R v Kim
[1999] VSC 56
•3 February 1999
SUPREME COURT OF VICTORIA
CRIMINAL JURISDICTION Do not Send for Reporting Not Restricted
No. 1422 of 1997
| THE QUEEN |
| v |
| KYU HYUK KIM |
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JUDGE: | COLDREY, J. | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 February 1999 | |
DATE OF RULING: | 3 February 1999 | |
CASE MAY BE CITED AS: | ||
MEDIA NEUTRAL CITATION: | [1999 VSC 56 | |
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Application by Crown to admit into evidence a particular witness' statement - Question of voluntariness - Application refused - Evidence excluded on judge's discretionary basis.
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APPEARANCES: | Counsel |
For the Crown | Mr. R. A. Elston |
| For the Accused | Mr. P. Morrissey |
HIS HONOUR:
Application is made by the Crown for the admission into evidence of a statement by Miss Sarah Soryung Kim, a cousin of the accused. The relevant portion of the statement reads: "On the night the police arrested Kyu Kim at 51 Parkside Street, Elsternwick I was present there. My cousin Kyu Kim was asked by the police had he told his wife what was going on. The police told Kyu Kim that he should tell his wife what was happening. My cousin Kyu Kim then spoke to his wife in Korean. I think it is prior to this that he gave his wife some money and also took off his wedding ring and gave it to her. He told his wife the following: 'my uncle and I had an argument, he punched me, I punched him and knocked him out. I put him in the car, drove him to Springvale, left him with some Vietnamese people, and said to them do what you want with him'".
This material is said to constitute part admission, as to the participation in an assault on a deceased), and part false denial as to the deceased's ultimate fate. At the initial trial of this matter the statement was ruled inadmissible. This was because the Crown had failed to prove the voluntary character of the accused's utterances. The Crown now seeks to revisit that ruling.
In opposing the admission of the material into evidence the defence, as a threshold issue, contended that to re-litigate the ruling on the question of voluntariness, (which involved a finding of fact by the trial judge after the hearing of all the relevant evidence on a voir dire), would be an abuse of process as defined in Rogers v. R 1994 181 C.L.R. 251. In Rogers case the Crown had sought to lead material inculpatory of armed robbery from records of interview previously ruled to have been involuntarily made in relation to other offences of armed robbery for which the accused had earlier been tried.
In determining that the tender of the records of interview in the face of the earlier ruling would be an abuse of process, Chief Justice Mason remarked at p.256 and 257:
"In the present case a weighing of these considerations inevitably compels the conclusion that a stay should be ordered. The public interest in securing the conviction of the appellant is clearly outweighed by other relevant considerations. The tendering of the confessions by the prosecution was vexatious, oppressive and unfair to the appellant and it exposed him to relitigation of the issue of the voluntariness of the confessional statements in the records of interview. This issue had already been conclusively decided in the appellant's favour because the confessions sought to be tendered - although relating to different crimes - were made at the same time and in exactly the same circumstances as the confessions that were the subject of the voir dire. Relitigation in subsequent criminal proceedings of an issue already finally decided in earlier criminal proceedings is not only inconsistent with the principle that a judicial determination is binding, final and conclusive (subject to fraud and fresh evidence), but is also calculated to erode public confidence in the administration of justice by generating conflicting decisions on the same issue. These considerations necessarily prevail over any competing public interest in the securing of convictions against the appellant".
The other judges who supported this view of the law, Deane and Gaudron JJ, commented at p.280:
"Strictly, the 1989 ruling on voluntariness was concerned only with those parts of the records of interview relevant to the offences for which the appellant then stood trial. However, and as already indicated, the statements which the prosecution wish to tender in the appellant's forthcoming trial are, so far as voluntariness is concerned, exactly the same as those tendered in the 1989 proceedings. In the circumstances tender of the records of interview constitutes a direct challenge to the 1989 determination which was a final determination, or became so, once verdicts were returned. The challenge is one which invites 'the scandal of conflicting decisions.' And it jeopardises public confidence in the administration of justice: in a context where the onus of proof would be the same and where there is no claim of 'fresh evidence' or fraud, a determination that the confessions were made voluntarily would undermine the incontrovertible correctness of the verdicts of acquittal returned in 1989; equally, there would be a shadow over any conviction on the charges in the present indictment if confessional statements are admitted in evidence, notwithstanding the earlier judicial determination that the circumstances in which they were made did not support a finding of voluntariness.
he course proposed by the prosecution amounts to an abuse of process".
