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Court of Criminal Appeal 23 July 2003

R v Sung Eun PARK [2003] NSWCCA 203 revised - 24

[2003] NSWCCA 203

Homicide
CRIMINAL LAW CONVICTION APPEAL DIRECTIONS ON PROPENSITY DIRECTIONS ON SILENCE FRESH EVIDENCE

Citation: R v Sung Eun Park [2003] NSWCCA 203
Court: NSW Court of Criminal Appeal
Date: 23 July 2003
Judge(s): Ipp JA, Buddin J, Shaw J (Shaw J delivered the principal judgment; Ipp JA and Buddin J agreed)

Background

The appellant was convicted by jury of the murder of his wife and two young children, whose skeletal remains were discovered in suitcases in Watagan State Forest in August 1997. The pathologist concluded that each victim had been suffocated. The Crown alleged the deaths occurred on the night of 17 to 18 October 1996 at the deceased's flat in Eastwood, New South Wales.

The Crown case was entirely circumstantial. It relied on a combination of factors: the breakdown of the appellant's marriage, his relationship with another woman, his presence near the flat on the night in question, his conduct and statements in the days following the deaths, his palmprint on bank withdrawal forms signed after the time of death, and the discovery of his jacket inside one of the suitcases.

The appellant did not give evidence at trial. He was convicted on all three counts of murder on 7 March 2000 and subsequently appealed to the Court of Criminal Appeal.

  • Whether, on the circumstantial evidence, there remained a reasonable hypothesis consistent with innocence such that the jury ought not to have convicted
  • Whether the trial judge's directions on propensity evidence were adequate or gave rise to error
  • Whether the trial judge's direction on the appellant's silence (his election not to give evidence) was adequate, particularly in light of the High Court's subsequent decision in Azzopardi v The Queen (2001) 205 CLR 50
  • Whether fresh evidence going to the credibility of a key Crown witness, Ms Hwang, should be admitted and warranted a new trial

Decision

Circumstantial evidence ground: The Court found the Crown case was very strong. The combination of circumstances, including the appellant's conduct and statements on the night, his palmprint on documents withdrawing the children's savings after their deaths, his transportation of what appeared to be the bodies, and the discovery of his jacket with the remains, left no reasonable hypothesis consistent with innocence. This ground was rejected.

Propensity directions: The Court considered whether the trial judge's directions adequately addressed the use the jury could make of propensity or tendency evidence. Shaw J found no reversible error in the directions as given, and this ground was not upheld.

Silence directions: The trial judge directed the jury that no adverse inference should be drawn from the appellant's election not to give evidence, and told the jury to keep their focus on the Crown's obligation to prove its case. The Court acknowledged that the High Court's joint judgment in Azzopardi (handed down after the summing up) indicated that a somewhat more explicit direction would "almost always be desirable." However, the Azzopardi formulation was not expressed as universally mandatory. Crucially, defence counsel had not objected to the direction at trial. In all the circumstances, the Court declined to grant leave to argue this ground.

Fresh evidence: The appellant sought to rely on fresh evidence, by way of affidavit, challenging the credibility of Ms Hwang, a key Crown witness who gave detailed evidence about the appellant's movements and statements. Counsel for the appellant conceded this ground only had traction if the first ground (circumstantial evidence) succeeded. As it did not, the fresh evidence ground also failed. The Court further found the material did not satisfy the established tests for admission of fresh evidence on appeal.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a strong circumstantial case leaves no room for a reasonable hypothesis consistent with innocence, and that the jury was entitled to convict on the evidence presented.
  • A trial judge's direction on an accused's silence will not automatically constitute error on appeal simply because a later High Court authority indicated a more elaborate direction would be "almost always desirable," particularly where no objection was taken at trial.
  • Fresh evidence going to a Crown witness's credibility will not be admitted on appeal unless it satisfies established threshold tests, and will in any event carry little weight if the primary ground upon which its relevance depends has already been rejected.
  • The Azzopardi formulation for jury directions on an accused's election not to testify was described by the High Court as generally desirable rather than strictly mandatory, and the Court of Criminal Appeal applied that characterisation in declining leave on this ground.
  • No error was established in the trial judge's propensity directions in the circumstances of this case.

Legislation and Cases Referenced

Cases cited:
- Azzopardi v The Queen (2001) 205 CLR 50
- Barca v The Queen (1975) 133 CLR 82
- BRS v The Queen (1997) 191 CLR 275
- Domican v The Queen (1992) 173 CLR 555
- Gilbert v The Queen (2000) 201 CLR 414
- Palmer v The Queen [1971] AC 814
- Pemble v The Queen (1971) 124 CLR 107
- R v Clarke (1995) 78 A Crim R 226
- R v Dinnick (1909) 3 Cr App R 77
- R v Dudko [2002] NSWCCA 336
- R v Elfar [2000] NSWCCA 225
- R v Tillman [1962] Crim LR 261
- RPS v The Queen (2000) 199 CLR 620
- Van den Hoek v The Queen (1986) 161 CLR 158

Legislation: No specific legislation was cited in the provided text.