Park v The Queen [2004] HCATrans 401 (12 October 2004)

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Park v The Queen [2004] HCATrans 401 (12 October 2004)

Last Updated: 18 October 2004

[2004] HCATrans 401

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S44 of 2004

B e t w e e n -

SUNG EUN PARK

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 12 OCTOBER 2004, AT 2.01 PM

Copyright in the High Court of Australia

MR A.J. BELLANTO, QC: May it please the Court, I appear with MR W.P. LOWE for the applicant. (instructed by Patricia White & Associates)

MR G.E. SMITH, SC: If the Court pleases, I appear for the respondent. (instructed by Solicitor for Public Prosecutions (New South Wales))

McHUGH J: Congratulations, Mr Smith, on your new appointment.

MR SMITH: Thank you, your Honour. I am very happy about it myself.

McHUGH J: Yes, Mr Bellanto.

MR BELLANTO: If the Court pleases. The first point I need to raise is to seek leave out of time.

McHUGH J: You are almost six months out of time, but I would go to the substance of the matter.

MR BELLANTO: Thank you, your Honour.

McHUGH J: This is a murder appeal.

MR BELLANTO: Secondly, may I ask your Honours to amend the supplementary application book. On the first page there are some changes in the page references in the index. Page 13 should be page 2.

KIRBY J: I do not think we will worry about that now.

McHUGH J: No.

KIRBY J: Go straight for the jugular, Mr Bellanto.

McHUGH J: Yes, do not waste your time.

KIRBY J: There are three points. We want to hear about them.

MR BELLANTO: If your Honour pleases. The application concerns the evidence of an important prosecution witness indemnified from prosecution by Justice Shaw, who was the Attorney-General when indemnity was granted, and his Honour also delivered the lead judgment in the court below. The witness’ credibility was an integral part of the prosecution and defence cases. Her evidence raises questions concerning the administration of criminal justice generally and in the circumstances of the present case, in that this Court should not countenance or condone an important Crown witness indemnified from prosecution for any offence in relation to the case under appeal by the same person who was a member of the court which heard the appeal from a conviction based upon that witness’ evidence, either wholly or to a significant extent.

KIRBY J: Is that your best point, is it, the point about Justice Shaw?

MR BELLANTO: No, your Honour. I need to give your Honours an overview of the three points, because cumulatively we argue that that has produced a miscarriage of justice when taken into account.

KIRBY J: But one and two are related, but three is a completely separate issue.

McHUGH J: Three is really irrelevant, is it not, because if you cannot succeed on one and two, why are we going to grant you special leave to appeal? That would mean that the judgment below was right.

MR BELLANTO: Of course, his Honour granted the indemnity based upon information no doubt supplied to him as to the credibility of the Crown witness – we say the critical Crown witness – and then his Honour considered the fresh evidence in the court below.

McHUGH J: Yes, but you are seeking special leave to appeal, and you would have to show, before we could grant you special leave, that there was some arguable point that the decision below was wrong. If there is no miscarriage of justice, we are not going to grant special leave on a point that is irrelevant.

KIRBY J: I suppose you say it goes to the integrity of the conviction, it goes to the very heart of the safety of a conviction made by a judge who participates in two ways. But the problem with that is that Attorneys-General sign hundreds of these documents and they have a mountain of paper that goes by them. I was reading the other day of Sir Robert Garran’s work with Higgins as Attorney-General. Higgins would not sign anything until everything was carefully explained. Well, that just cannot be done nowadays. There is just too much of it. So, if it had affected his Honour, one would have expected that he would not have sat.

MR BELLANTO: Well, your Honour, the applicant does not know and - - -

KIRBY J: I appreciate that, but it was on notice to you, it was on the record. You had the document and you did not raise the point at trial. How would we be able to establish it without some evidence, which is not there except for the document? I mean, how would we know of what his Honour did or did not do as Attorney-General and how much information, if he remembered it, if he had any knowledge of it? It is really left in a very unsatisfactory state.

MR BELLANTO: That is part of the problem, as we see it, in that, in the court below, his Honour did not raise it. The facts of this case were somewhat - - -

KIRBY J: That is consistent with not remembering that he had anything to do with it.

MR BELLANTO: Well, it may or may not be. We just do not know. That is part of our complaint.

KIRBY J: Your side knew of it and did not raise it. It was not raised in objection to the judge.

McHUGH J: Mr Bellanto, you would be well advised to move onto your first point, because your time is going.

