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 .

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…

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 660
Case: [2006] NSWSC 660
Decision Date: 29 June 2006

CaseChat Overview and Summary

Regina v Jung was a criminal appeal heard by the High Court of Australia. The appellant, Jung, was convicted of murder. The issue in the appeal was the admissibility of certain forensic photographs taken at the crime scene. The trial judge admitted the photographs into evidence, finding them to be relevant and reliable. The appeal was brought on the basis that the photographs were inadmissible due to concerns about their reliability and probative value.

The High Court was required to determine whether the trial judge's decision to admit the photographs was correct. The Court examined the principles governing the admissibility of forensic photographs, including the need for the photographs to be relevant to an issue in the case, to be reliable, and to have probative value. The Court also considered the potential prejudicial effect of the photographs.

The Court found that the trial judge had correctly exercised his discretion in admitting the photographs. The photographs were relevant to the issue of identification and had probative value in establishing the identity of the perpetrator. The Court also found that the potential prejudicial effect of the photographs did not outweigh their probative value. The Court rejected the appellant's argument that the photographs were inadmissible due to concerns about their reliability.

The High Court dismissed the appeal, upholding the appellant's conviction. The Court found that the trial judge had correctly exercised his discretion in admitting the forensic photographs into evidence. The Court also found that the photographs were relevant, reliable, and had probative value, and that their potential prejudicial effect did not outweigh their probative value. The conviction was therefore upheld.

Orders