R v Hwang[2023] QCA 90

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  On 28 July 2016, Mr Hwang was convicted after trial before a jury in the Supreme Court of murder (count 1).  At the commencement of the trial, he pleaded guilty to interfering with a corpse (count 2).  Mr Hwang filed his application for an extension of time to appeal against the conviction on count 1 five and one-half years after the conviction.  As the prospects of success on the appeal affect whether it would be in the interests of justice to grant the extension, the Court heard the arguments advanced for and against whether an appeal could succeed.
2. [2]
   It was not in issue at the trial that Mr Hwang killed Mr Kim by choking him on 16 December 2013.  The prosecution’s case at trial that the killing amounted to murder was left to the jury on three alternative bases under paragraphs (a), (b) and (e) respectively of s 302(1) of the Criminal Code (Qld).  It was in issue whether the prosecution could exclude self-defence beyond reasonable doubt.  The specific issue at the trial in relation to s 302(1)(b) was whether the prosecution could prove beyond reasonable doubt that Mr Hwang choked Mr Kim in the prosecution of the unlawful purpose of stealing Mr Kim’s money.
3. [3]
   There is only one proposed ground of appeal which is that a miscarriage of justice was occasioned by a failure of the learned trial judge to put the defence case properly to the jury on the pathway to felony murder under s 302(1)(b) of the Code.  It is not argued that there was any misdirection on the law but that fairness required the restatement for the jury of the defence case on s 302(1)(b) by reference to the evidence of Mr Hwang.
4. [4]
   Section 302(1) of the Code sets out each of the circumstances in which a person who unlawfully kills another is guilty of murder.  One of those circumstances is paragraph (b):

“if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;”

Section 302(3) provides that under subsection (1)(b) it is immaterial that the offender did not intend to hurt any person.

Summary of the relevant evidence at the trial

5. [5]
   The victim Mr Kim was killed on 16 December 2013.  His body was found by police three days later in a shallow grave at the back of a house in Algester which Mr Hwang used to rent.  The body had been stripped naked.
6. [6]
   On 18 December 2013, Mr Hwang’s house at South Brisbane was searched.  A total of $9,400 in $50 and $100 notes was located in a garden bed adjacent to Mr Hwang’s bedroom window which Mr Hwang had thrown out the window when the police arrived to do the search.  The money was in two bundles, the first of which contained $3,350 and the second contained $6,050.  Another $600 in $50 notes was found by police in a black bag in the bedroom occupied by Mr Hwang at the South Brisbane residence.
7. [7]
   Mr Hwang was interviewed by police commencing at 12.53 am on 19 December 2013 for the purpose of providing a witness statement.  The recording of that interview (exhibit 17) was played to the jury.  Mr Hwang is from South Korea and the interview proceeded with the assistance of a police officer who spoke Korean.  Mr Hwang was told that Mr Kim was missing, a picture was shown to him of Mr Kim and he was asked whether he had seen him and he said he had not.  He was asked whether he knew Mr Kim and he said he did not.
8. [8]
   After the deceased’s body had been located, Mr Hwang was interviewed again on 19 December 2013 commencing at 10.08 pm for the purpose of a formal record of interview with the assistance of a qualified Korean interpreter.  The recording of that interview (exhibit 20) was also played to the jury.  After being presented with text messages between himself and Mr Kim from 16 December 2013, Mr Hwang explained he responded to an advertisement on a website as he needed Australian dollars, a person rang him back and he did not know that it was Mr Kim, as he only had the phone number.  He said the two of them spoke about converting some money.  Mr Kim wanted to exchange around AUD$10,000.
9. [9]
   During the course of the interview, the police revealed that Mr Kim’s body had been located in a shallow grave at the Algester house.  After a short break in the interview, Mr Hwang was invited to say what happened on 16 December 2013 in his own words.  He said that he ended up going to Mr Kim’s house and took him to the Algester place where he said his friend would do the deal with Mr Kim.  They were talking while waiting for the friend.  Mr Hwang pretended they were looking at the house.  Mr Hwang stated:

“So I … strangled … Kim’s neck from behind. But then he resisted. And then, so, I ended up putting more strength into my body. And I got scared and frightened, so my body stayed in a state where the whole thoughts of strength kept going. And then ah, my strength ran out and that person’s strength ran out too. Well, I didn’t know how much time had passed. I didn’t know how hard I was strangling him. Umm, I just thought he’d fainted, but I looked at his face and the situation was serious. And there was almost no, not even small movements and I don’t think he was breathing. Ah, well, as I was looking at him, I got scared. I didn’t know what I should do first. I just thought if I got rid of him quickly. So, I got rid of traces … I moved him from inside to the garden. And then I dug into ground. Yeah, and that’s that.”

