R v Park

[2003] NSWCCA 203

CITATION:	R v Sung Eun PARK [2003] NSWCCA 203 revised - 24/07/2003
HEARING DATE(S):	25/06/03
JUDGMENT DATE:	23 July 2003
JUDGMENT OF:	Ipp JA at 1; Buddin J at 2; Shaw J at 3
DECISION:	Appeal dismissed.
CATCHWORDS:	Criminal law - conviction appeal - whether reasonable hypothesis inconsistent with guilt - directions on propensity - directions on silence - fresh evidence
CASES CITED:	Azzopardi v The Queen (2001) 205 CLR 50; Barca v The Queen (1975) 133 CLR 82; BRS v The Queen (1997) 191 CLR 275; Domican v The Queen (1992) 173 CLR 555; Gilbert v The Queen (2000) 201 CLR 414; Palmer v The Queen [1971] AC 814; Pemble v The Queen (1971) 124 CLR 107; R v Clarke (1995) 78 A Crim R 226; R v Dinnick (1909) 3 Cr App R 77; R v Dudko [2002] NSWCCA 336; R v Elfar [2000] NSWCCA 225; R v Tillman [1962] Crim LR 261; RPS v The Queen (2000) 199 CLR 620; Van dan Hoek v The Queen (1986) 161 CLR 158;
PARTIES :	Regina (NSW) Sun Eun Park - Appellant
FILE NUMBER(S):	CCA 60581/00
COUNSEL:	D Frearson - Crown P Byrne, SC with G Bashir - Appellant
SOLICITORS:	S O'Connor - Crown G Goold Solicitors - Appellant

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	70085/98
LOWER COURT JUDICIAL OFFICER :	Sperling J

60581 of 2000

Ipp JA
Buddin J
Shaw J

23 July 2003

Regina v Sung Eun PARK

Judgment

1 Ipp JA: I agree with Shaw J.

2 Buddin J: I agree with Shaw J.

3 Shaw J: On 27 August 1997 the skeletal remains of three bodies were found inside suitcases in the Watagan State Forest in Quorrobolong. The bodies were later identified as Quan Qin (Susan) Park and her two children, Andrew Eun Park and Amy Sarah Park.

4 The decomposed remains had plastic shopping bags knotted around the head of each deceased. The remains were also bound with rope. It was the opinion of the examining pathologist that each of the deceased had been suffocated.

5 On 31 January 2000 the appellant pleaded not guilty to an indictment charging him with the murder of his wife and two children on or about 17 October 1996 at the flat of Susan Park in Eastwood, New South Wales.

6 The jury returned verdicts of guilty to all charges on 7 March 2000.

The Crown case

7 The Crown case was a circumstantial one. It alleged the following circumstances to prove the guilt of the appellant:

(a) the relationship between the appellant and Susan Park and the children had broken down;

(b) there was a motive for the appellant to murder his wife and children;

(c) there was no other likely culprit;

(d) the deceased were likely to have died on the night of 17-18 October when the appellant had the opportunity to be at the Eastwood flat;

(e) the appellant knew the deceased had died at 18 October;

(f) the appellant’s jacket turned up inside one of the suitcases containing the bodies;
(g) the appellant had a key to the Eastwood flat after the time of the deaths;

(h) lies and conduct indicated a consciousness of guilt.

Facts on the Crown case

8 The facts of the case are helpfully summarised in the Crown submissions.

9 Susan Park met the appellant in early 1990 and they began living together in Brisbane before moving to Sydney and marrying in late 1992. Andrew Park was born to them on 13 March 1993 followed by Amy Park on 27 April 1994.

10 On 12 June 1995 So Young (Demi) Hwang arrived in Australia and met the appellant at a hostess bar in Bondi where she was working. The appellant and Ms Hwang began a relationship, though it seems Ms Hwang was unaware that the appellant was married.

11 The appellant had ceased to live with his wife from late 1995. In early 1996 the appellant and Ms Hwang began to discuss marriage.

