A doctor sent to jail for the rape and sexual assault of a karaoke bar hostess has had his convictions set aside and will face a new trial after appeal judges ruled there may have been a miscarriage of justice in the jury’s verdict.
Ahn Sup Kim, a former cosmetic doctor, was sentenced to 7½ years in prison after a jury declared him guilty of raping a woman at a bar in Melbourne’s CBD in September 2017.
Mr Kim, who was 48 at the time of the alleged offence, chose a hostess to join him in a private room at the bar.
Police alleged Mr Kim, without consent, touched the woman’s breasts over her clothing, kissed her, touched her vagina over her clothes after he spread his legs apart, put his right hand down the front of her pants and touched her vagina and penetrated her vagina with his fingers.
The jury found him guilty of the sexual assault and rape but Mr Kim appealed the sentence and convictions in January this year.
Mr Kim said the trial judge had erred in directing the jury that Mr Kim’s denials to police of penetrating the woman’s vagina and touching her vagina beneath her underwear could be used by jurors as evidence of incriminating conduct.
In his interview with police, Mr Kim initially denied sexual contact with the woman.
When he was shown CCTV footage of his contact with her, Mr Kim admitted he had touched the woman’s breast, both over and under her clothing, touched her vagina over her pants and checked her pulse.
But he maintained he had not penetrated or touched the woman’s vagina beneath her underwear.
The trial judge ruled that Mr Kim’s answers to the police’s questions on penetration and touching beneath the underwear were, on the basis of the evidence as a whole, reasonably capable of being viewed by the jury as deliberate lies and, therefore, incriminating conduct, the appeal judges said in their review of the case.
“The CCTV footage shows that the applicant had his hand inside (the woman’s) pants for a period of about 1 minute and 30 seconds and his hand appearing to move during that time, but it could not establish whether his hand was beneath her underwear and/or whether he was either touching or penetrating her vagina,” the appeal judges said.
“Accordingly, the applicant’s answers to questions 789 and 791 (on penetration and touching under the underwear) in the record of interview did not and could not amount to incriminating conduct.
“There is no basis in the evidence from which to reason that these two denials were deliberately false unless it is first assumed that the applicant did those acts.
“That circular reasoning is impermissible.”
In another objection, Mr Kim said the trial judge failed to direct the jury to consider the alleged “lies” relied on by the prosecution as evidence of incriminating conduct separately, as they related to different charges. The appeal judges upheld this argument.
“The judge directed the jury that ‘a lie’ could be used as evidence that the applicant believed he had committed ‘the various sexual offences’, specifically that he had ‘touched and penetrated’ (the woman) and also that the ‘lies’ were relied upon in proof of ‘all the sexual offences, including the rape and any alternatives’,” the appeal judges stated.
“The jury may well have understood these later directions to mean that any single lie could be used in relation to any of the charges and that the combined force of the lies was also relevant to all the charges.
“That danger is compounded by the fact that two of the alleged lies, be they used as a single lie or as part of the suite, were incapable of being used as evidence of incriminating conduct at all.
“There is a real risk that the jury may have reasoned impermissibly in this manner, which is productive of a substantial miscarriage of justice with respect to all of the charges of which the applicant was convicted.”
Though some of Mr Kim’s other objections were dismissed, the appeal judges ordered a new trial because two of the grounds for appeal were upheld.
The convictions have been set aside.
A directions hearing in Mr Kim’s case was heard at Victorian County Court on Wednesday.