Regina v Jung

[2006] NSWSC 660

CITATION:	REGINA v. JUNG [2006] NSWSC 660
HEARING DATE(S):	19 - 23 June 2006; 26 - 28 June 2006
JUDGMENT DATE :	29 June 2006
JURISDICTION:	Criminal
JUDGMENT OF:	Hall J at 1
DECISION:	The forensic photographic evidence is admissible
CATCHWORDS:	Admissibility of forensic photographs
LEGISLATION CITED:	Crimes (Forensic Procedures) Act 2000 Crimes Act 1900
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.

THURDSAY 29 JUNE 2006

2005/657

REGINA v. MYOUNG IL JUNG

JUDGMENT
(On admissibilty of forensic photographs)

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. At the outset, senior counsel for the accused informed the Court that there was a necessity for a ruling upon the admissibility of certain forensic photographs taken by police on 8 November 2004.

2 The issue of the admissibility of the photographic evidence involves a consideration of the Crimes (Forensic Procedures) Act 2000.

Issues in relation to the forensic procedures

3 Whilst a number of discrete matters were traversed by the evidence, the principal issues relied upon by senior counsel for the accused were the following:-

(a) the informed consent of the accused;

(b) the issues as to whether the accused was, having regard to the fact that he could not speak or understand the English language, and, notwithstanding the use of a Korean interpreter, an “incapable person” within the meaning of the Crimes (Forensic Procedures) Act 2000 ;

(c) inconsistency in signed statements by police officers as to whether the accused had or had not consented to the carrying out of forensic procedures;

(d) The alleged lack of material upon which Detective Senior Constable Noble could have been satisfied that the accused was a suspect within the meaning of s.12(a) and the absence of “reasonable grounds” within the meaning of s.12(d) of the Crimes (Forensic Procedures) Act 2000 .

(f) The failure to make available to the accused a copy of photographs taken on 8 November 2004 in accordance with s.59 of the Crimes (Forensic Procedures) Act 2000 .

(g) The failure to make available to the accused a copy of the video recording of the forensic procedures conducted on 8 November in accordance with the provisions of ss.100 and 101 of the above Act.

4 Mr. Terracini, SC. indicated that he would be relying upon the provisions of s.72 and s.82 of the Crimes (Forensic Procedures) Act 2000 and regulations made under that Act.

5 The burden lies on the prosecution to prove on the balance of probabilities that a police officer had a belief on reasonable grounds or suspected on reasonable grounds, as to a matter referred to in the Act: s.103.

6 Section 82 of that Act renders inadmissible evidence which had been obtained in circumstances contrary to the Act other than as provided for in s.82(4) and (5). Section 82 provides:-

“(1) This section applies where:-

(a) a forensic procedure has been carried out on a person, and
(b) there has been any breach of, or failure to comply with:
(i) any provision of this Act in relation to a forensic procedure carried out on a person (including, but not limited to, any breach of or failure to comply with a provision requiring things to be done at any time before or after the forensic procedure is carried out), or
(ii) any provision of Part 11 with respect to recording or use of information on the DNA database system.

(2) This section does not apply if:-

(a) a provision of this Act required forensic material to be destroyed, and


(b) the forensic material has not been destroyed.

Note. Section 83 applies where this Act requires forensic material to have been destroyed.

(3) This section applies:-

(a) to evidence of forensic material, or evidence consisting of forensic material, taken from a person by a forensic procedure, and
(b) to evidence of any results of the analysis of the forensic material, and
(c) to any other evidence made or obtained as a result of or in connection with the carrying out of the forensic procedure.

(4) If this section applies, evidence described in subsection (3) is not admissible in any proceedings against the person in a court unless:

(a) the person does not object to the admission of the evidence, or
(b) in the opinion of the court the desirability of admitting the evidence outweighs the undesirability of admitting evidence that was not obtained in compliance with the provisions of this Act, or
(c) in the opinion of the court, the breach of, or failure to comply with, the provisions of this Act arose out of mistaken but reasonable belief as to the age of a child.


(5) The matters that may be considered by the court for the purposes of subsection (4) (b) are the following:

(a) the probative value of the evidence,

(b) the reasons given for the failure to comply with the provision of this Act,
(c) the gravity of the failure to comply with the provisions of this Act, and whether the failure deprived the person of a significant protection under this Act,
(d) whether the failure to comply with the provision of this Act was intentional or reckless,
(e) the nature of the provision of this Act that was not complied with,
(f) the nature of the offence concerned and the subject matter of the proceedings,
(g) whether admitting the evidence would seriously undermine the protection given to suspects by this Act,
(h) whether the breach of or failure to comply with the provision of this Act was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights,
(i) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the breach or failure to comply,
(j) the difficulty (if any) of obtaining the evidence without contravention of an Australian law,
(k) any other matters the court considers to be relevant.