Earlier their Honours had stated at pp.278 and 279:
"It was put on behalf of the respondent that there is nothing conclusive about a ruling as to the admissibility of evidence which, it was said, involves no final determination of any issue of fact or law. That is so. But this case is concerned with the determination of an issue of fact, namely, voluntariness, on which the admissibility of confessional material depends. It was also put that a voir dire examination does not result in a conclusive determination of voluntariness for it can be reconsidered at any time during the trial. Again, that is so, but it becomes final once a verdict is returned and it remains final unless the verdict is quashed or set aside. Moreover its character as a final determination does not depend on whether there is a right of appeal: leaving aside the limited circumstances in which a court can vacate its own judgment, a judicial decision is final and binding unless quashed or set aside on appeal; it is necessarily final if there is no right of appeal".
In the light of these passages it was submitted by the Crown that where, as in the instant case, the verdict of guilty of murder had been set aside on appeal, there could not be said to be any final determination of the issue of voluntariness. So much was also made clear, it was asserted, in the Victorian Court of Appeal case of
R. v Edwards 1997 94 A.Crim.R at 204. In that decision the judgments of the majority in Rogers case were considered.
On the question of the final determination of an issue of fact and law Hayne, JA stated at p.205:
".... Rogers concerns a ruling given in a trial which is not affected by subsequent appeal. That is, the ruling which it was sought to challenge had been given in a trial the verdict of which was now incontrovertible, there having been no appeal from it. The ruling which it was said the judge in the second trial in this case should have followed was given in a trial the verdict of which was quashed."
His Honour continued:
"Two members of the majority in Rogers, Deane and Gaudron JJ, expressly accepted that 'here is nothing conclusive about a ruling as to the admissibility of evidence which .. involves no final determination of any issue of fact or law,' and contrasted that with the determination of an issue of fact which 'becomes final once a verdict is returned and remains final unless the verdict is quashed or set aside.' Thus in Rogers, unlike the present case, the tendering of the statements at the accused's second trial (for offences unrelated to those the subject of the first trial) was held to run contrary to the principles ensuring the incontrovertible character of judicial decisions and the finality of litigation. Here, the verdicts at first trial having been set aside and the convictions quashed,.there is no judicial decision that could be regarded as incontrovertible and the principles that I have mentioned have no application."
Justice of Appeal Batt remarked, (again at p.205):
"In my view the ratio of the two majority judgments in Rogers is that relitigation in subsequent criminal proceedings of an issue of fact or law finally or conclusively decided in earlier criminal proceedings is an abuse of process and therefore impermissible. That is, the ratio is confined to 'final' or 'conclusive' decisions of issues. The statement .... that 'the determination becomes final once a verdict is returned and it remains final unless the verdict is quashed or set aside' is directly applicable, and its corollary is that when, as happened here, [that is in Edwards' case], the verdict ....was quashed by the Court of Appeal, the decision of the trial judge ceased to be final or conclusive. Indeed, in my view the whole trial slate was wiped clean."
The same conclusion was effectively reached by Acting Justice of Appeal Eames who wrote the leading judgment in which Justices Hayne and Batt agreed.
It may be thought that the policy considerations underlying the invocation of abuse of process in these circumstances, namely fairness to the accused, desirability of judicial determinations being seen to be final and conclusive, an avoidance of the scandal of conflicting decisions, would be equally applicable where a conviction has been quashed and a retrial ordered. In such circumstances a finding of fact or law in favour of the accused will not have been the subject of any challenge. However, the thrust of the current appellate decisions which are binding on me would appear to shut out such an approach.
