R v. Park - [2008] QCA 383

SUPREME COURT OF QUEENSLAND

CITATION:

R v Park [2008] QCA 383

PARTIES:

R
v
PARK, Jin Sup Julius
(appellant)

FILE NO/S:

CA No 369 of 2007
DC No 3603 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Orders delivered ex tempore 26 November 2008
Reasons delivered 4 December 2008

DELIVERED AT:

Brisbane

HEARING DATE:

26 November 2008

JUDGES:

Keane and Fraser JJA and McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – FRESH EVIDENCE – MATERIALITY AND COGENCY – GENERALLY – where the appellant was convicted upon the verdict of a jury of two counts of rape – where the only issue at trial was whether the acts of sexual intercourse were consensual – where on appeal the appellant sought to adduce fresh evidence of an alleged confession by the complainant to a third party of the falsity of the allegations of rape – where such evidence was not available at trial – whether the evidence upon which the appellant now seeks to rely is "fresh" – whether it is likely that, had the fresh evidence been before the jury, a verdict of guilty would not have been returned

Bain v R (2007) 23 CR NZ 71; [2007] UKPC 33, considered
Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, applied
Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49, applied
R v Katsidis; ex parte A-G (Qld)[2005] QCA 229, cited

COUNSEL:

D J Walsh for the appellant
M J Copley for the respondent

SOLICITORS:

Rostron Carlyle Solicitors for the appellant
Director of Public Prosecutions (Queensland) for the respondent

KEANE JA: On 6 December 2007 the appellant was convicted upon the verdict of a jury of two counts of rape. He was sentenced on the following day to concurrent sentences of six years imprisonment in respect of each offence with a parole eligibility date of 7 December 2010.

The appellant sought to appeal against both conviction and sentence. It was said in his notice of appeal that the "verdict was unsafe and unsatisfactory." It was also said that the "sentence imposed was manifestly excessive in all the circumstances."

On the hearing of the appeal, however, the appellant did not pursue the contention that the verdict "was unsafe and unsatisfactory", and the application for leave to appeal against sentence was not pursued at all.

So far as the challenge to the appellant's conviction is concerned, the appellant sought to have the conviction set aside and a new trial ordered on the basis of what was said to be fresh evidence.

The Court heard the appeal on 26 November 2008. At the conclusion of the argument, the Court announced that it had decided to allow the appeal, to quash the convictions and to order a…

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. Park

Details

AGLC: R v Park [2008] QCA 383
Case: [2008] QCA 383
Decision Date: 4 December 2008

CaseChat Overview and Summary

In the matter of R v Park, the appellant was convicted by a jury on two counts of rape. The central issue at trial was the consent of the complainant to the acts of sexual intercourse. On appeal, the appellant sought to introduce fresh evidence of an alleged confession by the complainant to a third party, claiming the allegations of rape were false. This evidence was not available at the time of the trial. The appeal raised questions about the admissibility of fresh evidence in criminal appeals, specifically whether the proposed evidence was truly new, material, and cogent enough to potentially alter the outcome of the trial.

The court examined whether the proposed confession constituted fresh evidence, considering its unavailability at the time of the trial. It also assessed the materiality and cogency of the evidence. The appellant argued that the confession, if believed, would have significantly undermined the credibility of the complainant's testimony, potentially leading to an acquittal. The court held that for evidence to be considered fresh, it must be newly discovered and could not have been obtained with due diligence at the time of the trial. Furthermore, the court determined that for the evidence to be material, it must have a bearing on the substantial justice of the case. The cogency of the evidence was also scrutinised to determine whether it was reliable and believable enough to affect the jury's decision.

Upon evaluating the evidence, the court concluded that the proposed confession did not meet the criteria for fresh evidence as it could have been discovered with due diligence. Additionally, even if considered fresh, the evidence did not possess the necessary materiality and cogency to reasonably affect the jury's verdict. The court found that the confession was not sufficiently reliable or convincing to overturn the conviction. Consequently, the appeal was dismissed, and the original convictions were upheld.

Orders