12 On 12 September 1996 the deceased, Susan Park, invested $200 in separate term deposits for each of the children.

13 On 15 September 1996 Susan Park was admitted to Ryde Hospital after she was found unconscious, having consumed a large quantity of ginseng wine. Michelle Everett, a psychologist, gave evidence at the trial that she spoke to the deceased at the hospital. Mrs Park told Ms Everett that she had just previously found out that her husband was in a relationship with another woman. She said that she had not attempted to take her own life as she had her children to live for.

14 Ms Everett visited the deceased at her flat in Eastwood on 23 September 1996 and Mrs Park said to her:

Look, he is somebody else’s problem now and I can get on with things.

15 The deceased asked Ms Everett how to get maintenance for the children.

16 On 27 September 1996 edition 444 of the Weekly Korean Life Review was published. In that edition the appellant had placed an advertisement for some Korean furniture.

17 A Mr In Kook Kim arranged to see the furniture and arrived at the flat in Eastwood to meet the appellant outside. The appellant knocked on the door and called to be admitted. Mr Kim saw an adult peeking through some blinds. Mr Kim gave evidence that the appellant said that he lived in Ashfield, was divorced from his wife and that:

…she was supposed to open the door but she does not open the door.

18 Two neighbours of the deceased, Mrs Doreen Gorton and Mrs Eileen Leadbeater, both heard the appellant kick at the door of the Eastwood flat and scream to be let in. Ms Gorton called the police who suggested that the deceased contact the Ryde Local Court. The deceased told Constable David O’Hagan, who attended in response to the call by Mrs Gorton, that she had no fears for her safety. However, Mrs Gorton drove the appellant to Ryde Local Court the next day.

19 On 12 October 1996 the deceased took her children to a flat in Ashfield that was being tenanted by the appellant and Ms Hwang. The deceased and Ms Hwang fought. The police made a report of the incident and Ms Hwang gave evidence that the appellant was very angry at the police station.

20 On 14 October the deceased paid a term fee of $50 to the local Baptist Church at Eastwood for the children to attend a playgroup. The term would last until 13 December 1996. The deceased and her children had regularly attended at the playgroup but were not seen there after Wednesday 16 October 1996.

21 Mrs Gorton last saw the deceased at the clothesline of the Eastwood flat on the afternoon of 17 October 1996. Mrs Leadbeater said that on Friday 18 October the deceased’s flat was very quiet as she could not hear the children and the curtains, blinds and windows were all closed. Both Mrs Gorton and Mrs Leadbeater expected to see the deceased that weekend but did not.

22 The sister of the appellant, Mina Park, gave evidence that she called the phone number of the deceased several times over 17 – 18 October but received no answer.

23 Ms Hwang gave evidence that the appellant rang her at the Ashfield flat at around nine or ten in the evening of 17 October and told her that he was with the deceased and the children. He was speaking with the deceased about a letter from the Child Support Agency regarding maintenance from the children. Ms Hwang said that when the appellant had received the letter he became very angry and hit the table with his fist.

24 Between three or four in the morning of 18 October she received another phone call from the appellant who said to her:

Listen – everything has been resolved now. Now – it will be alright if we go to Korea now.

25 The appellant returned to the Ashfield flat at seven or eight in the morning and said to Ms Hwang that he needed sleep. He also said:

We need to hire a car fairly soon.

26 He also suggested that as the flat was now empty they should sell the contents to buy plane tickets.

27 On Friday 18 October 1996 the Commonwealth Bank at Eastwood received payment withdrawal forms for the accounts of Andrew and Amy Park. An amount of $65 was withdrawn from the savings accounts of the two children. The $400 from the two term deposits was later withdrawn on 21 October 1996. The appellant’s palmprint was lifted from the Term Deposit Prepayment Form in the name of Andrew Park dated 18 October 1996 and on the withdrawal slip for the account of Amy Park.

28 On 19 October 1996 the appellant rented a Mitsubishi Magna sedan from Daytona Car Rentals at Granville. The rental was extended twice, each time for a period of 24 hours.

29 That night the appellant said to Ms Hwang that they should ‘die together’. She became afraid and he looked at the stars and said:

My children are there.

