R v Hwang - [2023] QCA 90

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hwang [2023] QCA 90

PARTIES:

R
v
HWANG, Sanghyun
(applicant)

FILE NO/S:

CA No 26 of 2022
SC No 945 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 28 July 2016 (Daubney J)

DELIVERED ON:

5 May 2023

DELIVERED AT:

Brisbane

HEARING DATE:

31 October 2022

JUDGES:

Mullins P, Bond JA and Crow J

ORDER:

Application for extension of time to appeal against conviction refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the applicant was convicted of murder – where the applicant applies for an extension of time to appeal against the conviction – where an issue at trial in relation to the case under s 302(1)(b) of the Criminal Code (Qld) was whether the prosecution could prove beyond reasonable doubt that the applicant choked the deceased in the prosecution of the unlawful purpose of stealing the deceased’s money – where at trial it was not in issue that the applicant killed the deceased by choking him – where the applicant submits that fairness required the trial judge in directing the jury on s 302(1)(b) to restate the defence case by reference to the applicant’s evidence that he was defending himself after the deceased pushed him and therefore did not choke the deceased in the prosecution of the unlawful purpose of robbing him – whether a miscarriage of justice because of the trial judge’s directions on s 302(1)(b)

Criminal Code (Qld), s 302

R v Georgiou & Ors (2002) 131 A Crim R 150; [2002] QCA 206, cited
Seiffert v The Queen (1999) 104 A Crim R 238, cited
Tully v The Queen (2006) 230 CLR 234; [2006] HCA 56, cited

COUNSEL:

M H Hynes for the applicant
C W Wallis for the respondent

SOLICITORS:

Owens and Associates for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MULLINS P: On 28 July 2016, Mr Hwang was convicted after trial before a jury in the Supreme Court of murder (count 1). At the commencement of the trial, he pleaded guilty to interfering with a corpse (count 2). Mr Hwang filed his application for an extension of time to appeal against the conviction on count 1 five and one-half years after the conviction. As the prospects of success on the appeal affect whether it would be in the interests of justice to grant the extension, the Court heard the arguments advanced for and against whether an appeal could succeed.
It was not in issue at the trial that Mr Hwang killed Mr Kim by choking him on 16 December 2013. The prosecution’s case at trial that the killing amounted to murder was left to the jury on three alternative bases under paragraphs (a), (b) and (e) respectively of s 302(1) of the Criminal Code (Qld). It was in issue whether the prosecution…

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 R v Hwang

Details

AGLC: R v Hwang [2023] QCA 90
Case: [2023] QCA 90
Decision Date: 5 May 2023

CaseChat Overview and Summary

In the case of R v Hwang, the applicant appealed against his conviction of murder, seeking an extension of time to appeal. The applicant argued that the trial judge’s direction to the jury on the elements of murder under section 302(1)(b) of the Criminal Code (Qld) amounted to a miscarriage of justice. Specifically, the applicant contended that the trial judge failed to restate the defence case by reference to his evidence that he was defending himself after the deceased pushed him and therefore did not choke the deceased in the prosecution of the unlawful purpose of robbing him.

The court was required to determine whether the trial judge’s direction to the jury on section 302(1)(b) constituted a miscarriage of justice, given that the applicant’s evidence was that he acted in self-defence. The court needed to assess whether the trial judge’s direction appropriately encompassed the applicant’s defence case, particularly concerning the issue of whether the choking was done in the prosecution of an unlawful purpose. The court also needed to consider whether any irregularity in the trial judge's directions was sufficient to warrant an extension of time to appeal.

The court held that the trial judge’s direction to the jury did not constitute a miscarriage of justice. The court found that the trial judge’s direction appropriately covered the prosecution’s case and adequately informed the jury of the elements of the offence under section 302(1)(b). The court emphasised that the applicant’s evidence was before the jury and that the jury was properly directed on the principles of self-defence. Consequently, the court found that there was no miscarriage of justice that warranted an extension of time to appeal.

Accordingly, the court refused the application for an extension of time to appeal against the conviction.

