Regina v Jang

1 HER HONOUR: On Monday 18 October 1999 the prisoner, Soo Duck Jang, was arraigned before me on an indictment charging him with two counts of murder. He pleaded not guilty in respect of each count and a jury was duly empanelled. The matter was stood over to Tuesday 19 October to permit Mr Dhanji to confer with the prisoner. Mr Dhanji had come into the matter late and had difficulties arranging for a conference with the prisoner who is in custody. 2 At the commencement of proceedings on 19 October 1999 the accused sought to be re-arraigned. He entered pleas of guilty in respect of each count. I accepted those pleas pursuant to s 399A of the Crimes Act 1900. The jury was discharged without giving a verdict and convictions were recorded upon the pleas of guilty. I embarked on hearing submissions concerning the admissibility of evidence which the Crown seeks to lead at the sentence hearing. 3 On 28 September 1999 the Crown served a Notice pursuant to s 67 of the Evidence Act (NSW) 1995 on the prisoner's former solicitors. The Notice particularised paragraphs in the statements of fourteen witnesses setting out previous representations made by the deceased, In Ja Yoo and Min Kyoung Kang, which the Crown advised it proposed to lead pursuant to the provisions of s 65(2)(b) and (c) of the Evidence Act. 4 At the commencement of the sentence hearing the Crown Prosecutor stated that he did not intend to lead all the material the subject of the s 67 Notice. However, it was proposed to lead evidence to establish that on occasions prior to 8 April 1998 In Ja Yoo had complained that the prisoner, in connection with the progress of his immigration application, had threatened to kill her and her children. 5 Mr Dhanji objected to the admission of material of this character. He invited me to make a direction pursuant to s 4(2) of the Evidence Act that the law of evidence in relation to the proof of representations made by In Ja Yoo and Min Kyoung Kang apply in the sentence proceedings. 6 Briefly, the Crown case is that the prisoner went to the home of his estranged wife, In Ja Yoo, on 8 April 1998 to apply pressure to her in connection with an application he then had pending with the Department of Immigration. It was necessary for In Ja Yoo to sign a document. The prisoner armed himself with a knife before going to the premises on this occasion. He quarrelled with In Ja Yoo inside the premises and repeatedly stabbed her and her adult daughter, Min Kyoung Kang. 7 The Crown contends that I should sentence the prisoner upon the basis that these killings were not the result of an isolated outburst of rage but rather that the prisoner had been insistently pressing demands concerning his immigration application and placing In Ja Yoo in fear in connection with the same. 8 The background of threats made by the prisoner to the deceased, In Ja Yoo, is not admitted by the prisoner. I consider this material is relevant and that, if it is admitted, it will be significant in determining the sentence to be imposed upon the prisoner. I direct that in relation to the whole of the material the subject of the s 67 Notice of 28 September 1999 upon which the Crown now relies the law of evidence applies. 9 The Crown seeks to lead evidence contained in paragraph 7 of the statement of Sung Hee Jun, dated 8 April 1998, as to representations made by In Ja Yoo to social workers at the Concord Psychiatric Hospital. Associated with this material the Crown also seeks to rely on paragraphs 11 and 12 of the statement of Dr John Perica dated 17 April 1998 together with various representations contained in hospital records which are annexed thereto and the statement of Robyn Anne Collins dated 17 April 1998 together with Ms Collins' notes of discussions with In Ja Yoo. Ms Collins is a social worker who had dealings with In Ja Yoo during her admission to the Concord Psychiatric Hospital in March and April 1998. I reject the whole of this material. Broadly, the material contains accounts that In Ja Yoo complained to Ms Collins and other staff at the Concord Hospital that the prisoner made threats both to her and to her children. The threats were said to have been made in connection with the prisoner's immigration application. 10 It appears that In Ja Yoo was admitted to the Concord Hospital on 18 March 1998. She remained a patient at that hospital until shortly before her killing on 8 April 1998. It is sufficient for present purposes to note that the threats referred to in this body of material were not sufficiently particularised to enable me to determine when it was they were made. Accordingly, it is not possible to determine for the purposes of s 65(2)(b) whether In Ja Yoo's representations were made "shortly after" the making of them. Accordingly, I am of the view that the evidence is not admissible under s 65(2)(b). The Crown submits that the material is nonetheless admissible pursuant to s 65(2)(c). That subsection requires consideration of whether the representation was made in circumstances which make it highly probable that it was reliable. 11 I have regard to the decision of Sperling J in R v Mankotia, unreported 27 July 1998, as to the construction of s 65(2)(c) of the Evidence Act. His Honour was of the view that 'the circumstances' to which both subsections (b) and (c) are directed refer to the circumstances in which the representation was made in the sense of its factual setting at that time. The effect of this construction is to exclude from consideration events subsequent to the representation being made together with other representations made by the same person on other occasions. His Honour noted that this approach differs from that which Hunt CJ at CL appears to have taken in R v Lock (1997) 91 A Crim R 356 at 360. I note that in Lock, Hunt CJ at CL was not invited to give specific attention to the construction to be placed on the words "made in the circumstances" for the purpose of s 65(2) (b) and (c). I respectfully favour the approach taken by Sperling J in Mankotia. Applying this test, I do not consider that the representations made by In Ja Yoo to social workers and other staff at the Concord Psychiatric Hospital during her stay were made in circumstances which makes it highly probable that they were reliable. It seems to me that, from time to time, people make false accusations to counsellors and people in authority in the context of matrimonial disputes. If one puts to one side the circumstance that the fears of which In Ja Yoo spoke to the social worker and others were realised, as it seems to me I must do, I see nothing about the fact of the making of the representations which would confer on them the high probability of reliability which the section requires. 