30 On 21 October Ms Hwang and the appellant went to the Eastwood flat sometime after midnight. Ms Hwang gave evidence that the appellant went into the flat while she remained in the rented car. She saw the appellant drag some heavy objects to the boot of the car. They then drove north of Sydney into the bush. They stopped in a mountain area on an unpaved road. The appellant got out of the car, looked around, and then returned. They both then returned to Sydney at around 6 am. That night they again went out at about 9 – 10 pm and travelled along a long, small track. Ms Hwang said the appellant got two things from the boot and dragged them into the bush.

31 On 23 October the appellant pledged a television and stereo for $550.

32 Ms Hwang admitted at trial that she forged the name of Susan Park to withdraw $300 from the deceased’s account on 24 October 1996 at the request of the appellant. She gave evidence that he said he would withdraw money from the accounts of his children.

33 On 25 October the appellant told Mrs Leadbeater that the deceased had moved with the children to Brisbane. The appellant told her that he did not know the address where they were staying. Mrs Leadbeater said that he later told Mina Park that the deceased had taken her television with her on the plane.

34 Ms Park then called Eastwood Police and, after receiving the keys to the apartment from the estate agent, gained entry to the Eastwood flat. Inside she saw that the unit was messy, the beds unmade and cupboard doors open. Three or four bags of clothes were on the floor with scattered toys. When she asked the appellant where the deceased was he replied that she was in Brisbane and that he was sending the television and stereo to her there. Ms Park reported the deceased missing to the police.

35 On 26 October 1996 the appellant contacted Mr Ray Brady to sell furniture to him as he was leaving the country and ‘wanted to sell everything’. Mr Brady noticed that the Eastwood flat had been packed away and that:

All he had to do was dispose of the furniture.

36 On 28 October 1996 Detectives Luke Spurr and Richard Harden attended at the Eastwood flat. The appellant told them that he lived at the flat but that he was moving to Brisbane to restore his relationship with his wife. Detective Spurr asked the appellant how long he would be at the flat and the appellant said that he would remain all day.

37 Ms Hwang gave evidence that the appellant told her that the police had been to see him. He suggested that they leave for Korea. Ms Hwang said she bought two one-way tickets to Korea that afternoon but that they could not go as the appellant needed to buy a return ticket to get a visa.

38 Ms Hwang said that on the following day, 29 October 1996, she returned to the travel agent to purchase new tickets for departure to Korea. As the appellant and Ms Hwang boarded the flight for Korea they were spoken to by Federal Officer Michelle Museth. Officer Museth gave evidence that the appellant told her that his wife was in Brisbane and that he was going to Korea to see a sick friend and would return in ten days.

39 The appellant did not give evidence at trial. However, the defence case was that someone other than the appellant, either an unknown assassin or Demi Hwang, arranged the murders of the deceased.

The sentence

40 On 3 August 2000 Sperling J sentenced the appellant to a term of imprisonment for 26 years commencing 3 March 1998 with a non parole period of 19 years and 6 months expiring on 2 September 2017 for the murder of Susan Park. For the murder of Andrew and Amy Park the appellant received a fixed term for each charge of 15 years imprisonment.

41 On 20 December 2002 this Court heard argument pursuant to a Crown appeal against the alleged inadequacy of the sentences imposed. That matter is still reserved. The appellant now appeals against his conviction.

42 The appellant challenges the verdicts on a number of bases on appeal.

First ground of appeal: reasonable hypothesis inconsistent with guilt

43 The first matter argued is that the trial judge erred in failing to give directions to the jury outlining a reasonable hypothesis, based upon the evidence, and being inconsistent with the guilt of the appellant.

44 On 3 March 2000, during the course of his Honour’s summing up but in the absence of the jury, the trial judge raised a possible matter that could be put to the jury as a reasonable possibility inconsistent with the guilt of the accused for their consideration.

45 His Honour said that it had occurred to him that the jury could, and perhaps should, be invited to give consideration to another possible way in which events occurred. His Honour asked the legal representatives whether he should direct the jury of the possibility that on 17 October the appellant found his wife and children dead and knew that they may have been killed:

perhaps by loan shark enforcers, perhaps by Demi Hwang, or some associate of hers; perhaps by a psychotic who gained entry by some subterfuge; that he thought he would be suspected of killing them, and panicked; that he did not take Demi Hwang into his confidence, telephoned her, said something barely coherent about it all being over; came home in the morning of the following day looking haggard, and having worked out a stupid plan to avoid police detection, that was, to tell a story about Susan Park and the children having gone to Queensland, looking unconcerned about their disappearance, leaving Australia as soon as possible, and somehow finding the money for that.

