Pong Su (No 1)

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No.1424 of 2004

THE QUEEN

v

TA SONG WONG, DONG SONG CHOI, MAN SUN SONG, MAN JIN RI, JU CHON RI

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JUDGE:	KELLAM J.
WHERE HELD:	MELBOURNE
DATE OF RULING:	6 December 2004
CASE MAY BE CITED AS:	In the Matter of the Pong Su (Ruling No. 1)
MEDIUM NEUTRAL CITATION:	[2004] VSC 482

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CRIMINAL LAW – Application for a view by the jury of a ship situated in New South Wales – Application for an order restraining the disposal of the ship pending completion of criminal proceedings.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr J. Champion, S.C. with Mr M.P. Cahill	The Solicitor for the Commonwealth Office of Public Prosecutions
For Ta Song Wong	Mr A.R. Lewis	Lethbridges
For Dong Song Choi, Man Sun Song, Man Jin Ri, Ju Chon Ri	Mr P. Faris, Q.C.	Ellinghaus and Lindner

TABLE OF CONTENTS

A. Background.................................................................................................................................... 1

B. The Evidence Relating to the Ship and its Condition........................................................... 2

B. The Submissions........................................................................................................................... 3

(1) The submissions of the master, chief mate, chief engineer and the political officer of the Pong Su (“the crew”)............................................................................................................. 3
(a) The issues in respect of which a view is sought by the crew to better enable the jury to understand the evidence......................................................................................................................... 4
(b) The issues in respect of which it is sought by the crew to tender the ship as an exhibit......... 5

(2) The submissions of Wong in support of an order for a view of and for the tender of the ship.................................................................................................................................................. 6
(3) The submission on behalf of the Australian Federal Police (“AFP”).............................. 7
(4) The submission on behalf of the prosecution..................................................................... 8
(5) Submissions in reply on behalf of the ship’s crew............................................................. 8

The discretion to order a view....................................................................................................... 10

The Retention of the Ship as an Exhibit...................................................................................... 14

HIS HONOUR:

A. Background

The Pong Su is a ship 106 metres in length, designed to carry general freight. The prosecution contend that the ship left North Korea on 25 February 2003 and after stopping at Singapore and Indonesia, proceeded down the west coast of Australia into Victorian waters. It was seen anchored offshore from Boggaley Creek near Lorne on the afternoon of 15 April 2003. The prosecution asserts that whilst so anchored, a substantial quantity of heroin was unloaded from the ship into an inflatable rubber dinghy which then took the heroin ashore to a beach.

The prosecution case is that the accused man, Ta Song Wong (“Wong”), together with another man who has never been identified and who was later found dead on the beach, left the Pong Su in the dinghy with the heroin and landed at Boggaley Creek. The prosecution has charged Wong with the importation of heroin into Australia. The prosecution alleges that a number of the members of the crew of the Pong Su, the master Man Sun Song (“Song”), one Dong Song Choi (“Choi”) who is said to be the “political secretary” of the ship, the chief mate Man Jin Ri (“Man Ri”), and the chief engineer Ju Chon Ri (“Ju Ri”) together with others aided, abetted, counselled or procured the importation of the heroin into Australia.

Subsequent to the ship being seen at Boggaley Creek on 15 April 2003 it travelled eastwards and then up the New South Wales coast where it was boarded by the Australian Navy on 20 April 2003. It was then taken to Sydney Harbour where it remains today.

The trial of each of the above accused men is now fixed for hearing early next year. Counsel for each of the accused men seeks a pre‑trial determination of whether a jury, when empanelled, should be taken to Sydney to be permitted to view the ship. Furthermore, counsel for the above accused have stated an intention to tender the ship as an item of physical evidence in trial.

