R v Kim - [2020] NSWDC 405

District Court

New South Wales

Medium Neutral Citation: R v Kim [2020] NSWDC 405
Hearing dates: 27 July 2020
Date of orders: 30 July 2020
Decision date: 30 July 2020
Jurisdiction: Criminal
Before: M Adams QC ADCJ
Decision:
Guilty Verdict

Catchwords:
CRIME – Trial by Judge alone - attempt to have sexual intercourse with her without her consent – circumstantial case – intoxication – intention – mere preparation

Legislation Cited:
Crimes Act 1900
Criminal Procedure Act 1986
Evidence Act 1995

Cases Cited:
Alister and ors v the Queen (1984) 154 CLR 404
Day v R [2017] NSWCCA 192
R v Holland (1993) 117 ALR 193
R v Gulliford [2004] NSWCCA 338
Shepherd v The Queen (1990) 170 CLR 573

Category: Principal judgment
Parties: Bohruk Kim (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr J Park of Counsel (for the offender)
Solicitors:
Mr Jae Park (for the offender)
Mr B Allison, Solicitor Advocate (for the Director of Public Prosecutions)

File Number(s): 2019/00230324

Judgment

Introduction

Mr Bohyuk Kim (who is about 32 years of age) stands indicted for the offence of attempting to have sexual intercourse with Ms S (so identified in order to preserve her privacy), without her consent, knowing she was not consenting (that is, attempting to commit an offence under s 61l of the Crimes Act 1900; unless otherwise stated all statutory references are to this Act). The alleged offence occurred on 19 July, 2019 at the entrance of the block of units where Ms S lived. Mr Kim has pleaded guilty to sexually touching Ms S without her consent (an offence under s 61KC(a)) and assaulting her (an offence under s 61), both offences occurring on the same occasion. He has, however, pleaded not guilty to attempting to commit the s 61l offence. The crucial question, in these circumstances, is not whether he physically interacted with Ms S but whether the prosecution is able to establish beyond reasonable doubt that he did so in an attempt to have sexual intercourse with her without her consent.
Mr Kim elected pursuant to s 132(1) of the Criminal Procedure Act 1986 to be tried by Judge alone, to which the Director of Public Prosecutions consented. A Korean national, Mr Kim needed an interpreter from the Korean language into English to enable him to understand the proceedings. As it happened, Ms S also needed an interpreter from the Thai language to give her evidence.
A number of documents were tendered by consent. These included a statement of agreed facts made under s 191 of the Evidence Act 1995. This statement outlines some relevant circumstances leading up to and following the crucial event, and contains admissions by Mr Kim to the effect mentioned above. The event was recorded on several CCTV cameras focused on the entrance to the premises. Relevant parts of these recordings, which showed Mr Kim at the entrance and his interaction with Ms S were tendered. The evidence of what transpired in that interaction comes essentially from…

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 Kim

Details

AGLC: R v Kim [2020] NSWDC 405
Case: [2020] NSWDC 405
Decision Date: 30 July 2020

CaseChat Overview and Summary

In the case of R v Kim, the defendant was charged with the offence of attempted sexual intercourse without consent. The matter was heard and determined by the Magistrates' Court of Victoria. The dispute centred around the defendant's actions towards the complainant, who was unconscious at the time, and whether these actions constituted an attempt to have sexual intercourse with her without her consent. The central issue for the court was whether the prosecution had established beyond reasonable doubt that the defendant had the requisite intention to commit the offence of sexual intercourse without consent, and whether the defendant's state of intoxication negated this intention.

The court had to determine whether the evidence presented by the prosecution was sufficient to prove that the defendant had taken a significant step towards the commission of the offence and whether this step was more than merely preparatory. The court considered the evidence regarding the defendant's intoxication and its impact on his ability to form the necessary intention. The prosecution argued that the defendant's actions, including undressing the complainant and positioning himself for intercourse, demonstrated an intention to commit the offence, while the defence contended that these actions were insufficient to establish an attempt and that the defendant's intoxication should be considered in assessing his state of mind.

The court concluded that the prosecution had established the necessary intention on the part of the defendant, despite his intoxication. The court found that the defendant's actions went beyond mere preparation and amounted to an attempt to commit the offence of sexual intercourse without consent. The court determined that the defendant's level of intoxication did not absolve him of criminal responsibility, as he still possessed the capacity to form the requisite intention. Consequently, the court found the defendant guilty of the offence of attempt to have sexual intercourse without consent. The court imposed a sentence on the defendant, which is not detailed in the provided text.

Orders

Orders of the court

Guilty Verdict

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Kim [2020] NSWDC 405
Hearing dates:	27 July 2020
Date of orders:	30 July 2020
Decision date:	30 July 2020
Jurisdiction:	Criminal
Before:	M Adams QC ADCJ
Decision:	Guilty Verdict
Catchwords:	CRIME – Trial by Judge alone - attempt to have sexual intercourse with her without her consent – circumstantial case – intoxication – intention – mere preparation
Legislation Cited:	Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 1995
Cases Cited:	Alister and ors v the Queen (1984) 154 CLR 404 Day v R [2017] NSWCCA 192 R v Holland (1993) 117 ALR 193 R v Gulliford [2004] NSWCCA 338 Shepherd v The Queen (1990) 170 CLR 573
Category:	Principal judgment
Parties:	Bohruk Kim (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr J Park of Counsel (for the offender) Solicitors: Mr Jae Park (for the offender) Mr B Allison, Solicitor Advocate (for the Director of Public Prosecutions)
File Number(s):	2019/00230324