Regina v Park

[1999] NSWSC 953

CITATION:	REGINA v. PARK [1999] NSWSC 953
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	No. 70085 of 1998
HEARING DATE(S):	Friday 17 September 1999
JUDGMENT DATE:	17 September 1999
PARTIES :	REGINA v. PARK, Sung Eun
JUDGMENT OF:	Greg James J at 1

COUNSEL :	Crown: T. Hoyle, SC. Acc: I. Temby, QC./C. Traill
SOLICITORS:	Crown: S.E. O'Connor Acc: Stewart Levitt & Co.
CATCHWORDS:	Criminal trial - application to cross-examine in re-examination - lay opinion evidence - character in a particular respect - prior inconsistent statement - original belief inconsistent with present testimony - limited leave granted in respect of general position - particular matters ruled too prejudicial.
ACTS CITED:	Evidence Act 1995
DECISION:	Application granted

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

No. 70085 of 1998

GREG JAMES, J.

FRIDAY 17 SEPTEMBER 1999

REGINA v. SUNG EUN PARK

JUDGMENT
(Crown's application under s.38 to cross-examine Mina Park on her statement of 7 May 1997 - see p.524 of the transcript)

1 HIS HONOUR: In my view notwithstanding the objection, the application of s.78 does not preclude the giving of the evidence sought to be elicited. 2 In cross-examination evidence has been elicited from the witness as to her beliefs concerning her brother and her knowledge of her brother from which she has given evidence of her opinion of her brother's character, at least in particular respects. There has also been elicited from the witness evidence of her belief that her brother, in the absence of insanity, would not have killed his wife and children or, presumably, been party to a killing of his wife and children (see Evidence Act, ss.78 and 110). 3 The evidence the Crown now seeks to elicit is of a statement made, as was pointed out by Mr. Temby in his objection, at an earlier point of time to the ascertainment that they were in fact murdered, prior to the finding of the bodies but after their disappearance. That evidence would go to a number of matters. Firstly, knowledge on the witness' part that her brother was lying when he gave an account that his wife and children had gone to Brisbane; secondly, the witness' belief, expressed in the terms, "I am in no doubt that he was involved in the disappearance of Susan and the children", and thirdly, a speculation as to a number of possibilities as to the way in which he might have been so involved. 4 As to these, it was one possibility that he might have, with his girlfriend, Demi, taken them far away and threatened that he and she would do something to them in order to liquidate the deceased's possessions, to provide money for he and Demi to go to Korea. They did, in fact, the evidence will show, go to Korea and did seek to obtain her money. 5 Another possibility that is raised is that on the way to "dump them", this being presumably a reference to taking them far away, the girlfriend or the accused might have hurt one of the kids or Susan, or one of them, in the heat of the moment and that Susan and the kids may be dead or if any had survived they were too frightened to return to Sydney. 6 There were other speculations as to prostitution, that is, that Susan had been sold off by the accused for the purpose of prostitution to compensate for gambling debts and that the accused might have enquired about putting the children in some charitable institution, particularly a convent. 7 Lastly it is suggested that Susan may have agreed to have the accused take them somewhere remote where they had been abandoned, from which they may not have wished to return, or she may have returned on her own with the kids. The various possibilities are all speculative, but they have a common feature; they all speculate on a basis of the involvement of the accused in the disappearance of his wife and children. 8 Mr. Temby raises objection, firstly, on s.78 and, secondly, he invokes my discretion and, as to the last of the possibilities raised, points out that the involvement is not there directly, but proceeds through Susan and the circumstances in which she found herself, her marriage being at an end and her husband being involved with another woman. 9 I am of the view that the speculation as to possibilities goes too far for them to be led, in that matters of such particularity are referred to, and hence the prejudice is acute. But I do not consider that, in the light of the cross-examination, it would be proper to restrict the Crown from ascertaining from this witness that, although she is now of the opinion that, absent insanity, her brother would not be involved criminally in the death or disappearance of the deceased, whether there was a point of time at which she held a contrary view. She is as qualified to give that evidence as she was to give the evidence in cross-examination. 10 I do not consider, however, that it would be open to the Crown in that regard to seek to obtain from the witness her subjective opinion that her brother had been lying in the story that he gave on the Friday, since the basis for that merely appears to be that the conversations did not make sense. 11 It follows that on the application under s.38 it is open to question the witness, by leave, and I so rule, about that prior inconsistent account, but only to the extent I have ruled.

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Last Modified: 09/20/1999