B. The Evidence Relating to the Ship and its Condition

It is necessary to refer in some detail to the evidence of Trevor Cosh as both the accused men and the prosecution rely upon reports prepared by him for the Australian Federal Police. Mr Cosh is a highly qualified and well experienced Marine Surveyor. He inspected the ship on 23 April 2003 and prepared a survey report[1]. That report detailed the physical features and the condition of the ship at the time of his inspection. His inspection revealed that there had been a serious interference with the ship by the regulatory authorities and that it was apparent that some equipment such as the SATCOM units and other navigation devices had been moved to shore, although he noted such equipment as was present. Searches of the ship were underway as he conducted his inspection. He noted that cabins had been searched in a “very destructive manner” and that furniture and panelling had been piled in heaps on the floor together with personal belongings, ship’s documentation and equipment. He took numerous photographs of the ship and many of its fittings although it should be observed that the purpose of his report was to “protect the interests of J.Mac Pty Ltd” who were employed as “shipkeepers” by the Australian authorities, and thus his report was not prepared with the forensic issues in mind. The report is directed to defects which existed at the time of the inspection. However, even taking into account the purpose for which the report was prepared it is apparent from Mr Cosh’s report that although the ship was generally “well maintained” there were significant problems with corrosion and leaky fittings in various areas. He observed that, “The vessel would be likely to fail port control inspections in any major port … (and) there is now such extensive damage to the accommodation, domestic services and lifesaving equipment, coupled with the loss of navigation publications etc that the vessel is currently of little commercial value and its distance from a scrapping port makes that option unlikely.”
[1]pp.402 – 435 of depositions.

In addition to the evidence of Mr Cosh the depositions contain a statement and photographs of the electronic equipment found in the Bridge and the radio room of the ship. A detailed report into the condition of the

engine with photographs was prepared by a marine surveyor, Patrick McAuley. There is video footage of the ship taken at sea before its apprehension and video footage of the ship taken at sea after having been boarded by the Australian Navy. Plans of the layout of the ship are available to be provided to the jury.

It is appropriate to record that on 16 July 2004 I conducted a view of the ship in Sydney Harbour in company with the legal representatives of the prosecution, the relevant accused persons and the Australian Federal Police. The ship remains generally intact in respect of its structure and layout. However, there has been obvious destruction and damage and it is apparent that the ship is deteriorating, particularly in terms of rust and will no doubt continue to do so. As stated by Mr Cosh, the firm of J.Mac Pty Ltd have been employed as “shipkeepers”, and their obligations as I understand it are to keep the ship secure, keep pumps and lighting running and to ensure that the ship does not pollute the harbour, but not to engage in restorative maintenance.

B. The Submissions

All of the above accused and the prosecution have filed written submissions in support of their respective contentions. In addition to the relevant parties to the criminal proceeding, I granted leave to the Australian Federal Police to make submissions in relation to the issue of whether the ship should be retained for a view, they at present having custody of the ship and being responsible for its maintenance.

(1) The submissions of the master, chief mate, chief engineer and the political officer of the Pong Su (“the crew”)

By written submissions filed on 29 July 2004, the crew submit that an order for a view of the ship should be made pursuant to s.419 of the Crimes Act 1958 because, it is argued, that without a view the jury will be unable to understand the prosecution evidence relating to the ship, and/or issues which will be raised by the crew in their defence. Furthermore, the crew submit that the ship is “relevant real evidence” of a number of matters and that the jury will be invited to use it as real evidence of those matters.

(a) The issues in respect of which a view is sought by the crew to better enable the jury to understand the evidence

It is submitted that a view is necessary to enable the jury to gain a full understanding of the prosecution evidence relating to the tasks, equipment and facilities involved in navigating and propelling the ship to Boggaley Creek. Furthermore, it is submitted that the jury will be assisted by a view of the location and means of operation of the satellite navigation system and the location of and rights of access to navigational documents by the ship’s crew. In relation to the issue of storage of heroin on the ship, the number and identity of locations in which the heroin could have been stored on the ship, together with the means of access to those locations by the ship’s crew or other persons, and the means by which the heroin could have been concealed at those locations are said to be issues which a jury would better understand by having a view.

Furthermore, the issue of the number and identity of locations in which the dinghy could have been stored on the ship and the manner and right of access to such locations by the ship’s crew or any other persons are said to be issues which would be more easily understood by a view of the ship.

The provision of sleeping arrangements and cabins for members of the ship’s crew and the relationships between the sleeping quarters so identified and the location where documents and valuables were stored and capacity for crew members and others to observe the activities of other members of the ship’s crew are likewise issues which it is submitted will be better understood by the jury having a view of the ship.