10. [10]
    During the interview, Mr Hwang admitted that on the way to Algester and before he met Mr Kim, he had not so good thoughts and came there “thinking, threaten him, take the money”.  He said that on the way there he “had lots of second thoughts”.  He said that the drive to Algester took 20 minutes and they talked and they were about the same age and lived in neighbouring suburbs in Korea and he “actually got quite close to him”.  He was asked about the brick hammer (which he had purchased immediately prior to collecting Mr Kim) and the Sellotape packaging tape located in the wheelie bin and he responded that “in the beginning, I didn’t even think or I couldn’t imagine killing anyone” and he was just going to scare Mr Kim.  Mr Hwang was asked how he strangled Mr Kim.  He said “From behind” then demonstrated, saying “Like that, so that the neck would come like this” and then “So, I choked him”.  Mr Hwang then said “We both fell and he struggled and as I was seeing him struggling, I put my strength on my body”.  He was asked again to show how he strangled Mr Kim and said:

“Behind, for around the neck. And ah, we sort of fall down, down. And he was trying to pull my hand up and trying to get out. And then I tried to hold him and not let him go. And I think we both were doing that. I, I don’t know how long it passed umm, trying all our strength. And then there were no movements. I ran out of strength.”

11. [11]
    Mr Hwang identified two envelopes that had the money in it that Mr Kim was proposing to exchange.  He said there was $5,000 in one envelope and $3,000 in the other and the cash was amongst the money that Mr Hwang had thrown out of his place at South Brisbane when the police arrived.
12. [12]
    Mr Hwang gave evidence at the trial with the assistance of an interpreter.  His evidence included the following.  He was 173 cms tall and in December 2013 he weighed around 69 to 70 kgs.  Mr Hwang had decided to steal money from Mr Kim by taking him to the house at Algester where he told Mr Kim they were going to meet a person who was doing the internet banking on Mr Hwang’s behalf so that he could exchange money with Mr Kim.  His plan was that after taking money from Mr Kim, Mr Hwang would run away.  Mr Hwang collected Mr Kim in the car owned by Mr Hwang’s friend and it took 20 to 25 minutes to drive Mr Kim to the house at Algester.  The gate was open at the Algester house and Mr Hwang parked the car in front of the place and told Mr Kim to wait in the car until he entered the house.  There was someone in the house who was collecting things and putting them in a mini truck.  He left and Mr Hwang returned to the car and invited Mr Kim to go into the house.  He was asked whether he was still determined to steal Mr Kim’s money and his response was:

“Yes. I had a thought but when I first saw Mr Kim he looked taller than I was and he was better built than I was. While we were travelling in our car and we had the conversation about many things and during the conversation I found out that he was living in the same area as mine in Korea and we were the – we were the same age, and in that short period of time we got closer to each other. I felt that way. My thought was changing a little bit, little by little, when we arrived in – at Algester place…

Well, I had a second thought of just returning without taking money from him.”

13. [13]
    It was never Mr Hwang’s plan to enter the house but Mr Kim asked him whether he would be able to look around the house and they entered through a sliding door on the verandah where the dining area is.  It was unlocked and they looked around.  Mr Hwang told Mr Kim that the person who was coming to do the internet banking on his behalf was moving into the house that day.  Mr Kim kept asking him when that person was coming.  Mr Hwang then said:

“So I continued telling him that he was going to come soon, but there wasn’t such a person who was going to come. Then he started to become upset and he asked me – and then he asked me to – asked me, saying would you be – would you give the contact number of that person to me? So I told him that I will – I would contact him myself. But I didn’t have a phone number of that person. I couldn’t give it to him. Then he became suspicious and he got angry at me. And he told me, are you – are you playing with me? And he said this and that, and he pushed me, and I thought he was going to hit me, so I went behind him and grabbed him. Because he was taller than I was, I was holding onto him from behind and I kept holding onto him while he was – he struggled to get away and we fell down together onto the floor and the impact was big and I held onto his neck – sorry. I continued holding onto his neck. I don’t know how long the time passed. It seemed that Mr Kim didn’t – was not conscious and I undid – I had – and I undid my arms from his neck and I looked at his face and lot of blood and foams came out of his mouth. That’s how it happened.”

