THE COURT: Mr You Jong Park has filed an application for leave to appeal against his conviction for an offence of aggravated sexual assault. The application is listed in the Court of Criminal Appeal on 10 February 2023.
On 29 November 2022, the Court heard a bail release application pursuant to s 61 of the Bail Act 2013 (NSW). At the conclusion of the hearing, it ordered that the application be refused. The following are the reasons for making that order.
[2]
The conviction
Mr Park was tried on an indictment with four counts alleging the following offences against the Crimes Act 1900 (NSW):
1. Aggravated sexual touching (s 61KD(1)(a).
2. Aggravated sexual intercourse without consent (s 61J(1)).
3. Sexual intercourse without consent (s 61I).
4. Aggravated sexual touching (s 61KD(1)(a).
The circumstance of aggravation in each count was that the complainant was under the authority of Mr Park in that she was an employee at his restaurant, referred to in the trial as "the chicken shop". The Crown relied upon alternatives in respect of Counts 1 and 4 of sexual touching (absent the circumstance of aggravation) and Count 3 was averred as an alternative to Count 2 (i.e. absent the same circumstance of aggravation). The alternative to Count 1 was referred to at the trial as "Count 1A".
The Crown succinctly summarised the nature of the case as follows: [1]
"The complainant, a 19-year-old Mongolian national, and the applicant were drinking together after work at an outside table. The complainant was heavily intoxicated. CCTV depicted her with her head in her hands and later vomiting. The applicant took her inside the restaurant and kissed her, touched her breast, pulled her pants down and had penile/vaginal sexual intercourse with her. It was the Crown case the complainant did not have the capacity to consent. The applicant's case was that the sexual acts were consensual."
The trial commenced on 2 February 2022 and the jury retired to consider its verdicts on 15 February 2022. It returned verdicts on 24 February 2022 of not guilty to Counts 1 and "1A" but guilty of Count 2. No verdict was required in respect of Count 3 and the jury were unable to agree upon a verdict for Count 4.
Mr Park was sentenced on 13 May 2022 to imprisonment for 2 years, 6 months with a non-parole period of 1 year, 3 months, dating from 20 April 2022. He is due to be released on parole when the non-parole period expires on 19 July 2023.
[3]
Requirement for "special or exceptional circumstances"
The Bail Act provides a constraint on a court in determining a release application where bail is sought pending an appeal to the Court of Criminal Appeal:
22 General limitation on court's power to release
(1) Despite anything to the contrary in this Act, a court is not to grant bail or dispense with bail for any of the following offences, unless it is established that special or exceptional circumstances exist that justify that bail decision -
(a) an offence for which an appeal is pending in the Court of Criminal Appeal against -
(i) a conviction on indictment, or
(ii) a sentence imposed on conviction on indictment, ….
If "special or exceptional circumstances" are established, it remains for the court to consider any bail concerns. Bail must be refused if there is an "unacceptable risk": see ss 17(2), 19(1) and 22(4) of the Act. Bail concerns are assessed by a consideration of matters listed in s 18 of the Act.
The requirement for "special or exceptional circumstances" has been described as a "significant hurdle": Hamill J (Bathurst CJ and Bell P agreeing) in HT v Director of Public Prosecutions (NSW) [2019] NSWCCA 141 at [24]. His Honour (with the agreement of Simpson J (as her Honour then was) and Davies J observed in El-Hilli and Melville v R [2015] NSWCCA 146 at [29] that special or exceptional circumstances may be found in a combination of factors and, although it is not possible to determine in advance what they may be, two that frequently arise are the merit of the appeal and the possibility that the applicant will have served their sentence, or non-parole period, wholly or substantially before the appeal is determined.
The High Court referred to some general considerations that apply to a question of granting bail pending the hearing of an appeal in United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60 at [39]-[40] (Gleeson CJ, McHugh and Gummow JJ):
"[39] In determining whether to stay an order of imprisonment and give bail to the applicant or appellant, the court must consider not only the position of the applicant or appellant but also the position of the Crown. To stay an order of imprisonment before deciding the appeal is a serious interference with the due administration of criminal justice. As Thomas J pointed out in Ex parte Maher, to allow bail pending the hearing of an appeal after a person has been convicted and imprisoned:
makes the conviction appear contingent until confirmed;
places the court in the invidious position of having to return to prison a person whose circumstances may have changed dramatically during the period of liberty on bail;
encourages unmeritorious appeals;
undermines respect for the judicial system in having a ''recently sentenced man walking free'';
undermines the public interest in having convicted persons serve their sentences as soon as is practicable.
[40] Consequently, the doctrine of this Court is that in a criminal case an order granting bail will only be made if there are exceptional circumstances." [Footnotes omitted]
In the present case, Mr Park contended there was a combination of factors that established special or exceptional circumstances:
1. The merit of his case on appeal.
2. The time he will have spent in custody.
3. Favourable subjective matters including matters pertaining to his family and business.
[4]
Merit of the case on appeal
There can be limitations on this Court's ability to assess the merit of an appeal pending before it. They include that the Court is not hearing the appeal itself and is usually asked to make a forecast of merit based upon incomplete materials.