The question of the control of lighting on the ship, including the means by which the ship’s external and internal lighting could be controlled, the number of people required to operate the lighting and the issue of whether the lighting could have occurred without the defendant crew members’ knowledge are submitted to be further issues which would be better understood with a view of the ship by the jury.

Furthermore, the means by which a dinghy could be launched from the ship, including the operation of the ship’s derricks, and the issue of whether the dinghy could have been launched or the heroin transferred to it without the defendant crew members’ knowledge is an issue which is relied upon as being relevant to the question of a view being conducted by the jury.

(b) The issues in respect of which it is sought by the crew to tender the ship as an exhibit

In addition, several of the above issues are relied upon as establishing the basis upon which the ship should be tendered as an exhibit and as relevant real evidence. In particular, it is submitted that the real evidence of the ship is required to demonstrate to the jury that there are a number of locations in which heroin could have been stored and as evidence which would enable the jury to consider the possibility that the heroin was stored at such location without the defendant crew members’ knowledge.

Likewise it is submitted that the tendering of the ship as real evidence may be used by the jury to establish that there were a number of locations in which the dinghy could have been stored and concealed, with a view to inviting the jury to consider the possibility that it could have been stored without the defendant crew members’ knowledge. The question of the sleeping arrangements for the ship’s usual crew and any extra persons is relied upon by the crew as real evidence by which the jury may be invited to consider the possibility that sleeping quarters were shared by the crew members and any extra persons situated upon the ship and, furthermore, to enable the jury to consider the possibility that any extra persons could have been accommodated on board the ship without the defendant crew members’ knowledge.

Finally, the tendering of the ship is submitted as being important in terms of evidence by which the issue of the launching of the dinghy and the alleged transfer of heroin to it might be considered by the jury. In particular, the means by which the dinghy could have been launched, the number of people required to launch the dinghy, the number of people required to transfer the heroin, the means by which the ship’s derricks were operated, the number of people required to operate the derricks, and the degree to which the operation of the derricks could have occurred without the defendant crew members‘ knowledge are submitted as relevant matters to enable the jury to consider that the dinghy could have been launched or the heroin transferred to it without the defendant crew members’ knowledge.

The crew members submit that the prosecution case against them is circumstantial in nature, relying on the proposition that the appearance of the heroin and dinghy at Boggaley Creek can be explained only by their delivery to that point by the Pong Su and that in turn the co‑operation or knowledge of the defendant crew members was necessary. It is submitted that given the nature of the prosecution case, it is appropriate that the jury have the opportunity of understanding fully the prosecution evidence concerning circumstances on board the ship and that secondary evidence about the circumstances on board will give both a limited and subjective picture of the understanding of the prosecution evidence.

It is submitted that the possible destruction of the ship will prevent the crew members from demonstrating clearly their defence and may prejudice their prospect of obtaining a fair trial and thus engender a possible application for a permanent stay of the proceedings against the crew.

(2) The submissions of Wong in support of an order for a view of and for the tender of the ship

By written submission dated 3 August 2004 the solicitors for Wong support the application made by the crew for the reasons advanced on their behalf. In addition to the arguments advanced on behalf of the crew, it is submitted that a jury could not properly understand the evidence as to what is involved in the launching of a small craft, such as the inflatable dinghy found on the beach near Boggaley Creek without a view. Wong submits that the issue of whether a small craft was launched from the Pong Su lies at the heart of the issue between him and the prosecution, and that without a view the jury could not properly appreciate the proportions and size of the ship, and thus a view of it is necessary to permit an understanding of the evidence. In addition, it is submitted on behalf of Wong, that the jury should be entitled to view the ship and its equipment such as the operation of its derricks as primary evidence. It is submitted that the ship is a “simple exhibit” and that the incapacity of the defence to rely upon the evidence of the ship would be an abuse of process and would deprive Wong of the capacity to advance an alternative hypothesis consistent with his innocence.