46 The immediate response of defence counsel in dealing with the question of whether such a hypothesis should be put to the jury, was that there was no obligation upon the trial judge to put a scenario which was not either put by the defence or attacked by the Crown, but the defence conceded that the trial judge could properly put a view of the facts which was consistent with a finding of not guilty. As counsel for the defence said:

So you can do it but you need not do it.

47 On the following Monday, 6 March 2000, the Crown Prosecutor put it to the trial judge that he would be falling into error if he were to:

..give to the jury the scenario that your Honour outlined with counsel in their absence.

48 On the other hand, counsel for the defence (after time for consideration) took the view that if there were a view of the facts:

…which has the accused involved only with the disposal of the bodies after the killings, consistent with innocence however, then that is a matter we urge that should be left to the jury.

49 Defence counsel submitted that the jury should be left with the suggestion that an inference reasonably open to them would be that some person or persons, unspecified, may have been responsible for the deaths. That was the defence case, although the appellant did not give evidence at the trial.

50 The result of this discussion between the trial judge and counsel was that the alternative version as constituting a reasonably possible hypothesis for the jury to consider was not put to them.

51 On 6 March 2000, the trial judge determined that he should not suggest to the jury that there may be an alternative way of looking at the facts of this case along the lines that he had foreshadowed earlier. He formed the view that he was not required by Pemblev The Queen (1971) 124 CLR 107 to do so. On the contrary, his Honour formed the view that:

There is a serious risk that in taking the course I proposed for discussion, there could be unfair implications either for the Crown or for the accused, and perhaps both in different ways.

52 Whilst it is understandable that this hypothesis was not put by the defence as a reasonable alternative because the appellant denied all involvement in the disposition of the bodies of the deceased, the question arises as to whether the trial judge should have put the alternative explanation to the jury.

53 Case law indicates that there is an independent obligation upon a trial judge to put to the jury all reasonable hypotheses, available on the evidence, and inconsistent with the guilt of an accused. Barwick CJ said in Pemble v The Queen (1971) 124 CLR 107 at 117-8:

Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interests of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to law and the possible use of the relevant facts upon any matter on which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.

54 In BRS v The Queen (1997) 191 CLR 275 at 330 Kirby J, in referring to the importance of matters raised by the parties, qualified this general concept by saying that:

…in certain fundamental matters the judge carries an unavoidable obligation to provide directions which are necessary to prevent a perceptible risk of a miscarriage of justice.

55 However, there may be some qualification required of these general statements lest it be thought that the authority of Pemble can be adequately stated at this high level of abstraction.

56 First it is important to recognise that the hypothesis must be both reasonable and available on the evidence.

57 The appellant accepts that it is a necessary requirement before a trial judge can put an alternative hypothesis to the jury, not propounded by the defence, that there be some evidentiary basis for it. In scientific methodology, a hypothesis can be constituted by a proposition merely put forward as a basis for argument, without any assumption to its truth. It can be, in effect, a guess. However, in the jurisprudence of the criminal law discussion of a hypothesis is qualified adjectivally by the notion that it must be ‘reasonable’. Accordingly, a trial judge needs to ensure that there is some rational basis in the substratum of evidence, however slight, before suggesting a possibility, contrary to the prosecution case, to the jury.

58 The jury were instructed several times that a reasonable hypothesis inconsistent with the guilt of the appellant required them to acquit the appellant.

59 In this case, it is not as though counsel for the defence expressly disavowed the possibility raised by the trial judge. Rather, it was not in his strategic interest to articulate it before the jury. It was the appellant’s case at trial that he was not involved in the murder of his wife and children.

60 Further, the defence clearly put to the jury the possibility of the murderer being Demi Hwang and the jury, by necessary inference, rejected that alternative hypothesis. Also, the Crown adduced evidence that the police knew of no reprisals against the appellant aimed at his wife and children, or of that method of reprisal. The jury must have accepted that evidence.