(6) The probative value of the evidence does not by itself justify the admission of the evidence.
(7) If a judge permits evidence to be given before a jury under subsection (4), the judge must:-
(a) inform the jury of the breach of, or failure to comply with, a provision of this Act, and
(b) give the jury such warning about the evidence as the judge thinks appropriate in the circumstances.”

7 Section 3 of the Act defines the following terms:-

“ appropriately qualified in relation to carrying out a forensic procedure, means:-
(a) having suitable professional qualifications or experience to carry out the forensic procedure, or
(b) qualified under the regulations to carry out the forensic procedure.
forensic material means:-
(a) samples, or
(b) hand prints, finger prints, foot prints or toe prints, or
(c) photographs, or
(d) casts or impressions,
taken from or of a person’s body.
forensic procedure means:-
(a) an intimate forensic procedure, or
(b) a non-intimate forensic procedure, or
(c) the taking of a sample by buccal swab,
but does not include:-
(d) any intrusion into a person’s body cavities except the mouth, or

(e) the taking of any sample for the sole purpose of establishing the identity of the person from whom the sample is taken.

Note. Paragraph (e) makes it clear that the Act only applies to samples taken for forensic purposes and not to samples taken purely to establish the identity of a person.

…

non-intimate forensic procedure means the following forensic procedures:-
(a) an external examination of a part of the body other than:
(i) the genital or anal area or the buttocks, or
(ii) the breasts of a female or a transgender person who identifies as a female, that requires touching of the body or removal of clothing,
(b) the taking of a sample of hair other than pubic hair,
(c) the taking of a sample from a nail or under a nail,
(d) the taking of a sample by swab or washing from any external part of the body other than:-
(i) the genital or anal area or the buttocks, or
(ii) the breasts of a female or a transgender person who identifies as a female,
(e) the taking of a sample by vacuum suction, by scraping or by lifting by tape from any external part of the body other than:-
(i) the genital or anal area or the buttocks, or
(ii) the breasts of a female or a transgender person who identifies as a female,
(f) the taking of a hand print, finger print, foot print or toe print,
(g) the taking of a photograph of a part of the body other than:-
(i) the genital or anal area or the buttocks, or
(ii) the breasts of a female or a transgender person who identifies as a female,
(h) the taking of an impression or cast of a wound from a part of the body other than:-
(i) the genital or anal area or the buttocks, or
(ii) the breasts of a female or a transgender person who identifies as a female,
(i) the taking of physical measurements (whether or not involving marking) for biomechanical analysis of an external part of the body other than:-
(i) the genital or anal area or the buttocks, or
(ii) the breasts of a female or a transgender person who identifies as a female.
suspect means the following:-
(a) a person whom a police officer suspects on reasonable grounds has committed an offence,
(b) a person charged with an offence,
(c) a person who has been summoned to appear before a court in relation to an offence alleged to have been committed by the person.
(d) (Repealed)”


The ERISP and forensic procedures

8 The evidence in relation to the events of 8 November 2004 established the following. The accused was cautioned and advised in term of (then) Part 10A of the Crimes Act 1900, “Detention after arrest for purposes of investigation” (since repealed – Act 103 of 2002). A copy of that Part was tendered and marked as Exhibit A on the voir dire. Sergeant Robert Allison stated that he would have been present but had no independent recollection. He gave evidence as to his general procedure at that time. He signed the original of Exhibit A at 14.10 on 8 November 2004. The document also purports to record the accused’s signature and the name of the interpreter. His practice was to use the interpreter in a case such as the present.

9 A copy of the Custody Management Record in relation to the accused maintained from 14.07 on 8 November 2004 was tendered (Exhibit B on the voir dire). That record included a number of entries including the following:-

“Accused refused forensic procedure at 17.55, sought legal advice resulting in procedure carried out at 1925 completed 1940. (p.5)
Time created – 19.20 8/11/04 contact made … solicitor … end time – 18.00 (p.5)
17.50 8/11/04 (Procedure) Buccal Swab – action time 17.05 8/11/05.
Was the person cautioned prior to performing the procedure: Y
Did the POI resist the carrying out of the forensic procedure Y.”

10 Sergeant Allision stated that he normally recorded the reason given for the refusal by a suspect to undergo forensic procedure but did not on this occasion.

11 The Field Arrest Form (part of Exhibit D on the voir dire) recorded the commencement of the ERISP to have been 2.06 pm (1406 hours).