(3) The submission on behalf of the Australian Federal Police (“AFP”)

The AFP filed written submissions on 3 August 2004. It opposes the application for a view and the tender of the ship in the proceeding before the jury. It submits that a relevant issue as to the proper exercise of a discretion to conduct a view is the issue of whether there is evidence that the view would be of a scene which was substantially the same at the time of trial as it was at the time of the alleged offence. In that regard it submits that the ship is not in substantially the same condition that it was at the time of the alleged offence, by reason of the disruption caused by subsequent searches of the ship by law enforcement agencies, including Customs and Quarantine, and by reason of deterioration. The AFP contends further that other factors are relevant to the exercise of the discretion including the risk of the jury misconstruing evidence because of changes to the conditions of the vessel since the time of the alleged offence, and practical considerations, including time, expense and safety factors in organising a view for the jury, the likely further deterioration in the condition of the vessel before trial, the fact that the vessel is currently unseaworthy, the cost and maintenance of the upkeep of the vessel and, as time goes on, the increasing risk of the vessel becoming both an unacceptable risk to the environment and navigation and quarantine safety or public health. It submits that when these matters are considered in the context that comprehensive secondary evidence by way of video tape, plans and photographs is available and the fact that the accused have had reasonable opportunity to inspect the vessel and obtain any necessary secondary evidence, there is no basis upon which a view should be ordered.

Insofar as the issue of the tender of the vessel as an exhibit, the AFP contends for the same reasons that it opposes a view that the accused can receive a fair trial without the vessel being tendered. In addition, the AFP contends without providing any particulars, that there are “large issues” as to the effect of s.109 of the Constitution upon the jurisdiction of the Court to make an order preserving the vessel and the jurisdiction to accept the tender of a vessel in any event.

(4) The submission on behalf of the prosecution

The prosecution does not intend to tender the Pong Su into evidence in the Crown case, nor does it intend to make an application to the Court that a view of the ship be held in the presence of the jury. It submits that sufficient secondary evidence exists to enable the jury and the parties to understand properly the issues in the proceeding. It submits that the Pong Su has been filmed extensively with both still and video photography and there is sufficient and satisfactory secondary evidence that will permit oral evidence about the Pong Su to be understood properly. Furthermore, it is submitted that if necessary, further secondary evidence may be obtained to satisfy the specific requirements of any accused person.

Insofar as the issue of whether the Pong Su should be retained for tender at trial, the prosecution submits first that there is no reason to conclude that the accused will not receive a fair trial in the event that the Pong Su is not tendered into evidence or viewed by the jury and furthermore that there are substantial reasons why the Pong Su should not be retained as established by the evidence of Trevor Cosh. The prosecution submits that the proper exercise of discretion does not require orders being made in relation to either a view or a preservation of the ship pending trial.

(5) Submissions in reply on behalf of the ship’s crew

The ship’s crew, by submissions in writing dated 19 August 2004, responded to the submissions made on behalf of the prosecution and the AFP and submit that destruction or disposal of the vessel at this point in time may give rise to an application for a stay of the proceedings against the accused persons either before the trial or at some point after evidence has been adduced, on the ground of extreme prejudice or irreparable unfairness.

They submit that the strength of such an application would depend upon the course of the trial and the nature of evidence that had been adduced and that it would be imprudent to render impossible the tender of the ship in evidence.

It is submitted that the preferable course is to maintain the vessel in order to eliminate the possibility of such an application. In this regard the crew submit that apart from the issues already identified, it is likely that in the course of evidence a fact, circumstance or issue may come to light in a way which is not presently foreseen or predicted and which would indicate the desirability in the interests of justice of a view or tender of the vessel. In particular it is submitted that such a likelihood arises in circumstances whereby the defence of the crew will necessarily involve consideration of the movements of crew members on and in relation to the vessel and/or the status, condition and manipulation of systems on the vessel such as the navigation system and engines and/or the fact that the credibility of such matters may be affected by a precise understanding of the physical nature, geography and layout of the vessel.

It is submitted that secondary evidence can be no substitute for a perception of the actual vessel because photographs and videos lack perspective and the ability to demonstrate the relationship between components, particularly in the case of large objects, and they give little, if any, indication of the size of the vessel, nor do they permit realistic perceptions of the spatial distance between locations or of the topography between them such as walls, stairs and other designated areas.