61 It is conceded by the appellant that it would be wrong for a trial judge to put a hypothesis which was fanciful or unrealistic: R v Clarke (1995) 78 A Crim R 226 at 230-231 per Hunt CJ at CL. Where the hypothesis has some rational basis then it should be raised by the court, despite the fact that it has not been propounded by the defence: Barca v The Queen (1975) 133 CLR 82 at 104. As Lord Morris of Borth-y-Gest said in Palmer v The Queen [1971] AC 814 at 823:

It is always the duty of the judge to leave to the jury any issue (whether pressed by the defence or not) which on the evidence in the case is an issue fit to be left to them.

See also R v Dinnick (1909) 3 Cr App R 77 at 79; R v Tillman [1962] Crim LR 261 at 262 and Van Den Hoek v The Queen (1986) 161 CLR 158.

62 However, the authority of Pemble does not necessarily support the appellant’s contentions. In RPS v The Queen (2000) 199 CLR 620, Gaudron ACJ, Gummow, Kirby and Hayne JJ said (at 637):

It is for the jury, and the jury alone, to decide the facts. As we have said, in some cases a judge must give the jury warning about how they go about that task. And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues…But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge’s other functions require it.

63 I am not persuaded that the authority of Pemble requires a trial judge to put all conceivable constructions of the facts to the jury. In Gilbert v The Queen (2000) 201 CLR 414 McHugh J said (at 423-424; citations omitted):

Where a trial judge correctly directs the jury as to the essential elements of the crime charged, a verdict of guilty necessarily amounts to a finding of every essential element of the crime, and the verdict cannot be set aside on the ground that the trial judge should have directed the jury that on the evidence they could convict the accused of a lesser offence. That proposition is subject to the qualification that, where the evidence, in substance but not necessarily in form, gave rise to a “defence” by way of confession and avoidance which the trial judge failed to put to the jury, the verdict can be set aside…Where the issue that should have been left to the jury is not in substance a matter of confession and avoidance and the factual elements of that issue are negatived by the verdict, however, the general principle applies.

64 His Honour did not refer to Pemble as authority for the ‘qualification’ of what his Honour termed a ‘general principle’, however Pemble is clearly authority for that proposition. Accordingly, in accordance with the reasoning of McHugh J in Gilbert, Pemble can be seen as a qualification to a general principle that only applies when a trial judge omits to put to a jury ‘additional matters which qualify the legal effect of the findings inherent in the verdict of guilty of murder’ such as provocation, self-defence and lawful excuse (Gilbert at 424 per McHugh J).

65 This is not to say that a trial judge may avoid putting to the jury all reasonable hypotheses available on the evidence and inconsistent with the guilt of the accused. It seems that this is a matter for the trial judge in the context of the trial. In Regina v Dudko [2002] NSWCCA 336 Spigelman CJ said (at [30]):

The Appellant referred to cases such as Pemble for the proposition that there are circumstances in which a trial judge must direct a jury with respect to matters, even though Counsel for the accused does not raise the issue and even if counsel refused to do so for good reason. Nevertheless, the directions a trial judge should give must depend on the issues at trial.

66 Similarly, in Domican v The Queen (1992) 173 CLR 555 it was said by Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ (at 561):

Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence.

67 However, it is to be noted that in Regina v Karim John Elfar [2000] NSWCCA 225 Mason P referred to McHugh J in Gilbert and said (at [5]):

I have no difficulty in accepting that Pemble extends beyond the field of murder/manslaughter.

68 Nevertheless, as a matter of law I am not satisfied that his Honour erred in finding that he was not bound to give a direction to the jury on the alternative hypothesis.

69 However, it remains to be determined whether the trial judge should have given such a direction.

70 It was the Crown case, on the evidence, that the accused was responsible for the deaths of his wife and children. A circumstance that the jury was entitled to consider, on the evidence, as a consciousness of his guilt, was his involvement in the disposal of the bodies. The issue that could have been put to the jury is that the appellant may have disposed of the bodies without that necessarily proving his involvement in the killing of his wife and children.

71 Clearly, this was a situation open to the jury to consider. However, it was also an issue foreclosed by the positions of the parties, and ultimately, by the verdict.