12 For the same reasons I reject the evidence of a note said to have been written by In Ja Yoo and signed by her on 25 March 1998 which is an annexure to the statement of the Immigration Compliance Officer, Mark Fitzpatrick, dated 16 April 1998. 13 The Crown seeks to lead evidence from Sun Kyung Kang contained in paragraphs 36 and 37 of a statement made on 9 April 1998. This, too, is the subject of objection. Ms Kang is the daughter of the deceased, In Ja Yoo. At the date of making the statement she was aged 24 years. She was a married woman living with her husband and his family. Ms Kang says that she visited her mother at the Concord Psychiatric Hospital following the latter's admission on 18 March 1998 after taking an overdose of pills. In the course of the visit In Ja Yoo gave an account of the circumstances preceding her suicide attempt. She also said that the prisoner had been visiting her in hospital and making threats in connection with his permanent residency papers. In particular In Ja Yoo said that the prisoner threatened that if she did not sign the papers he was going to kill everyone. 14 The Crown also seeks to lead evidence from the deceased, In Ja Yoo's, son, Dae Sung Kang, about an occasion when he visited her at Concord Hospital following her suicide attempt. In his statement made on 8 April 1998 in paragraph 16 he asserts that the deceased said of the prisoner, "He threatened me by saying that if I wasn't going to sign his permanent resident paper he would kill us". At the date of making the statement, Dae Sung Kang was aged 30 years. He was a married man with an infant child. 15 I propose to admit the evidence of both Sun Kyung Kang and Dae Sung Kang as to the representations made to them by the deceased. I consider that this material is admissible pursuant to s 65(2)(c). I have regard to the circumstances that in each case In Ja Yoo was in hospital following a suicide attempt when she made the representations. They were addressed to her adult son and daughter. Neither of those persons was related to the prisoner. Mr Dhanji submits that there is nothing about these circumstances to satisfy the test of high probability of reliability required by the subsection. In this regard he submits that the deceased may have wished to justify her intention to separate from her husband by making allegations of this kind. I consider that suggestion somewhat fanciful. Adult children would naturally be concerned for their mother's well-being on learning that she had been admitted to hospital following a suicide attempt. I consider it highly probable that In Ja Yoo would not have wrongly asserted that she had been the subject of threats in the course of private conversations with her children in these circumstances. A threat of the character she described is not likely to be forgotten. 16 The Crown also seeks to lead evidence from Ha Yu Kim in conformity with paragraph 8 of a statement made by her on 16 April 1998. Ms Kim was a neighbour of the deceased, In Ja Yoo. She had been in the habit of visiting In Ja Yoo on a daily basis and having coffee and chatting with her. She described her relationship with In Ja Yoo as "fairly close". Paragraph 8 contains an account of representations made by In Ja Yoo on the day of her admission to the Concord Hospital prior to the suicide attempt. Briefly, In Ja Yoo called to Ha Yu Kim's home holding her stomach, apparently in pain and crying. She appeared unable to speak for about three minutes. After that time she gave Ha Yu Kim an account of having quarrelled with the prisoner who had punched her in the stomach and, among other things, said, "If you don't sign and co-operate with me I will kill all of your kids". I propose to allow that evidence to be led by the Crown. In my view, it meets the tests required both under s 65(2)(b) and (c). As to s 65(2)(b), I note the observations made by Sperling J in Mankotia as to the meaning to be given to the words "shortly after". I adopt his Honour's observation that those words: "… imply that a normative judgment is to be made dependent on the circumstances of the case. … The predominant factor in the phrase 'shortly after' must be the actual time that has elapsed and whether that fits the ordinary usage of the expression 'shortly after' in the circumstances of the case. The judgment should, however, be influenced by the policy behind the provision. That is to put a brake on evidence being given of a recollection which may have faded in its accuracy with the passage of time." 17 The assertion contained in paragraph 8 of the statement of Ha Yu Kim is one made within minutes of the incident between the deceased and the prisoner in which it is said the threats were made. It appears that In Ja Yoo, whilst still suffering the effects of the punch to the stomach, walked to her neighbour's house and, as soon as she was physically able to make a report, did so. I consider that those circumstances make it unlikely that the representation was a fabrication. If I were not of that view I would nonetheless admit it pursuant to subsection (c) having regard to the nature of the relationship between the deceased and her neighbour.

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