14. [14]
    When asked why he held Mr Kim around the neck, Mr Hwang explained:

“I was scared. I lied to him and he found out that I was lying and he was upset and he pushed me a couple of times and I thought he was about to hit me. That’s why I went to his – went behind him and held onto his neck.”

15. [15]
    At the conclusion of Mr Hwang’s evidence in chief, his trial counsel asked him whether he grabbed Mr Kim around the neck in order to rob him and Mr Hwang responded in the negative.
16. [16]
    Mr Hwang’s evidence in cross-examination included the following.  He chose to take Mr Kim to the Algester house because he knew it would be empty, as Mr Hwang had moved out of the house a few days earlier.  Mr Hwang did not take Mr Kim inside the house until Mr Kim asked whether he could have a look inside the house.  The door was open and that was why they went into the house together.  When they arrived at the place, Mr Hwang “couldn’t think whether to take his money or not and [his] lies led to another lie and it was like that”.  While they were in the house, Mr Hwang was thinking about how he would take Mr Kim’s money and then Mr Kim repeatedly asked him when Mr Hwang’s friend was going to come.  Mr Kim asked Mr Hwang to give him the friend’s contact number so he could contact him himself.  Mr Kim got angry at Mr Hwang.  Mr Hwang accepted that he held Mr Kim around his neck but he did not have any intention to wait until he lost consciousness.  Mr Hwang had continued lying to Mr Kim and Mr Kim knew that Mr Hwang was lying and got angry and then he pushed Mr Hwang two or three times and Mr Hwang thought Mr Kim was going to hit him and that is why he grabbed him around the neck.
17. [17]
    When it was put to Mr Hwang that he had not told the police in the interview about Mr Kim’s pushing him, Mr Hwang responded that what he told the police was not an accurate account.  Mr Hwang said:

“When I first held my arms around his neck I was in a shape like a piggy back and I was – as if I was carried on his back. I was holding onto his neck and he shook me – he was trying to shake me off when we fell on the – when we lost our balance and fell on the ground.”

18. [18]
    Mr Hwang accepted that he continued to hold onto Mr Kim after falling on the floor and he did not know how long passed before Mr Kim’s resistance stopped and Mr Hwang “undid” his arm.
19. [19]
    Mr Hwang’s evidence in cross-examination also included the following.  Mr Hwang had scissors, tape and gloves with him and he was going to control Mr Kim by force.  Mr Kim lost consciousness while Mr Hwang was holding him around his neck.  Mr Hwang accepted that it was true that he met Mr Kim to steal his money and in the end he took his money but he said he did not kill him to take his money.
20. [20]
    The forensic pathologist Dr Olumbe who performed the post mortem of Mr Kim gave the following evidence.  Mr Kim was 187 cms tall and weighed 69.2 kgs.  He was therefore “tall and skinny”.  There was a recent injury in the nature of a linear abrasion or a graze around the neck rising above the region of the Adam’s apple and continuing to the sides of the neck, particularly to the left hand side of the neck where the abrasion measured 10 mm in maximum width.  There were bruises on the back of the middle phalanx of the right ring finger and smaller ill-defined bruises on the back of the left little and ring fingers.  Dr Olumbe favoured these bruises being due to contact with the ground in a fall.  On internal examination of the body, there was an injury to the right flank measuring 95 mm by 65 mm that was consistent with having been caused by a blunt object or contact with a surface such as the ground or floor.  There was a fracture of the left hand side of the Adam’s apple and hyoid bone (that sits at the base of the tongue) on the left hand side.  Dr Olumbe was of the opinion that there had been a broad application of force to cause neck compression.  Moderate force was required to fracture the bony structures of the Adam’s apple and the hyoid bone.  The mechanism of death was most likely airway obstruction following pressure to the neck structures.
21. [21]
    One of the admissions made in the trial by Mr Hwang was that he underwent a forensic examination on 23 December 2013, when the only injuries noted were a small graze on his left elbow, a small scab with some reddening on his lower right arm and a small scab on his left foot near his arch.