12 The Crown called the interpreter who acted as interpreter for the accused on 8 November 2004, Ms. Ki Soo Ng Lee. She stated that she so acted between 1.00 pm to 8.00 pm on that date. At the commencement, she read Exhibit A (the Part 10A Summary and Caution) to the accused. She stated that on more than one occasion the accused indicated that he did not wish to participate in a forensic procedure.

13 Ms. Lee later spoke to the accused’s solicitor and she then translated what the solicitor had said to her to the accused. Following that, the accused agreed to take part in a forensic procedure. The accused, according to her, did not exhibit any difficulty in understanding any of the concepts which she translated. She said in evidence that she did not say words to the effect that the accused had to have an interview with police. Ms. Lee stated that she was present when the accused signed the Forensic Procedure Consent From (Exhibit E on the voir dire).

14 Senior Constable Howard Fox was custody manager on the evening of 8 November 2004 and took over from Sergeant Allision at 17.50 hours. He too had little independent recollection of the matter. He confirmed that p.7, Record of Requests in Exhibit B, indicated that at 17.50, the accused made a request to speak to a solicitor and the call was actually made at 17.55 and lasted until six o’clock (1800). He confirmed that the accused, according to p.7 of Exhibit B, was charged between 1800 and 1900 hours.

15 Senior Constable Fox stated that p.2 of Exhibit B recorded his comment that the accused appeared “fit and well”. The entry “visual assessment” recorded his own observations of the accused.

16 There was, as earlier stated, conflict between documents as to whether the accused finally consented to the forensic procedures being performed. Exhibit 3, the Forensic Procedure Consent Form No. 14975 completed by Detective Senior Constable Jarrod Noble purports to record the accused’s consent given on 8 November 2004 at 19.25 (or 7.25 pm). Exhibit 2, also recording the same date and time, completed by Acting Inspector Mark Stephen Smith, was a copy of an order made for a non-intimate forensic procedure with respect to the accused. It recorded that the accused “has not consented”. A further inconsistency related to the description of the forensic procedure. This was described as “buccal swab” on the former document and both “buccal swab and photograph” on the latter document.

17 There being only one consent form in evidence (Exhibit 3) it is clear that Acting Inspector Smith recalled that the accused declined a forensic procedure “in the first instance”. He was asked to order a non-intimate forensic procedure and filled out the required form. His recollection was that the accused later consented following a conversation with his solicitor.

18 Sergeant Donald Whiteway was Acting Inspector in 2004. He gave evidence that he had no recall saying to the accused that he was required or compelled to participate in the interview. He thought that the accused understood the questions put to him.

19 Detective Inspector Bailey is the officer in charge of the investigation. He conducted the ERISP and gave the accused the standard warning as recorded in the transcript. He said the accused did not say he participated in the interview because he felt he was compelled to or had to. He considered the accused was lucid and clearly understood what was being asked. He indicated no “unhappiness” in being asked to have a buccal swab. He, at no time, indicated that he was being forced or required to answer questions.

20 Detective Inspector Bailey, in evidence, also stated:-

(a) The accused volunteered the statement “at the moment, I will agree with whatever you want me to do, the photo taken or the saliva, DNA tests, I will do it” .

(b) The accused did not indicate that he was being forced or required to answer the questions.

21 Detective Senior Constable Noble agreed that his voice was recorded on the forensic procedure video. He commenced the forensic procedure at about 5.06 pm. He provided a warning as to the accused’s right to silence. He indicated to the accused the he could refuse his consent to the procedures if he wished. The forensic procedure was suspended at 5.24 pm and recommenced at 5.49 pm. At that point, Acting Inspector Whiteway came in. He also gave evidence as to the following matters:-

• The accused had refused to give consent to the forensic procedures.

• The interview was suspended at either 7.21 pm or 7.05 pm. The accused spoke to a solicitor.

• At the conclusion of the procedure, he, Acting Inspector Whiteway, was given a copy of the order made by Inspector Smith at 7.25 pm.

• “In the end” the accused consented to the procedures. There was no evidence that a copy of Exhibit 2 was provided to the accused, although Detective Senior Constable Noble said he gave him a copy.

• When the interview resumed following the suspension, the accused consented as is recorded on the video.

• He agreed that on two occasions, he asked the accused to consent to a buccal swab only and on the final occasion there was a request for a buccal swab and photographs.

• Exhibit 3 referred only to a buccal swab. It should, he said, have referred to photographs as well.

• He did not hold any qualification in terms of taking photographs.

