Jang v Regina

Judgment 1BEAZLEY JA: On 18 October 1999, the applicant pleaded guilty to the murders of In Ja Yoo and Min Kyoung Kang on 8 April 1998. Ms Yoo was the applicant's wife and Ms Kang was her daughter. On 3 December 1999, Bell J imposed a head sentence of 24 years imprisonment with a non-parole period of 18 years in respect of each count of murder. Her Honour ordered that the sentences be served wholly concurrently. 2The sentence hearing proceeded on the basis of a statement of agreed facts, together with the tender of witness statements and a number of exhibits, including the knife used in the murder and photographs of the murder scene. On the applicant's behalf, there were a number of references, reports of the psychologist, Dr Christopher Canaris and a report of a clinical social worker. The applicant was represented by counsel both at the time he pleaded guilty and on the sentence hearing. 3On 19 October 2011, the applicant filed an application for leave to appeal against the severity of sentence. The application is out of time. A notice of intention to apply for leave to appeal against sentence is required to be filed within 28 days of a sentence being imposed: Criminal Appeal Act 1912, s 10(1)(a). A notice of application for leave to appeal must then be filed within 6 months of the filing of the notice of intention: Criminal Appeal Rules, cls 3A(1)(b) and 3B(1)(a). 4The Court has a discretion to extend the time within which a notice of intention to apply for leave to appeal is to be filed: Criminal Appeal Act, s 10(1)(b). The discretion is not circumscribed by the terms of the section, but must be exercised judicially. However, it has been held that where there has been a significant delay, exceptional circumstances will need to be established before an extension of time will be granted: see R v Lawrence (1980) 1 NSWLR 122 at 148. Underlying this principle is the public interest in the avoidance of delay and the finality of litigation. This public interest applies in the case of sentencing appeals, as it does in litigation generally: see Edwards v R [2009] NSWCCA 199 at [13] per Johnson J (Allsop P and Kirby J agreeing). 5The applicant's explanation for the delay is to be discerned from the contents of his grounds of appeal, in which he stated that approximately two years ago, he had the opportunity to look at his criminal records. He stated that from the police investigation report and the statements of witnesses, he "found that the investigator had made up false reports" so as to label the applicant a "cruel serious criminal". The applicant then particularised five matters of which he makes complaint. I will return to those matters shortly. In addition to that explanation and in response to the Crown Prosecutor's oral submissions to the Court in respect of delay, the applicant submitted that another reason for the delay was his complete lack of English. 6The Crown opposes the Court granting an extension of time. The Crown submitted that there was no explanation for the delay of 10 years for the applicant to look at his criminal record and no explanation as to why it then took two years before he filed his notice of intention to appeal. The Crown further submitted that the matters raised in the applicant's proposed notice of appeal were without merit. 7The background facts to the murders may be stated briefly. The applicant, who was born in October 1942, was the husband of the deceased Ms Yoo. Ms Yoo's daughter, Ms Kang, was aged 27 years at the time of the murders. The applicant and Ms Yoo married in Korea in 1995. At that time, Ms Yoo had permanent residency in Australia. She sponsored the applicant in his application for permanent residency in Australia. However, she later refused to sign the forms necessary for him to complete the final stages of his application for permanent residency. Ms Yoo's refusal to support the final stages of the application was, in effect, the trigger for the murders. The applicant had made a number of threats relating to the signing of the immigration forms to Ms Yoo over the preceding months. He threatened to harm both her and her family. The threats included statements on different occasions that he would kill Ms Yoo and her family if she did not comply with his request to complete the immigration formalities necessary for him to obtain permanent residency. 8On the day before the murders, Ms Yoo sought an Apprehended Violence Order against the applicant. The application was returnable on 9 April 1998. On 8 April 1998, the applicant telephoned Ms Yoo and she said she did not wish to see him. Notwithstanding that, the applicant went to Ms Yoo's home unit. He had a kitchen knife concealed in the waistband of his shorts at the time. The applicant and Ms Yoo had a conversation relating to the immigration issue. Ms Sung Hee Jun, a Korean student who was a friend of Ms Kang's and had lived with her family since 1997 overheard part of this conversation. 9After a short pause following this conversation, Ms Jun heard Ms Kang scream. She saw the applicant standing behind the deceased Ms Yoo with both hands around her neck. She saw Ms Kang move towards the applicant, taking hold of his right arm. Ms Jun said that she saw the applicant holding a knife in his right hand and described the knife as being about 30 cm long with a 20 cm blade. She saw the applicant move his right hand in a cutting motion across Ms Yoo's neck. She saw a second and then a third cutting motion across Ms Yoo's neck. She said that Ms Yoo was moaning and she saw "blood coming from her neck". In the midst of this, the applicant had pushed Ms Kang away from him and she had fallen to the floor. Between the second and the third cut to Ms Yoo's neck, Ms Kang had got up from the floor and had taken hold of the applicant's right arm. Ms Jun described how the applicant stabbed Ms Yoo in the stomach and upper chest. She said that the applicant then took hold of both Ms Yoo and Ms Kang at the same time, holding them by their shirt collars. She said the applicant said to Ms Kang, "You too are a bad kid". As he said these words, the applicant cut Ms Kang's throat "in a slow slicing motion". She saw the applicant stab Ms Yoo and Ms Kang a number of times in the chest. The applicant cut the telephone cord and threatened Ms Jun with the knife. The applicant told Ms Jun that she had to go with him. Ms Jun, however, was able to run from the unit and she hid in the front yard of a nearby house for about half an hour and then went to a public telephone where she rang 000. 