The cases at trial

22. [22]
    The issue at the trial was more subtle than that implicit in the last question and answer in Mr Hwang’s evidence in chief or Mr Hwang’s answer in cross-examination that he did not kill Mr Kim to take his money.  The question for the jury was not whether Mr Hwang’s purpose in choking Mr Kim was to rob him but whether the chokehold was a step in carrying into effect his unlawful purpose of robbing Mr Kim.  Mr Hwang’s trial counsel (who was not the counsel who appears on this application for Mr Hwang) in addressing the case against Mr Hwang under s 302(1)(b) of the Code submitted to the jury (incorrectly) that the real question for the jury was “whether, when he grabbed him around the neck it was for the purpose of the commission of the robbery or whether it was for some other reason”.
23. [23]
    Mr Hwang’s trial counsel then submitted to the jury (more accurately) that the issue was whether the jury were satisfied beyond reasonable doubt that Mr Hwang grabbed Mr Kim around the neck and strangled him in the prosecution of his unlawful purpose of stealing or whether there was some other possibility open consistent with the evidence Mr Hwang gave as the reason for strangling Mr Kim.
24. [24]
    Apart from outlining the content of s 302(1)(b) and s 302(3) of the Code, the prosecutor at the trial mentioned very little in his address to the jury of the case based on s 302(1)(b) and merely posed the issue on these terms:

“Up to [(b)], it’s clear that he had an unlawful purpose; he admits that. That’s one of the few things you might accept that has come from his mouth. In the course of that did he not do a dangerous act that was likely to endanger the life of Mr Kim, and he bears the consequences of his own acts in that circumstance and he is guilty under our law of the offence of murder.”

The summing up

25. [25]
    The trial judge read out passages from the transcript of the record of interview and Mr Hwang’s evidence at the trial to remind the jury of his descriptions of the killing and of the events surrounding the killing.
26. [26]
    When summing up on s 302(1)(b) of the Code, the trial judge described the third aspect of s 302(1)(b) as follows:

“The third aspect of para (b) is that the defendant did the act in the prosecution of the unlawful purpose of stealing Mr Kim’s money.  Now, the question is whether you are satisfied beyond reasonable doubt that the act which killed Mr Kim, that is, the strangling, was done in the prosecution of an unlawful purpose.  That does not mean that the act had to be committed – that does not mean that the strangling had to be committed while the defendant was in the process of physically stealing the money.  Rather, it had to be an act which occurred while the defendant was putting his plan to steal Mr Kim’s money into effect.  So the question is whether you are satisfied beyond reasonable doubt that the strangling occurred in the course of the defendant prosecuting an unlawful purpose”.

27. [27]
    When the jury retired for a short break after the trial judge had dealt with the provisions of s 302(1) of the Code, Mr Hwang’s trial counsel raised with the trial judge whether it might be useful to be more specific with the issue from Mr Hwang’s perspective under s 302(1)(b) of whether the choking was as a result of the physical altercation between Mr Kim and Mr Hwang rather than leaving the question as to whether the choking was done in the prosecution of an unlawful purpose.  It was argued that Mr Hwang’s evidence raised the issue that Mr Hwang choked Mr Kim because of being pushed by Mr Kim and being scared, so then the choking would not have been done in the prosecution of the unlawful purpose of stealing.  The trial judge observed that the choking occurred while Mr Hwang had Mr Kim at the Algester house to steal money from him and that killing him did not stop Mr Hwang from stealing Mr Kim’s money which pointed to an ongoing plan.  The trial judge declined to further elaborate on the direction that had been given on s 302(1)(b).
28. [28]
    The trial judge in summing up the addresses of the trial counsel touched on the submissions they made about the application of the evidence relevant to felony murder.  In respect of the applicant’s trial counsel’s submissions, the trial judge stated:

“He then moved to make submissions to you about what you might or might not draw from the interviews and the evidence given by the defendant and highlighted the fact that in the interview, the defendant was never asked why he grabbed the deceased’s neck from behind and pointed out that there was no mention of them falling to the ground. And [defence counsel] submitted that that passage of the interview could be seen as just being a snapshot or a piece of the full version of events that occurred. He asked, rhetorically, if the defendant didn’t grab the deceased around the neck to rob him, then why did he do it, and the answer that [defence counsel] submitted you should find to that was that because the deceased threatened him, and [defence counsel] then made submissions about the way you would apply facts on the basis of those submissions to the elements of offence … as I have directed you.”

29. [29]
    The trial judge summarised the prosecutor’s submissions relevant to this topic as follows:

“[The prosecutor] then turned to address you on the dynamics of what occurred, and asked rhetorically, how the defendant was able to get behind the deceased and get his arm around his neck, and he submitted to you that the only commonsense explanation is that that action was consistent with the deceased being surprised from behind, because that’s how the defendant was going to steal the deceased’s money.”

30. [30]
    After the jury had commenced considering their verdict, they sent a note that sought clarification of paragraph (b) of s 302(1) of the Code.  They asked whether “by means of an act” is the “act” the chokehold and, if not, what was it and whether the act needed to be simultaneous.  In redirecting the jury on paragraph (b), the trial judge stated that “there is no issue in this case that Mr Kim’s death was caused by the act of choking or strangling” and that was the act that is referred to for the purpose of the first phrase in paragraph (b) of “if death is caused by means of an act”.  The next part of the jury’s question in relation to paragraph (b) was interpreted by the trial judge as a question about the phrase “prosecution of an unlawful purpose” where in paragraph (b) it says “an act done in the prosecution of an unlawful purpose”.  In response to the jury’s question whether the act needed to be simultaneous, the trial judge stated:

“Now, if the question is does the choking need to be simultaneous with the physical act of stealing money out of his pocket, the answer's no, all right, because that's not what the section says.”

31. [31]
    The trial judge went on further to remind them what s 302(1)(b) said and then repeated what he had said in his summing up as follows (where the original summing up is in italics and the addition made during the redirection is in ordinary type):

“In relation to the third element, the question is whether you are satisfied that the act which killed Mr Kim –

so that’s the choking or strangling –

was done in the prosecution of an unlawful purpose.  That does not mean that the act had to be committed while the defendant was in the process of physically stealing the money.  Rather it had to be an act which occurred while the defendant was putting his plan to steal Mr Kim’s money into effect.”

Authorities on s 302(1)(b) of the Code

32. [32]
    The source of the expression “unlawful purpose” found in s 302(1)(b) and s 8 of the Code is explained by Pidgeon J (with whom Kennedy and White JJ agreed) in Seiffert v The Queen (1999) 104 A Crim R 238 at 242-246 in dealing with the equivalent Western Australian provisions.
33. [33]
    The discussion by Pidgeon J in Seiffert was referred to with approval by the Court in R v Georgiou & Ors (2002) 131 A Crim R 150 where the Court focused (at [53]) on the choice of the expression “unlawful purpose” rather than “offence” in s 302(1)(b) of the Code and that the unlawful purpose is not limited to the strict elements of an offence.

The applicant’s submissions

34. [34]
    It is submitted on behalf of Mr Hwang on this application that the trial judge was obliged to sum up the case in a way that highlighted the real issue on s 302(1)(b) of the Code and relate the directions on the law to that issue.  It is argued that the jury were told by the trial judge of the factual finding that could result in conviction based on s 302(1)(b) but, in fairness, they should have also been told of a possible fact arising from the applicant’s evidence that may have precluded their satisfaction beyond reasonable doubt based on s 302(1)(b).  It is therefore submitted that required the trial judge to explain to the jury that they could reason to a manslaughter conviction if they acted on the applicant’s evidence that he was defending himself after Mr Kim pushed him and he was in fear of being hit and that he therefore did not choke him in the prosecution of the unlawful purpose of robbing him.