Furthermore, and in addition, it is submitted that other issues referred to in the earlier submission in writing are likely to be understood better by the jury and evaluated by them by reference to the actual vessel. Such issues include the evidence relating to the launching of the dinghy from the vessel, evidence relating to the suggestion that there was a mechanical breakdown of the vessel’s engines at Boggaley Creek, and evidence in relation to the embarkation of Wong and the deceased person together with the issue of the knowledge and presence of them throughout the voyage.

It is submitted that the proposed evidence of Neale Oxley (a marine pilot who the prosecution seek to have give evidence about, amongst other things, the use of derricks in launching small boats), the evidence relating to engine trouble on the vessel and the change of an injection valve, of the special position of the master, the political officer and his role, quarters and daily movements will be assisted by a view of the vessel. In addition it is submitted that the jury will be much assisted by a view of the vessel in considering the role of the chief engineer, Ju Chon Ri, and the submission made by the prosecution of inferences of guilt which might be attached to him by a consideration of the physical features, geography and layout of the vessel.

Finally, in relation to the question of the view it is submitted that at the present time it is not possible to estimate accurately the degree of assistance likely to be provided by a view and a ruling on the question of a view should not be made at this time. It is submitted that a conservative and cautious approach should be adopted. This would provide for the likelihood that the course of the trial may indicate the desirability of a view.

The discretion to order a view

Section 419 of the Crimes Act 1958 (Vic) provides that the court “may in any case if it thinks fit at any time” before verdict direct that the jury view any place or thing. The discretion to order a view is thus a wide one.

The principles upon which the discretion to permit a jury to conduct a view of any place or thing are clear. It is well established that a view under s.419 may be one of two kinds, a view where no witnesses attend and the jury merely inspects the location or object, in which case there is no addition to the body of evidence. A second type of view may be permitted where witnesses attend and demonstrate what they have referred to in their evidence, in which case the events which took place at the view form part of the body of evidence[2].
[2]See R v Lawless [1974] VR 398 at 421 and R v Alexander and ors [1979] VR 615 at 622.

In the case before me the application made by both the crew and by Wong for a view of the ship by the jury falls into the first category. In summary, it is submitted that a view of the ship will be necessary to enable the jury to gain an understanding as to its size, the method of operation of its navigational device and its propulsion system, as well as the capacity to store heroin and the inflatable dinghy and to enable and understand the accommodation arrangements for crew and others, the control of lighting and the capacity to launch an inflatable boat.

However, in addition to the view sought by the crew and Wong so as to enable the jury to better understand the evidence, each of them submits that the ship and its equipment are primary evidence. That is a somewhat different argument from the one that a view should be conducted at which a demonstration should take place, such as the operation of a derrick, which demonstration would become part of the evidence. Rather, the submission, as I understand it, is not that a view of the ship should be undertaken for the purposes of enabling a demonstration of some description, but rather that the whole ship should physically be part of the evidence.

I will deal first with the issue of the view of the ship which is proposed for the purpose of better enabling the jury to understand the evidence which is put before it. First, it must be observed that there is a substantial quantity of secondary evidence including video tapes of the ship at sea, numerous photographs of various parts of the ship, plans of its layout and other documents which relate to the ship. I observe that a video tape was taken of the ship on 20 April 2003 whilst it was in operation and after it had been seized by the Australian Navy. Video tapes were taken throughout the search of the ship on 21, 22 and 23 April 2003. A video tape was taken of the lighting of the ship at night on 29 April 2003. Video tapes were taken of the layout of the ship on 3 July 2003. In addition, there are witnesses such as the marine surveyor, Trevor Cosh, available to give evidence about the condition in which the ship was found and about the video tapes and photographs which have been taken. Trevor Cosh has provided a statement relating to his examination of the ship on 23 April 2003 for the purpose of producing a general condition report.