MR BELLANTO: Thank you, your Honour. In relation to ground 1, the reference to the alternative hypothesis is in the application book at 257 - - -

KIRBY J: This is another point that was raised. It was raised by Justice Sperling. I am not blaming you, but it was not really pursued. In fact, it was denied. Your side said “Don’t”.

MR BELLANTO: No, we embraced it. It having been raised by his Honour, we embraced it. Mr Temby embraced the point, after some debate, and then asked his Honour to put it. His Honour then thought about it overnight and came back and said, “No, I have thought about it. I wish I had not raised it in the first place”. Now, our argument is that although counsel has not advanced it initially and it certainly was not part of the defence case, it certainly goes to a hypothesis available on the evidence which we say should have been left to the jury, particularly in this case, when there was a real risk of reverse reasoning, because a substantial body of evidence went to the disposal of the bodies, a highly emotive part of the Crown case. The jury’s reasoning may well have been, “Well, he was involved in the disposal of the bodies, therefore, he must have committed the murders”.

Now, that was not part of the defence case, but the jury needed to be told and needed to have the imprimatur of the trial judge that this was an available hypothesis open to them, to avoid the risk of that type of reasoning. It certainly was not part of the defence case, and could not be, to advance this for tactical reasons, but, consistent with Pemble and some other cases that are well known, we say that that direction should have been given.

Now, your Honours may say that will open the floodgates to all and sundry directions in respect of factual permutations or hypotheses if this point gets up. We say that there are cases, of which this is one, where such a direction should be given, particularly a case like this, where it was at the very heart of the issues before the jury. It is in those circumstances that we say it should have been given, particularly, as some of the authorities that we have been able to track down do not advert to the question of whether it should apply when the applicant does not give evidence. That raises another issue, we say, calling for the intervention of this Court in respect of such a direction.

KIRBY J: Would we not save up that issue, which I can understand has some importance, for a case where there was a real risk of miscarriage of justice? The matter that I have in my mind is that palm print of your client which was found on the withdrawal slip. That is pretty devastating evidence, I would have thought.

MR BELLANTO: Well, your Honour, not in the context of him having access to those documents. I mean, people keep withdrawal slips - - -

KIRBY J: I can see the argument.

MR BELLANTO: The real problem with the evidence below is the involvement, on Ms Hwang’s version, of the applicant in the disposal of the bodies. That is really why we raise our second point in relation to the fresh evidence going to her credibility and reliability as a witness, and that is really the foundation for arguing that the applicant was denied a fair hearing, because that evidence could not be advanced in cross-examination of that witness. So the two points go hand in hand, in a sense, and that is why we have the evidence in support of the fresh evidence contained in the affidavits in the supplementary application book.

KIRBY J: What is your answer to the Crown’s suggestion that that second argument, as you have called it, was fully explored at the trial, that is to say that questions were put to the witness as to her psychiatric condition?

MR BELLANTO: The difficulty with that is that it was only a very piecemeal cross-examination, based upon what was believed to be her condition at the time. That really only just dipped the toe in the water in relation to the full content of what was wrong with her. When one gets the material back, with some difficulty, from Korea, we then find that she has schizophrenia, we find that she has a certain attitude to all men, we find that she has lied as to the time she was hospitalised – a raft of things, which really go to her credibility, which the applicant was denied the opportunity to advance in cross-examination.

Now, obviously, in most cases, once the case is over, it is over. The battle lines are drawn prior to trial and one knows where the ambit of cross-examination is. But in this particular case, it is somewhat unusual, particularly in the light of the steps that had to be taken to obtain the evidence in the first place. It is not only going to a peripheral question, it goes to the very crux of her evidence, and then her evidence is then linked to the disposal of the body question and whether she, as was suggested, was the most likely perpetrator and then implicated the accused for her own reasons. That is how ground 2 and ground 1 link up.

So the submissions in relation to ground 1 are set out at page 281 of the application book and I certainly will not read what is contained therein, but one of the points that we raise in paragraph 26 is whether your Honour the presiding Judge Justice McHugh’s decision in Gilbert is a matter for general application in respect of your Honour’s reference to the confession and avoidance issue and whether such a hypothesis should be extended beyond that. Of course, the reference to Gilbert is contained in the application book at page 282, line 45, paragraph 27.

I have made available, if your Honours wish to read it, the judgment delivered by Justice Sperling on this question in ground 1. Perhaps I should hand that up.

McHUGH J: Thank you.

MR BELLANTO: His Honour refers to Pemble. It is a very short judgment.

KIRBY J: Where is the point of error?

MR BELLANTO: Well, the point of error is that his Honour refused to give the direction sought following debate.