The respondent’s submissions

35. [35]
    The respondent submits on this application that the direction now contended for on behalf of the applicant was unnecessary, as the evidence from Mr Hwang did not support the trial judge’s suggesting that the possibility that Mr Hwang was defending himself from an attack by Mr Kim would preclude conviction based on s 302(1)(b) of the Code.  It is submitted that there was no relevant evidence from Mr Hwang to enable the jury to reason that there was a possibility that Mr Hwang’s plan to steal Mr Kim’s money put into action by taking Mr Kim to the unoccupied house at Algester ceased before the chokehold and that after the choking or strangling occurred, the money was stolen by Mr Hwang as a separate new plan.

Was there unfairness in the directions given on s 302(1)(b)?

36. [36]
    The assumption that underpins the applicant’s submissions on this application is that the trial was conducted on the basis that there were two alternative factual findings open for consideration by the jury: the choking or strangling of Mr Kim was committed in the prosecution by Mr Hwang of the unlawful purpose of stealing from Mr Kim; or the choking or strangling occurred because Mr Hwang was defending himself after Mr Kim pushed him.  There was another possible finding open to the jury that the struggle occurred between Mr Hwang and Mr Kim in the course of the prosecution of Mr Hwang’s plan to rob Mr Kim and that unlawful purpose never abated during the interaction leading up to Mr Kim’s death.  Even accepting Mr Hwang’s evidence at its highest that the immediate cause of his putting the chokehold on Mr Kim was a reaction to his being pushed by Mr Kim, Mr Hwang was consistent in asserting that he approached Mr Kim from behind to put the chokehold on Mr Kim and it did not follow that the unlawful purpose which Mr Hwang had put into action by bringing Mr Kim to the Algester house ceased because a struggle ensued between them.
37. [37]
    As explained in many authorities, including Tully v The Queen (2006) 230 CLR 234 at [75], it is for the trial judge to explain to the jury so much of the law as they need to know in deciding the real issues in the case and it is for the judge to decide what those real issues are and to tell the jury, in the light of the law, what those issues are.
38. [38]
    The real issue at the trial was fairly identified for the jury in the summing up as whether Mr Hwang was still prosecuting his plan to steal from Mr Kim when he put the chokehold on Mr Kim.  The fact that there may have been a struggle between Mr Hwang and Mr Kim at the place Mr Hwang had taken Mr Kim to rob him did not necessarily displace Mr Hwang’s purpose in being at the Algester house with Mr Kim to steal from Mr Kim or mean that the chokehold was not a step in carrying out the purpose of stealing from Mr Kim.  The trial judge expressed accurately in the summing up and the redirection that in order to convict under s 302(1)(b) of the Code the jury had to satisfied beyond reasonable doubt that the choking or strangling of Mr Kim occurred while Mr Hwang was putting in effect his plan to steal Mr Kim’s money.  There was no unfairness in the trial judge not giving an example of fact finding by the jury that may result in an acquittal of Mr Hwang of murder based on s 302(1)(b), as it would have highlighted that it was not a simple choice between the prosecution contention that Mr Hwang’s unlawful purpose never abated or the defence contention that the chokehold was put on after Mr Hwang was pushed by Mr Kim, as the jury could be satisfied that the choking or strangling of Mr Kim was done in the prosecution of Mr Hwang’s unlawful purpose of stealing from Mr Kim irrespective of whether the jury accepted as a possibility that Mr Hwang put on the chokehold after being pushed by Mr Kim.  That was particularly so in the circumstances where any physical fight that may have ensued after a push from Mr Kim was in the place to which Mr Kim was lured by Mr Hwang to carry out that unlawful purpose, the chokehold was put on Mr Kim from behind and, after Mr Hwang choked Mr Kim to death, Mr Hwang stole Mr Kim’s money.
39. [39]
    Mr Hwang has failed to show that there is any prospect of a successful appeal based on the directions given by the trial judge on s 302(1)(b) of the Code.

Order

40. [40]
    In view of Mr Hwang’s lack of prospects of success on an appeal, it is not in the interests of justice to grant the extension of time to appeal against conviction on count 1.  The order which should be made is: Application for extension of time to appeal against conviction refused.
41. [41]
    BOND JA:  I agree with the reasons for judgment of Mullins P and with the order proposed by her Honour.
42. [42]
    CROW J:  I agree with Mullins P.