22 Part 6 of the Act makes provision for the carrying out of a forensic procedure with the informed consent of the suspect person. Part 4 makes provision for the carrying out of a non-intimate forensic procedure on a suspect by order of a senior police officer. Part 5 provides for the making of a court order for the carrying out of a forensic procedure on a suspect, and such an order would be required in relation to an intimate forensic procedure..

23 The first issue is whether, by reason of the circumstances in which the photographs were taken, s.82 comes into operation. If so, should the evidence be admitted? That question involves consideration of s.82(4)(b) and s.82(5).

24 The issue at trial is one of identity. The accused denies that he was the offender responsible for the deaths of the deceased. He maintains that he was not present and that he is not the person of interest shown in certain CCTV images taken shortly after the deceased died. The Crown seeks to rely upon the CCTV footage taken in February 1997 and images taken from it for the purposes of an anthropological analysis conducted by a forensic anatomist, Dr. Sutisno.

25 The evidence includes a video recording made for the purposes of recording the procedures purportedly undertaken pursuant to the above Act. A review of the evidence on the voir dire is contained in the judgment delivered as the admissibility of Dr. Sutisno’s evidence. Accordingly, it is not repeated here.

26 Insofar as they were able to give evidence as to their independent recollection, I accept the evidence of the police officers as to the events that took place in the forensic procedures interview. The evidence establishes:-

(a) The accused initially refused his consent to the procedures.

(b) He interrupted the interview and spoke to his solicitor via the interpreter.

(c) He subsequently consented to the procedure including the taking of forensic photographs.

(d) The forms completed by Detective Senior Constable Noble and Acting Inspector Smith, though inconsistent, are to be reconciled by the fact that the latter document was prepared in anticipation of a refusal of consent. The video recording plainly indicates that he consented to both the buccal swab and the photographs.

(e) The accused understood the purpose of both procedures and consented with full understanding.

Appropriately qualified police officer

27 Detective Senior Constable Noble did not have a professional qualifications or experience suitable for carrying out the taking of photographs “of a part of the body”. He had limited experience in taking photographs but not in relation to forensic photographs.

28 The relevant matters concerning of this non-compliance includes:-

(a) The taking of photographs for forensic purposes should be undertaken with a view to ensuring that appropriate procedures are in place, appropriate equipment is used and appropriate measures are taken to ensure that relevant data is recorded so that, if necessary, the circumstances bearing on the photo technique employed can be ascertained or referred to.

(b) The non-compliance cannot be said to be wilful or reckless. It appears that at least as at November 2004 prescribed procedures for the taking of photographs were either not in place or not made well-known.

“Reasonable grounds to believe”: s.12(d)

29 The requesting officer referred to in s.11 of the Act must be satisfied in terms of s.12(d). The requesting officer may not necessarily be the officer that, so far as this case is concerned, actually took the forensic photographs.

30 Detective Inspector Bailey requested the accused to provide a photograph for comparison with the videos and other photographs (question 159 of the ERISP).

31 Inspector Bailey is, as earlier noted, the officer in charge of the investigation and was, accordingly, in possession of knowledge of the ATM photographs, the passport details, personal identification number and other material sufficient, in my opinion, to provide “reasonable grounds” within s.12(d).

32 The forensic procedure interview followed the ERISP. There is no written transcript of the procedure. Detective Senior Constable Noble was the person recorded on videotape during the forensic procedure interview. He was requested by Detective Inspector Bailey to conduct the forensic procedures. He had not been involved in the investigation at that time. It may be said that Detective Senior Constable Noble did not personally have reasonable grounds for belief in terms of s.12(d) but he was, however, acting at the direct request of Detective Inspector Bailey who, as stated above, did have such reasonable grounds. In such circumstances, even if it could be said that there was a failure to comply with s.12(d), so far as Detective Senior Constable Noble is concerned, it is a very technical non-compliance, given Inspector Bailey’s knowledge, direct involvement and supervision.

Making available a copy of forensic photographs

33 Copies of the forensic photographs taken on 14 November 2004 were provided at a late stage as part of the Crown brief. The photographs supplied were said to have been “burnt” on a disc and given to the investigating officer but there is no evidence of a copy of them being given to the accused, other than as stated above.

34 There is no evidence showing that the procedure for supplying copies of photographs was followed as prescribed by s.101(1) of the Act or within 90 days, as prescribed by s.101(2). The conclusion may be drawn that s.101 was not complied with in terms of providing copies of the video recording.

35 The obligation under s.100(1) to provide an opportunity to a suspect or offender to listen or view a recording, or under s.100(2) the same opportunity to a suspect’s or offender’s legal representative, is not subject to any prescribed procedure or time limit. Whether there was any non-conformity with s.100(2) is not clear on the evidence.