Thus the present situation is that there is a substantial quantity of secondary material to assist the jury in understanding the evidence to be given about the layout and state of the ship at the time of its apprehension. Whilst I accept that a view of the ship may assist the jury with an understanding of the size and dimensions of the ship and special aspects of matters which are the subject of video tape, photographs and plans, the first question to be decided is whether, in the proper exercise of my discretion, the jury should be taken to Sydney to view the ship at some time next year for the purposes of better understanding the evidence to be given before them. It is apparent that such an undertaking would not be without significant cost and inconvenience. There is the cost of airfares for the jury of 15, and the jury keepers and others to attend Sydney. A view by a jury would take at least some hours and fairness, in my view, would dictate that the jury be accommodated in Sydney overnight. The factor of cost and inconvenience is relevant[3]. However, that is not the only factor of significance.
[3]See Tito v Waddell [1975[ 3 All ER 997 at 1001 and R v Delow (1992) 29 NSWLR 29 at 34.

Notwithstanding that a view of the ship may provide some assistance to the jury, with a greater understanding of other relevant dimensions, in particular the size and dimensions of the ship there are obvious practical issues which arise in relation to the proposal to take a jury of 15 persons to Sydney. They would have to be transported by small boat to a “Jacobs ladder”, and then ascend to the deck of the ship whereby they would then walk through the many narrow corridors of the ship, climbing and descending many stairways in circumstances which my viewing of the ship revealed to be far from safe.

The stairways of the ship are steep and there are numerous objects littered around corridors, rooms and other parts of the ship. Although it would be necessary for all members of the jury to wear safety helmets, there are areas in the ship where headroom is extremely limited. I would have real concerns about the practical safety of taking a jury of men and women of unknown age, state of health and disability throughout the ship, if the ship, as it would do, remained in a state similar to that in which I observed it. I accept that the cost and inconvenience of such a venture would not be of overwhelming relevance if there was a real necessity for the jury to have such a view in order to understand the evidence and/or if there was a risk that the accused would not be able to have a fair trial without the jury having such a view. In such circumstances such practical difficulties would have to be overcome. However, in circumstances where there is substantial secondary evidence the practical difficulties to which I have referred are obvious and are a relevant matter in the consideration of the appropriate exercise of my discretion. Furthermore, there is the issue that despite my conclusion that the basic layout and structure of the ship remains unaltered from the time at which the offences are alleged to have occurred there has been significant interference and changes effected to the ship in a number of ways by the course of investigation and by the continuing effect of deterioration.

A further concern arises in my mind in relation to the proposed view. My own view of the ship revealed the difficulty in keeping a substantial group of people together at one time. No doubt it would be possible to keep the jury of 15 together as a group whilst on the deck of the ship, but it would not be possible for the jury and their keepers and anyone else who might need to be present for purposes of safety and direction, to remain together as a group in all parts of the ship. In my view, in such circumstances, there would be a real risk of jurors engaging in detective work of their own and conducting investigations of their own which went well beyond the purposes of the view and engaging in inappropriate speculation. As Priestly JA said in R v Delon[4]:

“One thing the judge must consider is the possibility of the view’s being misused. A view is a complicating feature of a trial. There will be occasions when it will be helpful for a jury in understanding the evidence and the advantages of that will in the circumstances of a particular case outweigh the difficulties and the dangers. On other occasions it will not.”

[4](1992) 29 NSWLR 29 at 34.

The ship is a complex structure. It is not simply a case of the jury looking at the scene of an accident or indeed even looking at the scene in which a specific incident such as a serious assault or a murder has taken place. As I understand it in this case, sophisticated arguments will be advanced in relation to the possible knowledge or lack of knowledge by the accused persons about a substantial number of matters. In such circumstances, it does not appear to me to be appropriate to have a view of a complex structure which will be difficult to control adequately without creating the risk of inappropriate speculation by members of the jury. This becomes all the more apparent when I am entirely satisfied that competent counsel can cross-examine witnesses who will be led on behalf of the Crown, and demonstrate clearly the issues which they seek to elucidate, and which I have no doubt can be understood clearly by the jury on the basis of the secondary evidence available.

In the appropriate exercise of my discretion, I conclude that the application for the conduct of a view should not be granted. That is, however, not to say that more secondary evidence should not be permitted to be obtained. For instance, when I undertook my view, Mr Lewis of counsel, who appears for Mr Wong, requested that there be conducted a demonstration of the operation of the derrick. Should Mr Lewis want a video tape to be prepared of the operation of the derrick, it is apparent, in my view, that the prosecution should assist in that regard. Likewise, if other members of the crew seek that further photographs and/or video tapes and/or plans and/or charts be provided then, within the bounds of reasonableness that should be done. In particular every endeavour should be made to ensure that video tape which demonstrates clearly the size and complexity of the ship structure is available.

