driver licence, by that time he was in the car. And after the...I kept requesting him to provide the driver licence because he didn’t provide his driver licence after he got out of his car as well and then we kept talking in the outside. And then the - I took it, it took us so long that it has tried to keep the evidence that’s why it took, go to his car, in front of his car to keep his number plate.”

28. In essence Emma was saying that the first photograph of the front of the Mercedes Benz motorcar was taken to get the number plate of the vehicle and that clearly is shown in the first photograph in Exhibit 4. She then said that the second photograph was taken after the appellant left the motor vehicle, when, again, she was insisting that he produce his driver’s licence.

29. Eventually, Emma agreed that she did not tell the police that blue jacket was out of the vehicle giving directions to the driver but it may have taken the police some little time to interview each of the ladies who obviously do not have English as their first language and whose English is hardly satisfactory for any formal purpose. A little later, the witness said that she, when she initially approached the driver of the Mercedes Benz she went to the passenger side window which was close to her and when the window was lowered, that is when she asked for the driver to give her his licence. She said that she never went to the driver’s side window of the Mercedes Benz. However, that appears to be inconsistent with what she told the police in a statement recorded in a notebook. The statement is this:

“I walk up to the driver’s window to ask for his licence, but when he lowered the window the smell of alcohol hit me.”

30. This is, according to counsel for the appellant, a major inconsistency in her evidence. However, she maintained what she had said on oath not adhering to what was contained in paragraph 9 of her statement to the police.

31. A little later this evidence was given by Emma:

“Q. But, you say from your memory and the photo, you say that, he got into the driver seat again.

A. Yeah. In that time before the accident he never - his friend never was in the car. He was always in the outside.

Q. So he’s not even a passenger, he never got into the car, the man in the blue jacket?

A. I don’t know with the photo what happened but the - when I - when I saw that the two guys, he was outside always.”

32. In other words, she was persisting with the allegation that she saw blue jacket outside the vehicle and only after she saw him outside the vehicle did the Mercedes Benz collide with her motor car. Emma was asked whether she ever heard blue jacket admit to being the driver, but she said that he did not. The witness went on to agree that when the reversing was actually being performed she was not able to see who was driving at the time but later was adamant again that she saw the appellant behind the driver’s wheel and not blue jacket.

33. To try shorten matters his Honour asked this question and got this answer:

“HIS HONOUR

He’s putting another one, and that is that you didn’t see the man in grey hair get out of the driver side of the vehicle. Do you agree with that or disagree with that?

A. Disagree.”

34. It was later put to the witness that she was confused as to who the driver of the vehicle was at the time, that it was possible that the man in the blue jacket was driving the vehicle and she said no five times. Again, she was asked whether it was possible that she was confused in relation to who was driving the vehicle and she repeated no twice and then said that that she was 100 percent certain he was the driver, meaning the current appellant or the accused in the Local Court. It was then formally put by Mr Park to Emma that the driver of the vehicle was the man in the blue jacket and she denied that he was the driver.

35. The learned Magistrate said this in his reasons:

“I found the evidence of Ms Yuou and Ms Baek to be consistent. They both gave evidence of the defendant trying to reverse park next to the car in which they were sitting at Rhodes, and that several attempts were made. They both give evidence, that at that time, there was only one person in the car, that the other person that was present in the blue jacket, was directing that person at the rear of their car and that that is when a collision occurred.

It is fairly obvious from the video that Mr Goo is the grey-haired man that is referred to in the evidence. A video was taken shortly after the collision which showed Mr Goo, the grey-haired man, and also a shorter person with dark hair in a blue jacket. Both witnesses gave evidence that the defendant was the driver of the vehicle and that after the collision he drove and parked the vehicle in a parking spot, I think, adjacent to their vehicle. Both them say, and it is telling, that there was only one person that got out of the vehicle after the accident, and that was the grey haired person, Mr Goo.