36 It is necessary to consider the consequences of such contravention of the Act in terms of s.82.

37 Section 82 applies where there has been a breach of or a failure to comply with a provision of the Crimes (Forensic Procedures) Act. In particular, s.82(3) provides that it applies to evidence of forensic material taken from a person by a forensic procedure.

38 Section 82(4) provides that evidence described in s.82(3) is not admissible in any proceedings against the person in a court unless, inter alia:-

“(b) In the opinion of the Court, the desirability of admitting the evidence outweighs the undesirability of admitting evidence that was not obtained in compliance with the provisions of this Act …”

39 Section 82(5) prescribes the matters that may be considered by the Court for the purposes of s.82(4)(b). Section 82(5) is as follows:-

“(5) The matters that may be considered by the court for the purposes of subsection (4) (b) are the following:

(a) the probative value of the evidence,

(b) the reasons given for the failure to comply with the provision of this Act,
(c) the gravity of the failure to comply with the provisions of this Act, and whether the failure deprived the person of a significant protection under this Act,
(d) whether the failure to comply with the provision of this Act was intentional or reckless,
(e) the nature of the provision of this Act that was not complied with,
(f) the nature of the offence concerned and the subject matter of the proceedings,
(g) whether admitting the evidence would seriously undermine the protection given to suspects by this Act,
(h) whether the breach of or failure to comply with the provision of this Act was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights,
(i) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the breach or failure to comply,
(j) the difficulty (if any) of obtaining the evidence without contravention of an Australian law,

(k) any other matters the court considers to be relevant.”

40 I turn to consider each of the matters to which my attention is required to be directed in accordance with the provisions of s.82(5):-

(a) The probative value of the evidence

41 The forensic photographs taken on 8 July 2004 produced images of the accused from a number of angles. They were not, however, taken in accordance with procedures that would be adopted by a forensic photographer. That renders them potentially, subject to deficiencies and that in turn can affect their reliability. However, I do not regard the photographs for that reason as either necessarily devoid of probative value or to have been distorted or corrupted by the lack of procedures having been adopted. Of course when the evidence is given at trial it may be that the probative value or weight of them is the subject of challenge in the light of the evidence given on the voir dire by Mr. Porter. The evidence is part of the foundational material required for morphological analysis and is potentially probative on “similarities” relevant to identity.

(b) The reasons given for the failure to comply with the provisions of this Act

42 The photographs were taken by Detective Sergeant Noble. There was apparently at the time no course directed to photographic technique or to procedures to be followed in relation to photographs taken as a forensic procedure pursuant to the Crimes (Forensic Procedures) Act 2000 or if there were they were not made well-known.

43 The non-compliance was one of an omission due to inadvertence, not wilfulness or recklessness.

(c) The gravity of the failure to comply with the provisions of this Act and whether the failure deprived the person of a significant protection under this Act

44 There has been no submission made in this respect on behalf of the accused. Non-compliance with any provision of the Act potentially gives rise to serious consequences. However, I do not consider that the accused has been irreparably prejudiced by the abovementioned instances of non-compliance.

(d) Whether the failure to comply with the provisions of the Act was intentional or reckless

45 I have dealt with this above.

(e) The nature of the provisions of this Act was not complied with

46 The provisions requiring an appropriately qualified person are protective of the interests of the Crown and of an accused person in ensuring persons who are appropriately qualified carry out forensic procedures. Sections 100 and 101 are designed to ensure an accused has the benefit of investigative materials obtained under the Act.

(f) The nature of the offence concerned and the subject matter of the proceedings

47 The offences on the indictment presented are of the most serious kind.

(g) Whether admitting the evidence would seriously undermine the protection given to suspects by this Act

48 There is no basis whereby such a conclusion can be drawn. No specific submission to this effect was advanced. I do not consider that this matter is a factor against admitting the evidence obtained.

49 I have set out above the opinion which the Court is required to form pursuant to s.82(4) of the Act. The probative value of the evidence above would not itself or alone justify the admission of the evidence: s.82(6). The crimes charged are of the most serious nature and that is a particular consideration of relevance: s.85(5)(a) and (f).

50 I have weighed up each of the matters to which I have referred. I am of the opinion that the desirability of admitting the evidence the subject of challenge outweighs the undesirability of admitting such evidence.

51 The evidence the subject of the challenge, the forensic photographs, should be admitted and I so rule.

52 I add that I have borne in mind s.138 of the Evidence Act in light of the written submissions made. I do not consider that the evidence should be excluded under that provision. The matters to which I have specifically referred to above also bear upon the relevant considerations under that section.

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