The Retention of the Ship as an Exhibit

I turn now to the second aspect of the application which is for the tender of the ship as part of the evidence before the jury.

The submission made by the legal advisers to the crew and to Wong submit that it will be (or may eventuate to be) an abuse of process to proceed “in the absence of a central exhibit”. In the written response to the prosecution, and AFP submissions, the crew through their legal advisers submit that “Destruction or disposal of the vessel, at this point in time, may give rise to an application for a stay of the proceedings … on the ground of extreme prejudice or irreparable unfairness.”

Obviously, the suggestion that any irreparable unfairness might occur to the accused by the failure on my part to order the retention of the ship is a matter of concern and it was for that reason that I determined not to make any decision in relation to this issue until all pre‑trial issues were identified. The pre-trial issues of which there are over 50 in number, have now been identified and most of them have been argued. Nothing has arisen in the pre-trial issues which have been identified and which leads to the conclusion that irreparable unfairness is likely to arise by reason of the failure to order the retention of the ship as an exhibit. That of course is not to say that in the course of the trial some issue which may possibly require evidence about a particular part of the ship or about a particular part of its equipment to be given may not arise. However, in my view that is an argument to ensure that there is satisfactory secondary evidence available in terms of plans, an inventory of equipment, videotapes and photographs, and other evidence, rather than an argument that the ship should be retained.

There is significant cost being incurred by the taxpayer in the present retention of the ship. In effect the argument of the crew is that the ship should be retained so as to ensure that any evidentiary issue which might possibly arise in the trial can be answered or dealt with by physical inspection of the ship. The corollary of this is that the ship would require to be retained for the length of the trial and perhaps pending appeal in case of re‑trial. I do not accept that the ship is a “central exhibit” as submitted by Mr Lewis on behalf of Wong. It was not exhibited before the magistrate at committal. Certainly it is the place at which certain significant events occurred, but relevant secondary evidence is available and if need be can be obtained. This is not a case of destruction of an exhibit such as in Holmden v Bitar[5] where the exhibit was destroyed within days without giving the accused any opportunity to inspect it. It is clear that the law does not require chattels or physical defects to be tendered in court to render such evidence as to their nature admissible. As Viscount Caldecote CJ said in Hocking v Alquist[6]:

“In my judgment, it is much too late, even if it was ever possible, to suppose that evidence of the nature of chattels cannot be given by witnesses who have seen them and speak to their condition.”

[5](1987) 75 ALR 522.

[6](1944) 1 KB 120 at 123 – 124.

In making that statement Viscount Caldecote CJ rejected an argument that “whether the article in question was a coat or a battleship the best evidence of it would be its production.”[7]
[7]At p.122.

Furthermore, a sense of reality has to be applied to the issue now before the Court. As Smart AJ said in R v Roberts[8]:

“An accused should not proceed on the basis that the use of assets of others will be frozen until a trial is held … “.

[8](1999) 106 A Crim R 67 at 73.

In the case before me, a lengthy committal has now been held. All legal aid issues have been resolved. More than two weeks have been spent in arguing numerous pre‑trial issues. Wong is represented by the same counsel who appeared for him at the committal and the Master Song is at present represented by Mr Faris QC who appeared for him at the committal.

I am confident that counsel for the crew and Wong have now had ample opportunity to take instructions and to consider the cases against their respective clients and are in a position to obtain such evidence, or to request the prosecution to obtain such video tapes, photographs, plans as are required to ensure that their clients receive a fair trial.

In my view, it is not necessary to achieve a fair trial for me to make an order for the retention of the ship as an exhibit at this time. Of course, as in relation to the issue of the view, the prosecution and the AFP must ensure that nothing is done to the ship which would prevent the accused from obtaining such further evidence as they may think appropriate, by way of investigation, photographs, video tapes or otherwise.

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[2004] VSC 482

6 December 2004