Accordingly, it would seem there is no impediment to the reconsideration of the ruling of the trial judge judgement excluding Miss Sarah Kim's evidence which is now sought by the Crown
The challenged ruling was made on 2 September 1997 in response to a defence application which the trial judge quite understandably described as "appallingly late". It was then seven days into the evidence of the trial, and over three weeks after an earlier ruling, (the August ruling), in which His Honour had excluded as not being voluntary statements made to investigating police in the course of two video-taped interviews, and an earlier conversation had by the accused with police on 25 March 1996 on the occasion that they executed a search warrant at his Elsternwick home.
The relevant portions of the September ruling are as follows:
"The primary submission of the defence was that the statement made in the presence of Miss Kim had not been demonstrated to have been a voluntary one. Mr Allen submitted that where a statement was obtained involuntarily by virtue of threats, inducements or persistent importunity, the subsequent repetition of that statement to another person would also be regarded as being involuntary unless the Crown could demonstrate that the effect of the threat, promise or inducement which caused the first statement to be involuntary had dissipated by the time of the making of the second statement."
His Honour then referred to a number of cases that were cited in argument before me and which reflect this aspect of the time honoured principles applicable to confessional evidence. It is not necessary to quote them. He continued:
"As my reasons for decision dated 8 August 1997 made clear, the conduct of the police at the time when the search warrant was executed rendered statements which were made by the accused to police at his home, on that occasion, involuntary. I also held that the effect of threats and other conduct did not dissipate after the search had concluded, nor after the accused Kim had been arrested at his home. I held that the effect of the threats and other conduct at the house still operated hours later when he was interviewed, on video tape, at the Homicide Squad. I ruled the first video interview involuntary as was the latter one. Indeed, I held that the accused would not have made any statement to police at his home had it not been for the conduct of police which induced him to do so, and the police having caused his will to be overcome so that he made a statement to them at his house, his free will remained effectively overborne thereafter.
Mr Elston argued that the fact that the evidence of Miss Kim related to a statement made in Korean by the accused to his wife, rather than a statement made in English to a person in authority, and that what he said was said in his own words and without any questioning by his wife or the police, demonstrated that this statement was a voluntary one, even if it was the case, (as I found), that the statement made only a very short time earlier to police at his home (which was to the same effect of the shorter statement made to his wife) was not voluntary.
Notwithstanding the able arguments of Mr Elston, I cannot conclude that in the short period of time after the statement to police at his home there was a 'moment of voluntariness' during which brief moment the effect of the previous importuning behaviour ceased to have effect. I cannot conclude that for this one statement, (unlike all those made to police, from the time they attended his home until he was finally taken before a magistrate) the effect of police conduct on his free choice remained silent or to speak did not operate."
The trial judge's finding as to the conduct of the investigating police at the accused's house are set out at pages 797 to 799 of his August ruling. It is not necessary to chronicle in any detail "the threats and other conduct at the house" which the trial judge there described and later referred to in his September ruling.
It is sufficient, I think, to note his conclusion in the August ruling, found at p.799:
" I observe that I am not satisfied that by virtue of the combination of factors which I have identified leading up to the moment when those admissions were made in the bedroom, the answers given to police at the house or outside the house were given in free exercise of a choice to speak or remain silent."
It could not be said that such a conclusion was not open to His Honour. Indeed, the Crown did not seek to contest either the findings of fact or the conclusion reached by the trial judge. It was submitted, however, that it was not open to the trial judge to conclude that the accused's subsequent comments to his wife were involuntary.
In developing this argument it was put by the Crown that the rejection in the September ruling of "a moment of voluntariness", (being His Honour's terminology), disclosed, in effect, an erroneous approach in which the judge's conclusions were coloured by his subsequent findings about events which had not yet occurred at the time of the incident at the house. However, in my view, a reading of that phrase, in the full context of the ruling, does not bear out this contention.
The factors which were placed before the judge, by the Crown, and considered by the judge, were enunciated in the previous paragraph of the ruling. In rejecting them the judge may be seen as reiterating his view as to the ongoing effect of the police conduct, not only at the time of the impugned conversation, but, (as he had found as a fact), at all relevant subsequent times.
