R v Kyu Hyuk Kim
[1999] VSC 57
•17 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: | 17 February 1999 |
| DATE OF RULING: | 17 February 1999 |
| CASE MAY BE CITED AS: | |
| MEDIA NEUTRAL CITATION: | [1999] VSC 57 |
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Section 42E(3) Evdence Act - Application by defence counsel to have earlier ruling to allow evidence to be placed before jury by video-link revoked - Application refused.
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| APPEARANCES: | Counsel |
| For the Crown | Mr. R. A. Elston |
| For the Accused | Mr. P. Morrissey |
HIS HONOUR:
An application is made by Mr Morrissey on behalf of the accused that pursuant to s.42E(3) of the Evidence Act 1958 (the Act) I should revoke the original order I made that the evidence of the witness Kang could be taken by way of video link.
The effect of such a revocation should, in his submission, result in the jury being directed not to act on the evidence of the witness Kang which has now been given via the video link.
It was conceded by Mr Morrissey that there was no technical failure of the video link, that the visual image was adequate and that the sound quality did not occasion any difficulties. In other words, it is not suggested that the technical provisions of s.47G of the Act have not been met.
It was however submitted by Mr Morrissey (correctly in my view) that the discretion the court possesses goes beyond mere technical failure and to other considerations encompassed in the provision of a fair trial for the accused.
In responding to that submission Mr Elston referred to Mr Morrissey's concession that there was no complaint as to the fundamental question of the efficacy of the link. He noted in passing that there had been no complaint from the jury about the operation of that link. It was further submitted that no unfairness in the process had been demonstrated.
Turning then to Mr Morrissey's submission that the link should be revoked for other reasons, those advanced by him were firstly that the witness Kang did not answer some of the questions put to him, secondly that he suppressed (or perhaps more accurately did not give) evidence on a previous occasion about the provision and use of a key by the accused and thirdly what Mr Morrissey characterised as Mr Kang's lack of respect for the proceedings.
As to the last of those submissions, the question of respect for the proceedings is largely one of perception. I am not at all convinced that the witness demonstrated any lack of respect for the proceedings at all. I put that to one side.
The other matters adverted to by Mr Morrissey are essentially forensic matters that can be raised by him in his final address to the jury. Moreover they are matters about which the jury can be directed in the course of the charge. I certainly intend to tell the jury that, in considering the evidence of Mr Kang, they must bear in mind that there was some selective answering of questions by him, that he could not be compelled to answer questions and further, that there was no realistic possibility of the oath he took being enforced if in fact he committed perjury.
I would also propose to direct the jury in the terms required under s.42V of the Act as to the way in which they should regard video link evidence.
Ultimately the question is one of whether the interests of justice require the revocation of the video link and that squarely raises the issue of whether the use of the video link has precluded a fair trial for the accused in this matter.
I am quite unconvinced that that is so and the matters raised by Mr Morrissey can, in my view, be adequately addressed, both in the charge and indeed by way of his own final address to the jury.
Accordingly this application is refused.
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