10The applicant did not deny the murders. Indeed, he surrendered himself to the police later that day. However, on the present application for leave to appeal against sentence, he stated that he "once drew a knife on the neck" of Ms Yoo and stabbed Ms Kang once "on the waist". He said that Ms Kang then "rushed to me to snatch the knife that I was holding, and she had herself stabbed on her breast by the knife". The applicant said that the stabbing for which he was responsible occurred over about two minutes, whereas on the account given by Ms Jun in her witness statement, the stabbing must have taken between half an hour and an hour. He also said he was only in Ms Yoo's home unit for two minutes. 11The five matters particularised by the applicant in support of his appeal against sentence were as follows: (1) According to the police investigation report, the applicant was stated to be an unemployed person. The applicant complained that by recording him as unemployed, the investigator was able to brand him as a "violent gangster or morally serious offender". He said that this was a false picture, because he had been "living diligently by doing cleaning business and running a badminton sports centre". (2) The applicant complained of the "fabricated and exaggerated" reports of the witnesses. He said that the reports were inaccurate and portrayed him as "a cruel evil person". (3) The applicant contended that the coronial report showed the statements of the witnesses were false, as it recorded: (a) that Ms Yoo "had a knife mark on her neck with a slightly scratched trace" and; (b) that Ms Kang "had knife marks on her waist and breast respectively". (4) The applicant complained that the police had failed to record the fact that he had surrendered himself to the police. (5) The applicant complained that the witness statements were fabricated so as to depict him at the hearing as "a serious criminal with cruel method". 12The applicant submitted the reason for the fabrication of the false evidence was to make it appear at the hearing that he "could not but commit the crime because of [his] circumstance of unemployment". He submitted that this affected the sentencing judge's determination and the sentence imposed was too heavy. 13The police investigation report to which the applicant referred in the first particular does not appear to be in evidence. In any event, her Honour's remarks on sentence, at [26], recorded that the applicant "came to Australia in 1987 and supported himself variously as a cleaner and as a badminton coach". Her Honour also referred to the reports of Dr Canaris. Dr Canaris had taken a history of the applicant's life in Australia, including that for the 11 years he had been in this country and up until the time of the murders, "he had worked hard and diligently to support himself". 14The second and third complaints can be dealt with together. The autopsy report in respect of Ms Yoo, prepared pursuant to the Coroners Act 1980, recorded three wounds to the neck and six significant stab wounds to the abdomen and chest and a wound in the right mid back. There was also a superficial wound on the distal phalanx of the right thumb. The autopsy report in respect of Ms Kang, also prepared pursuant to the Coroners Act, recorded two stab wounds to the neck and four "incised wounds" to the neck. In addition, there were eight stab wounds to the chest and abdomen, as well as a stab wound on the right upper arm. Other superficial injuries were recorded. 15In my opinion, contrary to the applicant's submission, the coroner's report supported the version of the witness Ms Jun. It would be a most incredible circumstance that victims of stabbing wounds to the neck could then inflict so many and such serious injuries to their own bodies, including one to the back in the case of Ms Yoo. In any event, the matter proceeded before the sentencing judge on the basis of agreed facts that were derived in substantial part from Ms Jun's statement. 16The fourth complaint, namely, the absence of any reference in the police records that he had surrendered himself to the police, can also be put to one side. The trial judge recorded, at [16] of her remarks on sentence, that the applicant surrendered to the police at St Mary's Police Station. Her Honour also recorded that he was fully cooperative with police in the subsequent investigation and made admissions in an ERISP, as well as having participated in a video recorded walk-through at the scene. 17The fifth complaint is effectively the same as the second complaint. Nothing additional needs to be said. 18In my opinion, there is absolutely no prospect that the applicant would be successful on any appeal against sentence. For that reason, as well as for the reason that the application is seriously out of time, I would not grant leave to extend time to file a notice of intention to appeal. It is appropriate to record that the applicant, who appeared for himself, with the assistance of an interpreter, presented his case to the Court politely and succinctly. The Court was also particularly assisted by the competence of the interpreter, Mr Park. 19The orders I propose are: (1) Refuse leave to extend time in which to file a notice of intention to appeal; (2) Dismiss the notice of intention to appeal. 20HARRISON J: I agree with Beazley JA. 21McCALLUM J: I agree with Beazley JA.