In re-canvassing the factual matrix in which the September ruling was made it was submitted on behalf of the Crown that a clear distinction was to be drawn between what the accused told the police outside his house and what he chose to tell his wife. It was submitted that any activities of the police which may have occasioned his involuntary admissions to them played no role in the latter conversation.
In short it was argued that, despite the proximity of the two conversations, there was no causal link between them.
It was put that the accused's statement to his wife was not the result of any questioning by her or by the police in her presence, nor was it the result of any directive by the police to the accused to provide his wife with an account of what he had told them. Although the statement may have been made in the presence of police the accused clearly felt able to speak in Korean and the police made no effort to have him speak in English or to determine what he had said to his wife. Accordingly it was submitted that the statement was volunteered by the accused to his wife and could not, in all the circumstances, be regarded as involuntary.
On behalf of the defence it was put that the statement had to be placed in the context of the accused being in custody, and of having been directed by the police to tell his wife what was happening. The conversation was had in the police presence and hence what he said was in the public domain. Whilst the accused spoke in Korean he did so without any knowledge of the capacity of the police to understand the Korean language.
Most importantly it was argued that the statements to his wife were made by the accused shortly after the tainted conversation with the police outside the house and at a time when it might be expected that his will was still overborne.
One of the problems faced by the trial judge, and indeed by this court, in attempting to resolve this issue, is the dearth of evidence upon this specific matter. This has been occasioned by the fact that it was not the subject of any examination during the relevant voir dire, it then not having arisen as an issue. Moreover, in determining this application I am conscious that unlike the trial judge, I have not had the benefit of seeing and hearing from the various witnesses, (and in particular the accused), but have been limited to transcript references.
In the circumstances I have outlined the accused's account of what occurred is minimal. It appears at p.536 of the transcript. He was asked (in passing) this question by counsel: "Just by the way, where were you between the conversation in the street, once that had finished, and when you were later placed in the police car and driven away? Where had you been in the meantime?" Answer: "I walked back inside and talked to my wife and Mr Kenafacke advised me to give some money to my wife actually and to take my jewellery off." "Did you do that?" Answer: "Yes".
The accused's evidence does not suggest any direction by the police that the accused talk to his wife. However, according to the statement of Miss Sarah Kim and her evidence in the Basha inquiry, the police told the accused to tell his wife what was happening, or that "You should tell your wife what is going on". This, of course, must be seen as being said in the context of the accused's arrest, and imminent transportation to the Homicide Squad Office, and of his giving money and his wedding ring to his wife.
That evidence certainly falls short of demonstrating any directive by the police the accused should reveal to his wife what he had, in fact, told them, but that is not an end to the matter.
I should interpolate that, in considering this matter, the fact that this conversation was held in the Korean language is quite equivocal, since it was Mrs Kim's first language, and Miss Sarah Kim described Mrs Kim's English as "pretty limited". On the other hand I do not regard the defence submission that the accused was unaware as to whether the police spoke Korean as realistic.
Like the trial judge, I think there is some cogency in the arguments advanced on behalf of the Crown by Mr Elston. On a purely intellectual analysis the two transactions may be seen to have a different character. Such analysis, however, does not necessarily convey the psychological reality of the situation. The accused, having had his will overborne so that he made involuntary admissions to the police outside the house, (as His Honour found), necessarily had to provide his pregnant wife, (the focus of his concern, in His Honour's view), with an explanation as to why he was to be taken away by the police. In those circumstances a repetition of the gist of the admissions to the police may arguably be inextricably linked to the involuntariness found to have accompanied the admissions outside the house. Or, to put it another way, the overbearing of the accused's will had not dissipated in the circumstances here revealed, including the minimal lapse of time and operated to produce the admissions overheard by Ms Susan Kim.
Even if the propositions advanced may be regarded as debatable the legal situation is that the onus lies on the Crown to prove voluntariness, and to do so on the balance of probabilities.
In my view the Crown has failed to do so on the material available to be presented to the Court in this case. That conclusion having been reached, it is unnecessary for me to consider the submissions on behalf of the defence as to the exclusion of this evidence upon any discretionary basis.
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