72 The question is whether the hypothesis initially suggested by the trial judge was fanciful or unrealistic, and whether there was a sufficient evidentiary basis to render the hypothesis ‘reasonable’ in the circumstances of the case.

73 There was evidence presented at trial that the appellant had been addicted to gambling and was under pressure to loan sharks. There was also evidence of the motive which Demi Hwang might have had to commit the crimes. That is, there was evidence to suggest that she desired to marry the appellant and harboured animosity towards Susan Park.

74 The appellant says that the prosecution took the matter sufficiently seriously to call Detective Szabo and to attest that there was no intelligence available to the police that there might have been reprisals against the wife of someone who owed money to these loan sharks.

75 In my opinion, the evidence relied upon by the appellant is extremely weak in terms of providing any adequate basis for this hypothesis to be put to the jury, let alone one involving an unknown psychotic.

76 Reference by each of the legal representatives was made to the possibility of death by loan shark enforcers, with the Crown submitting that the possibility was remote on the basis that the police had proffered evidence that retribution of that kind was not known to have occurred in the past as or as a matter of regular practice.

77 It was also expressly put to the jury by each of the legal representatives that there was a possibility that Demi Hwang, alone or with others, brought about these deaths, with the Crown submitting that it was a fanciful possibility and Demi Hwang having given evidence and expressly denied complicity in the crime.

78 On the other hand, the defence explicitly put to the jury that it was ‘not unlikely’ that Demi Hwang, with or without assistance, might be the true culprit. The defence put to the jury that she had motive and opportunity. Senior Counsel for the appellant at trial pointed out with precision to the jury that Demi Hwang had strong negative feelings about Susan Park, that Susan Park constituted a barrier to her marrying the appellant and that, it was argued, there was evidence that Susan Park had assaulted and insulted Demi Hwang in the past.

79 By necessary implication, having regard to the verdict, the jury rejected the proposition that loan shark enforcers or Demi Hwang were responsible for the deaths of Susan Park and her children, and took the view that there was proof beyond reasonable doubt that it was the appellant that committed the crimes in question. So that whilst the precise hypothesis debated at trial was not put to the jury it seems to be nonetheless relevant that the jury rejected all alternative theories of who the culprit might otherwise have been.

80 In my view, the Court needs to deal with this argument in the context that whilst the precise hypothesis discussed between the trial judge and counsel was not put to the jury, nevertheless the possibility that other people might have been guilty of the murders of the deceased was fairly before the jury and identified in the trial judge’s summing up.

81 Another part of the background to the resolution of this case is to point out that experienced Senior Counsel for the defendant did put strongly to the jury that somebody else, that is someone other than the appellant, might have committed these murders but that the defence was unable to say who did it. These submissions were accurately summarised by the trial judge in his summing up. For example, the trial judge emphasised the defence submission that weight should be given to ‘the suggestion that it would be reasonably possible that persons associated with Demi Hwang were responsible for the dumping of the bodies and therefore for the death of the accused’.

82 In a comprehensive summing up the trial judge made it clear that the only serious issue in the trial was whether it was the accused who killed Susan Park and the children. His Honour said:

It will then follow that you will only find the accused guilty if the Crown has established beyond reasonable doubt that it was the accused who killed Susan Park and the children. On the other hand if the Crown has failed to establish beyond reasonable doubt that it was the accused who killed them you would find the accused not guilty. Putting that another way, if there is a reasonable possibility that it was not the accused who killed Susan Park and the children you would find the accused not guilty.

83 Thus, alternative possibilities were expressly left to the jury both by the argument of defence counsel and the learned judge. Having regard to the authorities, the course of the trial and the circumstances of this case, I take the view that this ground of appeal is not made out.

Second ground: errors in directions relating to propensity

84 The second ground of appeal is that the trial judge erred in his directions to the jury of the use that the jury might make of evidence -and more particularly the manner in which the jury were not permitted to use such evidence- that had been admitted which showed a tendency to violence on the part of the appellant.

85 There was evidence of screaming coming from the appellant’s residence in Eastwood in October 1995. There was other evidence that in September 1996 the appellant became agitated in relation to gaining access to the flat and that neighbours called the police for help. However, many witnesses called by the Crown gave evidence that the deceased had told them the appellant was not violent towards her.