And their evidence is that he was the only one ever observed by either of them in the driver seat. Mr Goo, at that time, was also wearing grey coloured clothing. That person that either - well Mr Goo was asked for his ID. He did not provide it, or his license. He was clearly drunk, and that is observable from the video where he staggers. It is also clear that the person in the blue jacket, on their evidence, was attempting to negotiate a monetary solution, one assumes so the police were not called.”

36. The learned Magistrate admitted that Emma may have been confused about which side of the vehicle she went to in order to initially approach Mr Goo. His Honour did not think that that was particularly relevant because her evidence, either way taken, was that she observed Mr Goo in the driver’s seat. The learned Magistrate then went on to discuss the photographic evidence.

37. Unlike his Honour, I do not put much emphasis at all on the minor inconsistency of on which side Emma approached the appellant, either from the passenger side front window or from the driver’s window. In either case, what happened was the same, that the window was lowered and she saw there Mr Goo and he appeared to her to be awfully drunk because of the smell of alcohol that she experienced when taking in the air from within the vehicle. His Honour then went on to say this:

“The video and photographic evidence does show a confrontation between Mr Goo and Ms Yuou, where he does appear [as she said] in her evidence to get into her face. And it does show the man in the blue jacket, after attempting to negotiate a resolution of the issue, grabbing Mr Goo and putting him back into the vehicle on the passenger side. The person in the blue jacket then leaves before the police arrives, apparently providing a story that he is going to get money.”

38. Of course, the video does not show the blue jacket leaving the scene and the “apparently providing his story that he was going to get money” was what Chica believed that he said to her before he left. His Honour then continued in this fashion:

“There is an obvious difference in appearance between the man in the blue jacket and the defendant. There is no doubt who the grey-haired man was, and that is Mr Goo. Both of those witnesses were, on many occasions, 100 percent sure that the person with the grey hair, Mr Goo, was the driver, that they observed that person drive in, that they observed that person reversing, and they saw that person getting out of the vehicle after the incident. That so, whether this is raised by defence or not, the vehicle was tinted. They were quite sure the man in the blue jacket was never in the car at the time of driving and there were only two persons present at the scene. In my view, their evidence is supported by the statement they made to police. Even though made some time later they are supported by the video taken by Ms Yuou, and by the photographic evidence of Ms Baek.”

39. I should point out that it was only Emma that made a statement to the police contemporaneously a statement was taken from Chica later. His Honour then continued thus:

“It also appears to be the case that Ms Baek says she made an insurance claim, one assumes in relation to the insurance on the defendant’s vehicle and that the damage has been fixed. How that can be, unless the defendant accepted liability, I do not know. It is probably a red herring.”

40. I have interrupted the paragraph to point out to the learned Magistrate that one can make a claim on one’s own insurance company for damage to one’s own car and that claim should be honoured whether the insurer obtains recovery from a third party insurer is another moot point. In any event, it was an extreme red herring. However, his Honour then went on to say this:

“Anyway, I accept the evidence given by the two women. They do not appear to me to have any axe to grind or any motivation not to tell the truth. Their evidence is consistent and to me, was unshaken in cross-examination. They were always adamant that it was the grey-haired person at the scene who was the driver at the relevant time.”

41. I must point out that I am sitting here on appeal, hearing an appeal on paper. I have not had the advantage of seeing either Chica or Emma or Mr Goo give their evidence. His Honour had the advantage of seeing and hearing the witnesses and making his own assessment of their evidence. His Honour clearly accepted that Chica and Emma were telling the truth, they were consistent with each other and made it clear what they say had happened. His Honour appears to have accepted them. In those circumstances, I must give way to his dominant position where the subtleties of demeanour and deportment and even lingual presentation can affect the outcome of an oral hearing.