In this case the Court was provided with the proposed grounds of appeal and the applicant's written submissions as well as the transcript of the trial judge's summing up. It was not provided with the transcript of the evidence and addresses, nor the exhibits. The written submissions by the Crown on the appeal were also unavailable.
The Bail Act provides in s 71 that bail applications are to be dealt with as soon as reasonably practicable. Generally speaking it is usually not possible to provide an early hearing date in this Court that also allows sufficient hearing time for a comprehensive analysis of the prospects of an appeal succeeding. That is particularly the case with appeals against conviction where the materials are sometimes considerably more voluminous.
Because consideration of an appeal can usually not be as thorough as it might be on the appeal itself, the Court has said in a number of cases that it should confine itself to reaching only a broad overall view of an applicant's prospects of success: Obeid v R (No 2) [2016] NSWCCA 321 at [17]; R v Ambury [2017] NSWCCA 115 at [36]. In Gould v R (Cth) [2021] NSWCCA 27 at [35], the Court was considering bail pending the hearing of a conviction appeal in which two grounds were to be argued. It said:
"[35] … Since it is neither possible nor desirable in the context of the release application to come to any considered view as to the merits of the proposed appeal, we have proceeded on the basis that the application is an arguable one, as the applicant submits. Equally no doubt, there is an argument that can be made against the application. Consideration of the merits of those arguments should be left to the Court constituted to hear the application."
The Court proceeded in the present case in the manner described above: by not attempting to form or express a concluded view of Mr Park's prospects of success on appeal but confining attention to whether his grounds appeared arguable.
[5]
The grounds of appeal
Mr Park proposes to rely upon three grounds of appeal. He requires leave in respect of each of them: under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) for the first and under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2020 (NSW) in respect of the second and third. The grounds are:
1. The verdict of guilty is unreasonable and cannot be supported having regard to the evidence, and in particular the verdicts of not guilty on counts 1 and 1A.
2. The learned trial judge erred in not giving a full direction in terms of Liberato v The Queen (1985) 159 CLR 507.
3. The learned trial judge erred in directing the jury that "any delay in complaint of itself is not relevant to an issue of credibility".
[6]
Ground 1
Mr Park proposes to argue that two matters establish that the verdict of guilty on Count 2 is unreasonable or unsupported by the evidence. First, there is the possibility of confusion about which verdict was being delivered in relation to which count. Second, there is inconsistency between the verdict of guilty on Count 2 and the verdicts of not guilty on Counts 1 and 1A and the inability of the jury to agree on Count 4.
The written submissions on the release application also indicate there will be argument as to the alleged weaknesses in the Crown case.
As to the possibility of confusion, Mr Park's written submissions on the appeal refer to questions and discussions on the day preceding the day the verdicts were returned in which there does appear to have been some confusion. But the transcript does not indicate any sign of confusion when the verdicts were returned. Verdicts were returned sequentially for Counts 1, 1A and 2. The trial judge then indicated that no verdict was required on Count 3, given it was an alternative to Count 2 upon which the verdict was guilty. The jury were discharged from further deliberation on Count 4 because of their inability to reach a unanimous or majority verdict.
We note the common practice upon taking verdicts from a jury that the question is posed: "So say your foreperson, so say you all?" (It requires some modification when a jury has been directed that a majority verdict may be returned.) Although that is usually not transcribed by the court reporter, there is no indication in the transcript of any dissent by any jury member as to what the foreperson had announced as the verdicts.
The inconsistency argument is based upon the acts of sexual touching (kissing the complainant and touching her breast) allegedly occurring immediately before, or before and during the act of penile/vaginal intercourse.
The Crown suggested that an explanation for the different outcomes might be that the judge gave detailed directions to the jury on knowledge as to lack of consent, recklessness as to consent and no reasonable grounds as to belief in consent as to Counts 2 and 3 but did not do so in relation to Counts 1 and 4. It also suggested that the jury may have distinguished between Counts 1 and 2 on the basis of the complainant's evidence as to her level of consciousness. It might also have distinguished between the two counts on the basis of Mr Park's knowledge of the complainant not consenting, doubting whether this was established for the kissing but having no reasonable doubt in respect of the intercourse which was alleged to have occurred when she was unconscious.
The Crown countered the assertion of weakness of the case by referring to CCTV evidence showing the complainant drinking, having her head in her hands whilst sitting at a table, and then vomiting, all being relevant to the issues of consent, and knowledge of a lack of consent.
Arguments such as these as to inconsistency of verdicts and an asserted weakness of the Crown case are such that the Court could not form any firm view as to Mr Park's prospects of success on this ground. Both parties appear to have arguable points that can only be resolved by the Court considering all of the relevant evidence and transcript.
[7]
Ground 2
It is proposed to argue that the trial judge did not provide the jury with a complete direction in accordance with Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66. She omitted to direct that if the jury did not accept the accused's evidence, but considered that it might be true, the jury must acquit. Mr Park contends that there was a miscarriage of justice in that he has lost a chance of acquittal fairly open to him.