McHUGH J: The problem was that there was just no evidence at all as to what happened, and there were many other scenarios that you could have speculated about. I mean, this case was not like Pemble, where the accused made a statement to the police and also, I think, gave evidence. It was not like Ross, where you had much the same situation. Your client stood mute. It was just sheer speculation as to what could have happened.

MR BELLANTO: Your Honour, that has to be viewed in the context of how the point arose in the first place. His Honour raised it and - - -

McHUGH J: The only possible point that was open on the evidence was the one you ran at the trial, that if you did not do it, she must have done it. There was evidence that you could rely on to support that. She was around there, there was evidence that she was seen dragging two suitcases, there was evidence that somebody else wanted an extension of the car lease. But this other theory that your client went there and suddenly discovered that they were dead and thought that he might be guilty of it – it is just sheer speculation.

MR BELLANTO: Well, it gains prominence when one takes into account the fresh evidence and the available hypotheses on those facts.

McHUGH J: How does the fresh evidence help? All it would do would suggest that she did it, and that was your case – that she did it.

MR BELLANTO: Yes, it was.

McHUGH J: It does not help that they arrive and she is dead. Your client is there and she is dead and the children are dead, and he thinks he is blamed. That is what the trial judge suggested. There was not a scrap of evidence to support it. It was just sheer speculation, just grabbed out of the air, and the judge himself realised that at the finish. That is why he said at the finish of his judgment, “With the benefit of hindsight, it would have been better if I had not raised the matter at all and I regret the concern which I may have caused”.

MR BELLANTO: Yes. Well, the difficulty is that his Honour did raise it, and he must have raised it for a reason. Then it was put to counsel and debated, and counsel embraced it as a possible scenario. I mean, counsel could not have raised it, because it was not part of the defence strategy.

McHUGH J: Counsel had to deal with the conduct in the 10 days, the lies about him going to Brisbane and that he was joining them.

MR BELLANTO: Your Honour, they are our submissions.

McHUGH J: Yes, thank you. Yes, Mr Smith.

MR SMITH: If the Court pleases. So far as the first ground is concerned, we would submit that the jury has had ventilated before it the allegation that either she did it or some loan shark enforcers did it, and they have rejected that. To then suggest that someone who, if they are not satisfied - - -

McHUGH J: I know that Justice Shaw relied on the jury’s verdict, but I do not think that is really an answer to the applicant’s point on this case. If there was a deficiency in the summing up, then it may have led to the verdict that was returned. So you have to deal with the point on its merits.

MR SMITH: Well, we submit there is no deficiency. The fact that his Honour has talked about it to counsel at some stage during his summing up, but then so firmly rejected it, having heard the Crown, particularly, opposing it on the basis that it may have an unfair consequence to both the Crown and the defence. As your Honour yourself said, there was no material really supporting that hypothesis in any event. It is not as if there were eyewitnesses to hear two women in the flat or anything of that sort - - -

McHUGH J: Or a retracted confession.

MR SMITH: No, nothing of that sort, and again the jury would take into account the fact that this woman had come to Australia to give evidence on something. If she was a murderess, the likelihood of her co-operating and subjecting herself to cross-examination was very light.

McHUGH J: But that is not an answer to the first point that Mr Bellanto raised.

MR SMITH: Yes, our main answer is basically what your Honour said, that there is just no support for it, and Pemble itself, we submit, cannot be extended that far. Indeed, Pemble has had somewhat of a controversial history, as I recall it. It is not always seen as helpful, but nevertheless it is generally - - -

McHUGH J: It is a case that would have caused some trouble for an earlier generation of lawyers, who used to like to fight murder trials on murder or nothing, and did not like manslaughter being left - - -

MR SMITH: Yes.

McHUGH J: - - - because it gave the jury an easy way out.

MR SMITH: But it is generally restricted to situations where, say, there could have been a ground of intoxication or provocation put but was not, because it did not suit the tactical interests of the accused. In this case, it did not suit their tactical interests in running their defence generally. Tactically, they grabbed hold of it when his Honour started talking about it, and the more they thought about it they might have thought, well, this is another possibility, because that was in the face of a very strong circumstantial case, leaving aside Ms Hwang’s evidence.

There was a great deal of evidence there. As your Honour has said, the lies that he has told about her going up to Brisbane, the fact that he was going to meet her, yet virtually straightaway he gets on a plane with a one-way ticket to Korea and does not come back. I mean, these are factors that the jury would have taken into account. For his Honour to leave this hypothesis to the jury, they would be more likely to say, “Well, what a farce that this is being put, when all the evidence points against her being the murderer. It points towards him being the murderer, and we have heard her and we do not accept that she is the murderer”.

