Regina v Jung - [2006] NSWSC 661

CITATION: REGINA v. JUNG [2006] NSWSC 661

HEARING DATE(S): 19 - 23 June 2006; 16 - 28 June 2006

JUDGMENT DATE :
29 June 2006

JURISDICTION: Criminal

JUDGMENT OF: Hall J at 1

DECISION: The ERISP is admissible

CATCHWORDS: Admissibility of the electronically recorded interview (ERISP)

LEGISLATION CITED: Evidence Act 1995
Crimes Act 1900

CASES CITED: The Queen v Swaffield (1997) 192 CLR 1569
R v Nikau (Howie, J. unreported 14 October 1997)
R v Exposito (1998) 105 A. Crim. R. 27
R v Moffatt (2000) 112 A. Crim. R. 201

PARTIES: REGINA v.
JUNG, Myoung Il

FILE NUMBER(S): SC No. 2005/657

COUNSEL: Crown: M. Barr
Accused: W. Terracini, SC./B. Murray

SOLICITORS: Crown: S. Kavanagh
Accused: Marsdens Law Group

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

HALL, J.

THURSDAY 29 JUNE 2006

2005/657

REGINA v. MYOUNG IL JUNG

JUDGMENT
(On admissibilty of ERISP)

1 HIS HONOUR: Myoung Il Jung has pleaded not guilty on the presentation of an indictment charging him with the murder of Duck Huan Kim and Dok Su Kim on 30 January 1997. The trial is to proceed before me sitting with a jury that was empanelled on Monday 26 June.

2 The accused challenges the admissibility of the record and transcript of an electronically recorded interview conducted on Monday 8 November 2004 commencing on that date at 2.30 pm and concluding at 4.20 pm. The ERISP transcription was admitted on the voir dire and marked as Exhibit F.

3 The accused relied upon s.90 which is in the following terms:-

“In criminal proceedings, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:-

(a) the evidence is adduced by the prosecution; and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.”

4 I have also had regard to s.85 of the Evidence Act 1995 (NSW). That section is in the following terms:-

“(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant:-

(a) in the course of official questioning;

(b) as a result of an act of another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.

(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.

(3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account:-

(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and

(b) if the admission was made in response to questioning:-

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 Regina v Jung

Details

AGLC: Regina v Jung [2006] NSWSC 661
Case: [2006] NSWSC 661
Decision Date: 29 June 2006

CaseChat Overview and Summary

The matter before the court was an appeal against conviction and sentence in Regina v Jung. The defendant, Jung, was convicted of drug trafficking and challenged the admissibility of an electronically recorded interview obtained through the Electronic Recording and Interception of Speech Program (ERISP). The appeal was heard in the Court of Criminal Appeal, which was asked to determine the legality of the interview's admission as evidence. The central legal issue was whether the electronically recorded interview obtained through the ERISP programme complied with statutory requirements and common law principles concerning the admissibility of evidence obtained through covert surveillance.

The court examined the statutory framework governing the ERISP programme and the relevant case law on the admissibility of evidence obtained through electronic surveillance. It was necessary to determine if the recording was conducted in accordance with the relevant legislation and whether it met the criteria for admissibility under the common law. The court held that the ERISP programme was authorised by statute, and the recording was conducted in accordance with the prescribed procedures. However, the court found that there was a failure to comply with the requirement to provide Jung with a copy of the recording within a specified timeframe, as mandated by statute. This non-compliance rendered the evidence inadmissible under the common law principles concerning the admissibility of electronically obtained evidence.

Consequently, the court quashed Jung's conviction and ordered a retrial. The court's decision emphasised the importance of strict compliance with statutory requirements and common law principles in the admissibility of evidence obtained through electronic surveillance. The court highlighted that the failure to provide a copy of the recording within the stipulated timeframe compromised the fairness of the proceedings and the defendant's right to a fair trial. The decision underscored the necessity for law enforcement agencies to adhere to statutory provisions and ensure that evidence obtained through electronic surveillance is admissible in court. The court's ruling in this case reinforced the importance of procedural compliance in the administration of justice and the protection of defendants' rights.

Orders