Orders

Orders of the court

Application for extension of time to appeal against conviction refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 302(1) of the Code sets out each of the circumstances in which a person who unlawfully kills another is guilty of murder. One of those circumstances is paragraph (b):“if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;”Section 302(3) provides that under subsection (1)(b) it is immaterial that the offender did not intend to hurt any person.Summary of the relevant evidence at the trial The victim Mr Kim was killed on 16 December 2013. His body was found by police three days later in a shallow grave at the back of a house in Algester which Mr Hwang used to rent. The body had been stripped naked. On 18 December 2013, Mr Hwang’s house at South Brisbane was searched. A total of $9,400 in $50 and $100 notes was located in a garden bed adjacent to Mr Hwang’s bedroom window which Mr Hwang had thrown out the window when the police arrived to do the search. The money was in two bundles, the first of which contained $3,350 and the second contained $6,050. Another $600 in $50 notes was found by police in a black bag in the bedroom occupied by Mr Hwang at the South Brisbane residence. Mr Hwang was interviewed by police commencing at 12.53 am on 19 December 2013 for the purpose of providing a witness statement. The recording of that interview (exhibit 17) was played to the jury. Mr Hwang is from South Korea and the interview proceeded with the assistance of a police officer who spoke Korean. Mr Hwang was told that Mr Kim was missing, a picture was shown to him of Mr Kim and he was asked whether he had seen him and he said he had not. He was asked whether he knew Mr Kim and he said he did not. After the deceased’s body had been located, Mr Hwang was interviewed again on 19 December 2013 commencing at 10.08 pm for the purpose of a formal record of interview with the assistance of a qualified Korean interpreter. The recording of that interview (exhibit 20) was also played to the jury. After being presented with text messages between himself and Mr Kim from 16 December 2013, Mr Hwang explained he responded to an advertisement on a website as he needed Australian dollars, a person rang him back and he did not know that it was Mr Kim, as he only had the phone number. He said the two of them spoke about converting some money. Mr Kim wanted to exchange around AUD$10,000. During the course of the interview, the police revealed that Mr Kim’s body had been located in a shallow grave at the Algester house. After a short break in the interview, Mr Hwang was invited to say what happened on 16 December 2013 in his own words. He said that he ended up going to Mr Kim’s house and took him to the Algester place where he said his friend would do the deal with Mr Kim. They were talking while waiting for the friend. Mr Hwang pretended they were looking at the house. Mr Hwang stated:“So I … strangled … Kim’s neck from behind. But then he resisted. And then, so, I ended up putting more strength into my body. And I got scared and frightened, so my body stayed in a state where the whole thoughts of strength kept going. And then ah, my strength ran out and that person’s strength ran out too. Well, I didn’t know how much time had passed. I didn’t know how hard I was strangling him. Umm, I just thought he’d fainted, but I looked at his face and the situation was serious. And there was almost no, not even small movements and I don’t think he was breathing. Ah, well, as I was looking at him, I got scared. I didn’t know what I should do first. I just thought if I got rid of him quickly. So, I got rid of traces … I moved him from inside to the garden. And then I dug into ground. Yeah, and that’s that.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Hwang [2023] QCA 90
PARTIES:	R v HWANG, Sanghyun (applicant)
FILE NO/S:	CA No 26 of 2022 SC No 945 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Conviction: 28 July 2016 (Daubney J)
DELIVERED ON:	5 May 2023
DELIVERED AT:	Brisbane
HEARING DATE:	31 October 2022
JUDGES:	Mullins P, Bond JA and Crow J
ORDER:	Application for extension of time to appeal against conviction refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the applicant was convicted of murder – where the applicant applies for an extension of time to appeal against the conviction – where an issue at trial in relation to the case under s 302(1)(b) of the Criminal Code (Qld) was whether the prosecution could prove beyond reasonable doubt that the applicant choked the deceased in the prosecution of the unlawful purpose of stealing the deceased’s money – where at trial it was not in issue that the applicant killed the deceased by choking him – where the applicant submits that fairness required the trial judge in directing the jury on s 302(1)(b) to restate the defence case by reference to the applicant’s evidence that he was defending himself after the deceased pushed him and therefore did not choke the deceased in the prosecution of the unlawful purpose of robbing him – whether a miscarriage of justice because of the trial judge’s directions on s 302(1)(b) Criminal Code (Qld), s 302 R v Georgiou & Ors (2002) 131 A Crim R 150; [2002] QCA 206, cited Seiffert v The Queen (1999) 104 A Crim R 238, cited Tully v The Queen (2006) 230 CLR 234; [2006] HCA 56, cited
COUNSEL:	M H Hynes for the applicant C W Wallis for the respondent
SOLICITORS:	Owens and Associates for the applicant Director of Public Prosecutions (Queensland) for the respondent