I submit in those situations, unless there was some weakness in her version of events that really gave some legs to it – but they did not even run this as their only point. They said it could have been the loan shark enforcers. So the defence were not seeking to put this as their only possibility. They were looking around for excuses, as it were, and his Honour, during his consideration, probably without thinking it right through, because once he did think it right through he withdrew it. We submit it was quite proper that he did not put that point of view, because the reason he gave – I think it is at application book page 258, paragraph 51, down the bottom:

his Honour formed the view that:

There is a serious risk that in taking the course I proposed for discussion, there could be unfair implications either for the Crown or for the accused, and perhaps both in different ways.

We would submit that that was a reasonable conclusion for his Honour to reach in the circumstances, because it would not be fair to the Crown in the sense that there was no material to justify such a hypothesis being put and, as against the accused, it could backfire in the sense that they would say, “That has to be the last straw, to be suggesting that this hypothesis is put and she is the murderer and she has done all these things”. They would have had to accept her evidence about what happened with the bodies and maybe they would have had to speculate that somebody else was involved, or it was the accused involved. All those aspects could well cause them, if they did not accept the defence case in any event, to become even more against it, when such a fanciful proposition is put to them. So far as the second point, the so-called “fresh evidence”, your Honours, those issues - - -

KIRBY J: You question whether it was fresh by the standards of that test.

MR SMITH: We do. Well, we say that it would not get him off anyhow. This is not like - - -

KIRBY J: In any case, you say that the matter was open sufficiently at the trial and it was before the jury.

MR SMITH: It was, that is right, your Honour. We would say that you cannot conduct a Royal Commission, basically, into every witness after a trial to see whether there was something else you could have said about particular witnesses and all that sort of thing. The defence were well represented. They had strong cross-examination of the witness, apparently, and those issues were raised.

KIRBY J: What do you say about Justice Shaw’s participation, although in page 1 of the supplementary book it is clear that there was before the Court of Criminal Appeal – it might have been prudent if the matter had been raised. I think the Crown has its own responsibilities in this sort of matter.

MR SMITH: Yes. I am not sure that that was before the Court of Criminal Appeal - - -

KIRBY J: Page 1 of the supplementary application book, and you make the point that it is clear that it was signed by - - -

MR SMITH: It was an exhibit in the trial. Whether it was, in any event, looked at carefully, it should have been, obviously. We submit that he was the Attorney-General some years before – well before this matter. As your Honour said earlier, there are many, many documents that come before him and, in any event, is the act of signing an indemnity something that the reasonable bystander, or whatever the current - - -

KIRBY J: The case is put on the basis that the alternative hypothesis is the person to whom the indemnity was given and that documentation and other material would have been put before her suggesting her want of major part in the criminality to warrant the giving of the indemnity and that, therefore, he would have had to form a view, and did form a view, that led to the giving of the certificate, and that although barristers can consider this, that the actual applicant sitting there in the cell is disquieted by the fact that one of the judges was not completely unconnected with the case.

MR SMITH: Yes, I understand that that was his concern or that is the evidence before this Court.

KIRBY J: What is your answer?

MR SMITH: My answer is, it is not really his thought, but it is the objective bystander, in a sense, the educated bystander, and the other answer is that he has senior counsel advising him who, for tactical reasons, do not wish to pursue this as a ground or to interfere in the deliberations of the court by going back and further arguing. The evidence is clear on Mr Meakin’s statements that they made a decision, they thought that Justice Shaw was more favourable to them than any of the other judges - - -

KIRBY J: Yes, I read that.

MR SMITH: Well, we would submit that, again, that is a matter that he has accepted. He has not done anything then. Now, admittedly, he is in gaol, he is in a strange country. He did have the capacity to find out some of the information, but he has accepted that advice at that time. Then, when it does not turn out so well for him, he has then used it. Of course, the other question is this ground has not been argued before the Court of Criminal Appeal. We rather reluctantly have raised problems with that. There may be remedies that the Court could use to rectify that, such as remit back - - -

KIRBY J: Well, I saw that, but I know views may differ on this, but I do not see how we could remit back without setting aside orders.

MR SMITH: Yes, I think that is right, and I think the problem is - - -

KIRBY J: You cannot set aside orders until there is an allowing of the appeal.

MR SMITH: That is right.

KIRBY J: At least, that is my preliminary view on the matter.