The Crown accepted that the judge did not give a direction in the express terms suggested in cases which have considered the so-called Liberato direction such as Da Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48. However, it submitted that the judge directed the jury sufficiently to convey the essence of what was necessary. That may well be correct, given what the judge said when directing as to the onus and standard of proof (especially at SU 4.2) and later when purporting to give a discrete direction in accordance with Liberato (at SU 50-1). However, in the absence of full argument on the subject the Court at this stage should not express a concluded view.
[8]
Ground 3
Immediately after the judge had directed the jury as to the evidence of complaint, the Trial Advocate for the Crown suggested her Honour had failed to give a direction in accordance with s 294(2)(c) of the Criminal Procedure Act 1986 (NSW) that "a delay in complaining is not relevant to the victim's credibility". The judge acknowledged that she had not and indicated she would. She asked Mr Park's counsel if there was "any issue with that" and he replied in the negative. [2]
The judge then purported to give the jury a direction pursuant to s 294(2)(c) by saying:
"Just to finish off something I said before lunch so far as complaint and delayed complaint is concerned. You might recall that I said to you that a delay in complaint might arise in both truthful and untruthful accounts and therefore because that is the case, any delay in complaint of itself is not relevant to an issue of credibility."
Mr Park's third ground of appeal is that this direction was erroneous because s 294(2)(c) (at the time of the trial) was in fact in these terms: [3]
"In circumstances to which this section applies, the Judge … must not warn the jury that delay in complaining is relevant to the victim's credibility unless there is sufficient evidence to justify such a warning."
The Crown in this Court accepted that the direction "may appear problematic". However, the issue on the appeal will likely be whether it had the effect of undermining an aspect of the defence case and led to a miscarriage of justice.
The Crown forecast that it will argue that there was no miscarriage arising from the direction and, in any event, the Crown would rely on the application of the proviso in s 6(1) of the Criminal Appeal Act that no substantial miscarriage of justice actually occurred, having regard to the strength of the Crown case.
The Crown's approach implies a concession that there was a misdirection. However, whether that might lead to success on the appeal is another matter and would require an examination of the evidence and an assessment of the strength of the prosecution case; something that this Court is presently unable to carry out.
[9]
Rule 4.15
As previously noted, the applicant requires a grant of leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules to rely upon Grounds 2 and 3 because of the absence of any objection being taken to the directions he now seeks to impugn. He will need to establish both that error(s) occurred and that it (they) gave rise to a miscarriage of justice. As just mentioned, the Court is in no position to make an assessment of this in the absence of all that will be available to the Court when hearing the application for leave to appeal.
[10]
Time spent in custody
The applicant will have served 9 months, 22 days of the 15-month non-parole period when the application is heard on 10 February 2023. This is a relevant factor in the assessment of whether special or exceptional circumstances have been shown: Fantakis v Director of Public Prosecutions [2021] NSWCCA 271 at [12] (Beech-Jones CJ at CL).
The period between the hearing of the bail release application and the hearing of the application for leave to appeal is also a relevant consideration; the shorter the period the less utility there might be in granting the application. Here, the period is in the order of 2.5 months.
As the Crown pointed out in its written submissions, upon the hearing of an appeal (or application for leave to appeal) this Court has the capacity to act swiftly where necessary, including making orders immediately, or soon after, a hearing where necessary to prevent injustice: Gould v R (Cth) at [38]-[39].
[11]
Favourable subjective s 18 considerations
Mr Park emphasised his prior good character and lack of previous convictions. He had been on bail from almost the time of his arrest through until a detention application was granted following the trial and there had been no breach.
Evidence was provided as to the difficulties his wife had experienced since Mr Park went into custody. Their baby has been taken into the care of her parents in South Korea. The parents are not well-off financially and her father is ill. She has had to take over the management of the restaurant but says she lacks the skills. She has struggled to pay the rent and finds working 7 days a week tiring both physically and emotionally.
[12]
Conclusions
The merits of the proposed appeal against conviction were considered as best that could be done, given the limited materials, time and facility for assessment. There is scope for argument in the applicant's favour, but no firm conclusion could be formed that Mr Park's prospects of success are "strong". As was the case in Obeid v R (No 2) at [18], it is a significant matter that two of the proposed grounds of appeal concern points that, if meritorious, should have been raised with the trial judge and there is no apparent explanation as to why they were not.
The time Mr Park will have spent in custody is a significant feature but not on its own sufficient to amount to a special or exceptional circumstance. The same applies to the subjective matters just mentioned, particularly given that it will often be the case that there will be hardship resulting from incarceration pending an appeal.
Mr Park bore the onus of persuading the Court that there were special or exceptional circumstances warranting a consideration of his release on bail. None of the three matters on their own, or in their combined force, were sufficient to cross this threshold. Accordingly, the Court refused the application.
[13]
Endnotes
Crown written submissions [4]
Summing up, p42.10
The provision was amended by the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW), with effect from 1 June 2022, by replacing the word "warn" with "direct".
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Decision last updated: 09 December 2022