R v Kim - [1999] VSC 56

SUPREME COURT OF VICTORIA

CRIMINAL JURISDICTION Do not Send for Reporting

Not Restricted

No. 1422 of 1997

THE QUEEN

KYU HYUK KIM

---

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

---

Application by Crown to admit into evidence a particular witness' statement - Question of voluntariness - Application refused - Evidence excluded on judge's discretionary basis.

---

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…

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 [1999] VSC 56
Case: [1999] VSC 56
Decision Date: 3 February 1999

CaseChat Overview and Summary

The case of R v Kim involved a criminal proceeding before the court, with the Crown seeking to introduce a statement from a particular witness into evidence. The primary issue was the voluntariness of the statement, which was contested by the defence. The court had to determine whether the statement was obtained in a manner that ensured its reliability and admissibility.

The central legal issue before the court was the assessment of the voluntariness of the witness's statement. This involved examining whether the statement was made freely and without undue influence or coercion. The court considered the circumstances under which the statement was obtained, including any potential threats, promises, or pressure applied to the witness. Additionally, the court examined the witness's background, mental state, and any other relevant factors that might impact the voluntariness of the statement.

The court meticulously evaluated the evidence presented regarding the circumstances of the statement's procurement. It was found that the statement was not entirely voluntary due to certain coercive elements present during its acquisition. Given this determination, the judge exercised discretion under the relevant legal provisions and ruled that the statement should be excluded from evidence. The court's decision was based on the belief that admitting the statement would not serve the interests of justice, considering its compromised voluntariness.

The final orders of the court were that the contested statement from the witness would not be admitted into evidence. This ruling ensured that the trial would proceed without the potentially compromised statement, maintaining the integrity of the judicial process and the rights of the defendant.

Orders