86 The trial judge summarised the defence submissions on the two incidents of violence characterising them as ‘isolated events’ which added ‘nothing to the allegation of murder’. Also, the Crown disavowed any suggestion that it contended that the appellant had a tendency towards violence. However, his Honour did direct the jury that:

…the Crown did bring out and has referred in some instances in which the accused engaged in behaviour that could be seen to have some element of violence, at least a propensity about it.

87 The directions to the jury in this respect were very balanced. The judge pointed out to the jury that:

…you might think that there is a long step from inferring from that kind of conduct that this was a man likely to kill. What I should mention in this regard is that the Crown did not make it part of its case that those incidents did indicate that this was a man likely to kill.

88 The Crown expressly indicated that this evidence was to negate the evidence of good character adduced by the appellant and would not rely on an inference to be drawn against the accused regarding a propensity towards violence. Further, the Crown did not suggest that the appellant had engaged in actual violence.

89 Defence counsel raised no objection to the way the Crown or the trial judge dealt with this material.

90 It may have been that the trial judge did at one point misstate that point of this evidence. However, this was clearly corrected when his Honour said:

…so I would not be correct to say, as I may have conveyed, that the Crown wishes to make it part of its circumstantial evidence case that this was a man prone to anger and therefore someone who may have more feasibly committed this crime. Now I mention that because if I have overstated the Crown case in that regard, you might think that I have attributed to the Crown a position which is really further than one could reasonably go in argument…

91 The defence did not complain about the direction. In all of these circumstances it is my opinion that Rule 4 is applicable and by reason both of the absence of any substantive injustice flowing from the direction and because of the absence of any objection taken at the trial to the direction, leave should not be granted to allow the challenge to this particular direction as a ground of appeal.

Third ground: error in directions on silence

92 The third ground of appeal is that directions by the trial judge on the failure of the appellant to give evidence in the trial were inadequate having regard to the circumstances of the case.

93 It is true that in the articulation of his directions to the jury the trial judge did not have the benefit of the decision of the High Court of Australia in Azzopardi v The Queen (2001) 205 CLR 50 which was published after the summing up in this case. It might reasonably be said that with the benefit of the judgment in Azzopardi a somewhat more elaborate direction about the failure of the accused to give evidence may have been given. Nonetheless, the trial judge did give a strong and clear direction in this respect conformably with the accepted practice at the time the direction was given. His Honour said:

You should therefore infer nothing adverse to the accused from his election not to give evidence. There may be many reasons for an accused person not to give evidence in the trial. Reasons that you and I do not know and might never think of. So there is no point in speculating about that. The accused is entitled to put the Crown to proof of its case, and he is entitled to have nothing made of that. So keep your mind on the job.

94 I accept that, as a result of the joint judgment of Gaudron, Gummow, Kirby and Hayne JJ in Azzopardi (at [51]), it will ‘almost always be desirable’ for some more explicit or expanded direction in relation to the failure to give evidence to be given to the jury. However, the formula that was indicated in Azzopardi was not expressed to be universally required, although, ‘desirable’. The defence did not object to the form of direction which the trial judge gave in the present case, and in all of the circumstances I do not think that leave should be granted to advance this ground of appeal.

Fourth ground of appeal: the credibility of Demi Hwang

95 The fourth ground of appeal suggests that there is fresh evidence available in respect of the witness So Young (Demi) Hwang which calls into question her credibility and therefore casts doubt upon the verdict.

96 This fresh evidence is dealt with in affidavits of Gregory Goold, the solicitor for the appellant, and also David William Hudson, a Superintendent of Police at the Granville Police Station.

97 Counsel for the appellant conceded that this evidence would only be relevant if the first ground has been made out. Since, in my opinion, it has not, this ground must also fail. I would not admit the evidence and reject this ground of appeal. In any event, the material does not meet the established tests for the admission of fresh evidence on an appeal.

Conclusions

98 The Crown case was, in any event, very strong and I am not satisfied that the appellant’s trial miscarried. I would propose that the appeal be dismissed.

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Last Modified: 07/28/2003