Defence Witness Evidence

42. His Honour then went on to contrast the evidence called by the prosecution with the evidence given by the defence. His Honour said this:

“In contrast, the defendant says that the man from a driver private service came to his money changing office at Strathfield about 5pm and he told that person he was going to drink and ask for a driver from that service to attend his office at 8 o’clock. And he says that person arrived. That persons was the man in the photographic evidence as the man in the blue jacket. And he asked that person to drive him by the river to clear his head. This is the case, even though his office was in Strathfield and at that time he resided in Strathfield. He says he sat in the passenger seat and went to sleep. And the first he knew of any accident was when he woke up and saw the negotiations being conducted by the man in the blue jacket with the two women. He says he never drove from the office. He does acknowledge [that] he was drunk. He says, “One and a half bottles of Johnny Walker and three bottles of red” and if that were true he would have been asleep when he got into the car. It is an impossible amount of alcohol. A quick counting indicates that that amount of alcohol would contain at least 60 standard drinks if that were true it is hard to see how the appellant survived the ingestion of that much alcohol. I should point out that the oral evidence given by him is that he was drinking Johnny Walker Black Label Scotch and the three bottles of red wine were bottles of Grange Hermitage. The appellant must be forgiven for committing the oenophile’s sin of taking a very good red wine after imbibing a large amount of whiskey.”

43. The Magistrate went on to say this about the appellant:

“So, he says he was never the driver. He only got out of the vehicle, which was his vehicle, at Rhodes, because he heard rather noisy negotiations between the man in the blue jacket and the other people. In other words, he did not realise that there was any accident at all at the time. He says he has made inquiries of the driver service to find out who the driver was but was told that that person ran off the next day. And also, the manager of the service had also disappeared. While it is said that there was some burden on the prosecution to chase down a rabbit such as that, where the driver says he was not the driver, to my mind his account is not only very convenient, but also unbelievable.”

44. Again, the learned Magistrate had the advantage of seeing and hearing Mr Goo give his evidence and if he formed the view that the evidence given by the appellant was not worthy of any belief, he was entitled to reject it out of hand which clearly, he did.

45. It has been submitted on behalf of the appellant that I would have a reasonable doubt about the identity of the driver, that there was a reasonable possibility that it was “blue jacket” and therefore I should set aside the conviction accorded. I decline to do so. His Honour clearly rejected the evidence of the appellant, he described it as unbelievable, and I concur that the case mounted on behalf of the appellant has no credit worthiness whatever. For those reasons the appeal is dismissed.

46. Any other orders sought?

47. PARK: Yes your Honour there’s a further application. I do note that the conviction appeal is now dismissed. Regarding his disqualification there’s some discussions made - he gave evidence regarding mandatory interlock order. So the current order as stands--

48. HIS HONOUR: Are you seeking to vary the penalty imposed?

49. PARK: Not the penalty your Honour but the disqualification.

50. HIS HONOUR: The learned Magistrate made it clear that he didn’t believe your client that no-one in the family has a vehicle into which the device can be fitted. I don’t accept that evidence, nor do I accept the evidence that he has no capacity to purchase another vehicle of any kind into which an interlock device could be installed. So in my view he hasn’t made out the pre-requisites for an exemption order under s 212 of the Road Transport Act 2013.

51. You are asking me now to accept evidence that was rejected by the learned Magistrate and he was in a better position to know than I am. There are other ways of doing it, other than by evidence from your client. It may be that the wife and the daughters would have to put on evidence, and I don’t know about his business, I don’t know if he is involved in money changing in Strathfield. Does he have any employees? I don’t know. Do any of them have vehicles? I don’t know.

52. Subsection (4) provides that a person has access to a vehicle for the purpose of subsection (3) if the person is the registered operator, owner or part owner of a vehicle or shares the use of the vehicle with the registered operator, owner or part owner of the vehicle and it is reasonable in all the circumstances to install an interlock device in that vehicle.

53. So, there is nothing that satisfies subsection (4). An interlock exemption order must not be made merely because he cannot afford the cost of installing or maintaining an interlock device or will be prevented from driving a vehicle in the course of his or her employment if a mandatory interlock order is made or has access to a vehicle but the registered of the vehicle refuses to consent the installation of an interlock device in the vehicle.

54. Application for the variation of the mandatory interlock order is refused.

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Decision last updated: 16 May 2024