MR SMITH: Well, there is the other problem, that they have perfected their orders in any event, and can an issue like this, about which there is no, say, mischief – there is no suggestion that the Justice Shaw has acted in a mischievous way, that he has shown a - - -

KIRBY J: No, that is not suggested by the applicant.

MR SMITH: No, it is not, but the exceptions to the rule referred to in Grierson that has been developed in Postiglione and other cases seem to suggest that it has to be a pretty exceptional piece of procedural unfairness. We would submit if the fact of the Attorney-General having signed the indemnity three years before and having presided over the appeal and actually delivering the judgment, when you look at Ebner, where the judge was actually a shareholder in the bank who was a party to the litigation, there were certain tests proposed there that have not been, we submit, satisfied here. They have not been able to show that there is a link between the factor that he is the man who signed the indemnity and his decision, or even that would raise a reasonable suspicion.

KIRBY J: I see the power of all this, but I do think the Crown really ought to be vigilant to matters of this kind.

MR SMITH: Yes, I agree with that.

McHUGH J: It may be that the Court of Criminal Appeal in any event has jurisdiction to reopen even a perfected order. In a case called Saxon (1998) 101 A Crim R 71, there were divisions of opinion. Justice Wood seemed to think that it was open; Justice Sperling thought that the jurisdiction could only be exercised when the breach of natural justice nullified the whole proceedings. Then there is the unreported decision of Frugtniet, which was given in June 1998, and there was a division. Both Justice Young and Justice Sperling thought that the jurisdiction might be applicable.

MR SMITH: There is a recent decision of Reardon [2004] NSWCCA 197 of 23 June 2004, which, while they discuss those cases, effectively concludes that whether there is jurisdiction to reopen grounds of appeal not dealt with or procedural fairness denied, and they seem to be saying you should not reopen them. So that it is not an area where there are clear decisions on this matter.

McHUGH J: No.

MR SMITH: In any event, we would submit there would have to be a much more blatant offence, in a sense – a judge that really appears to be coming down into the arena or doing something that - - -

McHUGH J: Well, one thing that counsel for applicants frequently overlook in this question of bias on the part of judges is that there is a second limb. You not only have to show that the judge had some interest in the proceedings, but you have to show that the judge could not bring an impartial mind to the - - -

MR SMITH: Yes, that is right.

McHUGH J: And that second limb is usually a formidable barrier, particularly in a case like this, where three years - - -

MR SMITH: We would submit in this case they have gone nowhere near establishing that. Those are our submissions, if your Honour pleases.

McHUGH J: Yes. Yes, Mr Bellanto.

MR BELLANTO: Your Honour, the court below referred to the indemnity at application book 45 and 46 – in fact, quoted from the indemnity. Then can I refer to a reported decision before your Honours that has been given in the bundle of cases, the case of Spedley. Could I refer the Court to the judgment of your Honour Justice Kirby at pages 418 to 419, comments which we embrace as to the need to maintain these particular standards in bias arguments. I will not read it, of course, but I refer your Honours to the passage under the heading “The rule of stringency”.

McHUGH J: Well, I am familiar with it. I am sure Justice Kirby is, and I imagine Justice Heydon is. Yes, thank you, Mr Bellanto.

The first matter argued in support of special leave to appeal in this application was the fact that Justice Shaw, who gave the judgment of the Court of Criminal Appeal, was disqualified from participating in that Court because earlier he had, as Attorney-General, granted a certificate of indemnity under the Criminal Procedure Act 1986 (NSW) section 13 to Ms So Young Hwang, who was called “Demi” in the evidence. The applicant contends that Ms Hwang was the person responsible for the homicide in question. The point was not raised below, although it was known to counsel for the parties.

In our view, there is no merit in the point. As Attorney-General, Justice Shaw would have signed countless documents. The risk of his Honour being influenced or even remembering his role in the indemnity is slight. There is no appearance of partiality, nor is there any miscarriage of justice. That ground fails.

The other points raised concern the application of the decision of this Court in Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107, particularly at pages 117 to 118 of the judgment of Chief Justice Barwick, which concerns the duty of the trial judge to instruct the jury on a different hypothesis consistent with the innocence of the applicant, even in a case where the applicant has not put forward the hypothesis, or even, as in Pemble, has abandoned the hypothesis.

However, we are not convinced that the trial judge erred in the course he took or that it caused a miscarriage in the way that the trial unfolded. Nor is there any warrant to consider that the refusal of the Court of Criminal Appeal to admit fresh evidence has resulted in any miscarriage of justice.

Accordingly, the application for special leave to appeal is refused.

AT 2.38 PM THE MATTER WAS CONCLUDED