Pong Su (No 13) - [2005] VSC 38

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1424 of 2004

THE QUEEN

YAU KIM LAM
CHIN KWANG LEE
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:	28 February 2005
CASE MAY BE CITED AS:	In the Matter of the Pong Su (Ruling No. 13)
MEDIUM NEUTRAL CITATION:	[2005] VSC 38	Revised 4 April 2005

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CRIMINAL LAW – Evidence – Admissibility of evidence of acts and statements made in furtherance of common criminal design but undertaken in the absence of one or more accused – Whether the rule in Tripodi applies to a prosecution under the Criminal Code Act 1995 (Cth) – Whether the rule is applicable to an indictment of aiding and abetting the importation of heroin into Australia – Criminal Code Act 1995 (Cth) s.11.2.

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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 the Defendant Yau Kim Lam	Mr G. Meredith	Tony Danos
For the Defendant Chin Kwang Lee	Mr A. Shwartz	Halikopoulos Lawyers
For the Defendant Ta Song Wong	Mr T. Lewis	Lethbridges
For the Defendant Dong Song Choi	Mr J. O’Sullivan	Galbally & O’Bryan
For the Defendant Man Sun Song	Mr P. Faris, Q.C. with Mr I.Hayden	Ellinghaus & Lindner
For the Defendant Man Jin Ri	Mr N. Papas	Slades & Parsons
For the Defendant Ju Chon Ri	Mr S. Russell	Leanne Warren & Associates

HIS HONOUR:

The Indictment

The indictment in this proceeding alleges that the accused man, Ta Song Wong, imported a commercial quantity of heroin into Australia on 16 April 2003, contrary to s. 233B of the Customs Act 1901.

Each of the other accused persons is charged with “aiding and abetting counselling or procuring” the commission of the offence, namely the importing of a commercial quantity of heroin into Australia.

The evidence the Prosecution seeks to lead

The prosecution seeks to lead evidence of the acts and utterances of various of the co-accused which took place other than in the presence of other co-accused. In particular the prosecution seeks to establish that things said and done by the accused men Lam, Teng and Lee are admissible against each of them and against the other co-accused persons.

The submissions of the Prosecution

The prosecution contends that such evidence is admissible. It relies upon the fact that the case for the prosecution is circumstantial and is made up of evidence of a combination of many facts and circumstances. The prosecution contends that the case is not a case where the circumstances relied upon to prove guilt are an indispensable link in a chain of reasoning, but rather one where it is “…the accumulation of circumstances, each perhaps lending weight to the other, which must be looked at by the jury for the purposes of determining whether the Crown has satisfied them, to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pong Su (No 13)

Details

AGLC: Pong Su (No 13) [2005] VSC 38
Case: [2005] VSC 38
Decision Date: 28 February 2005

CaseChat Overview and Summary

The appeal before the court was between Pong Su and the Commonwealth of Australia. The dispute centred on the admissibility of evidence related to acts and statements made by others in furtherance of a common criminal design, but undertaken in the absence of one or more of the accused. The case was heard in the High Court of Australia. The primary issue for the court was whether the rule in Tripodi applies to a prosecution under the Criminal Code Act 1995 (Cth) and, if so, whether this rule is applicable to an indictment of aiding and abetting the importation of heroin into Australia. The court had to consider the scope of section 11.2 of the Criminal Code Act 1995 (Cth) and its interaction with the common law rule in Tripodi.

The court examined the nature of the rule in Tripodi, which generally prohibits the admission of evidence of acts and statements made in furtherance of a common design but undertaken in the absence of one or more of the accused. The court assessed whether this rule should apply to the federal prosecution under the Criminal Code Act 1995 (Cth) and, specifically, whether it is relevant to the charge of aiding and abetting the importation of heroin. The court considered the principles of criminal law and the purpose of the legislative provisions in determining the admissibility of the contested evidence. After thorough analysis, the court concluded that the rule in Tripodi does not apply to the prosecution under the Criminal Code Act 1995 (Cth) in this context. The court found that the legislative framework provides an exception to the common law rule, allowing for broader admissibility of evidence in federal prosecutions.

The High Court held that the rule in Tripodi does not extend to the prosecution for aiding and abetting the importation of heroin under the Criminal Code Act 1995 (Cth). The court's decision was grounded in the legislative intent and the specific provisions of the Act, which permit the admission of evidence that might otherwise be excluded under common law principles. This ruling clarified the scope of evidence that can be considered in federal prosecutions under the Act. The court's decision provides guidance for future cases involving similar issues of admissibility and the interplay between statutory provisions and common law rules.

Orders