Pong Su (No 4)
[2004] VSC 503
•6 December 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1424 of 2004
| THE QUEEN |
| v |
| TA SONG WONG, MAN SUN SONG AND 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. 4) | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 503 | |
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CRIMINAL LAW – Admissibility of expert evidence – as to quarantine requirements for ships entering the Port of Melbourne – as to matters of good practice in seamanship – as to the operation of a derrick from the deck of an anchored ship.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr J. Champion, S.C. | The Solicitor for the Commonwealth Director of Public Prosecutions |
| For Ta Song Wong | Mr A.R. Lewis | Lethbridges |
| For Man Sun Song | Mr I. Hayden | Ellinghaus & Lindner |
| For Ju Chon Ri | Mr Wraight | Leanne Warren & Associates |
TABLE OF CONTENTS
The evidence of Malcolm John Keen
The submission of the Prosecution
Conclusion as to the admissibility of the evidence of Malcolm Kenneth Keen
The evidence of Richard John Cox
The submission of Mr Hayden
Conclusion
The evidence of Captain Neale Oxley
The submissions of the Prosecution
Conclusion
DRAFT
HIS HONOUR:
Objection is taken by counsel for the Master of the Pong Su, Man Sun Song (“Song”) and by the chief engineer, Ju Chon Ri (“Chon Ri”) against any admission of evidence given by proposed witnesses Malcolm Kenneth Keen and Richard John Cox. In addition, the Master of the Pong Su, together with the accused Ta Song Wong (“Wong”), object to the evidence of Captain Neale Oxley being admitted into evidence.
The evidence of Malcolm John Keen
Malcolm John Keen is a quarantine officer employed by the Australian Quarantine Inspection Service. Currently he is posted to the Australian Customs Service X-ray Inspection Facility located in West Melbourne and is acting in the position of Victorian Wharf and Seaports Manager. He has been employed with Australian Quarantine Inspection Services for five years and ordinarily holds the position of Melbourne Shipping Supervisor. He has provided a statement that in the position in which he is currently acting he is responsible for the oversight of all Australian Quarantine Inspection Service operations with regard to commercial vessels arriving at Victorian seaports. His statement, which appears at p.193 of the depositions, sets out the information which is required to be submitted by the Master of an international vessel prior to the vessel’s arrival at its first Australian port. The information required is to be submitted pursuant to s.27A of the Quarantine Act 1988 within 12 to 48 hours prior to the estimated time of arrival of the vessel at its first Australian port. His statement deposes to the fact that following a request from the Australian Customs Service he conducted a search of all forms currently held by the Australian Quarantine Inspection Service and was able to say that at no time did the Master, crew members or any agent acting on behalf of the Pong Su notify Australian Quarantine Inspection Services by way of the necessary form or by any other means of an intention to berth at any Victorian or other Australian seaport.
In the course of the committal hearing Mr Keen stated that he could not recall a North Korean vessel coming into Port Phillip Bay and he said that in his experience he would expect a foreign vessel to employ a shipping agent. Mr Hayden of Counsel on behalf of Song, submits that the evidence of Mr Keen should not be admitted into evidence because his only experience is in relation to Australian waters and he is not able to give evidence of North Korean shipping customs, habits and practices. Furthermore, Mr Hayden submits that in circumstances where Mr Keen agreed that he had no experience with a North Korean ship and in circumstances where there is other evidence that the Pong Su was the first North Korean ship known to be in Victorian waters for 17 years, the evidence of Mr Keen should not be admitted. It is submitted that insofar as he has experience of expectations of what foreign vessels do when they enter the State of Victoria, that evidence does not apply to a ship from North Korea and thus should not be admitted.
Mr Wraight of Counsel who appears for Chon Ri adopts the submission of Mr Hayden.
The submission of the Prosecution
The prosecution submits that it is clear that Mr Keen has the expertise to give evidence as to the quarantine requirements of ships entering Port Phillip Bay and is able to give evidence of his expertise and experience in relation to the invariable practice of foreign ships entering the port. The prosecution submits that the issue raised by Mr Hayden is not a matter of admissibility but rather one of weight.
Conclusion as to the admissibility of the evidence of Malcolm Kenneth Keen
In my view, Mr Keen does have considerable experience and knowledge of the provision of quarantine services in the State of Victoria and in relation to vessels entering Port Phillip Bay. I am satisfied that by reason of this experience as to the requirements of the Quarantine Service for ships to enter Port Phillip Bay and his experience of what I understand to be the invariable practice of foreign ships entering the Port of Melbourne the evidence of Mr Keen is properly admissible. The fact that he has no experience of a North Korean vessel entering Port Phillip Bay and the fact that the Pong Su is a North Korean vessel is in my view a matter of weight about which Mr Keen can no doubt be cross-examined but is not related to a question of admissibility. Accordingly his evidence is admissible.
The evidence of Richard John Cox
By a statement dated 18 June 2004 and commencing in the depositions at p.3804, Richard John Cox has deposed to being the Harbour Master of the Port of Hastings which fulltime position he has held for seven years. Prior to that he was employed as the Assistant Harbour Master at the Port of Hastings for seven years and before that he worked for 15 years on oil rig supply vessels in Bass Strait, on the North West Shelf and South East Asia. Prior to that he worked for the British India Steam Navigation Company for ten years, having commenced his seagoing career at 16 years of age. He was born in April 1945. He worked on routes out of the UK to Africa and the far east and attained the rank of Chief Mate whilst at sea. In his current position he is responsible for the day to day operations of the Port of Hastings. He has been provided with a considerable amount of information about the Pong Su and has been provided with information relating to the translation of the deck log and the engine log. The information that has been provided to him is that the deck log asserts that at 0750 on 15 April 2003 the engine was out of order and that the log showed it was still out of order at 1230 hours in “four shackles” in water. The deck log is said to have stated that the engine remained out of order at 0440 hours on 16 April 2003 and was not started until 0830 that day. He was informed that the engine log contained statements that the engine was stopped on 15 April, that a cylinder and exhaust valve were changed and that the engine was started at 0950 on 16 April 2003. Mr Cox has been provided with information relating to observations of sea conditions made at Cape Otway between 15 and 16 April 2003. He has examined the relevant chart for the south coast of Victoria from Cape Nelson to Cape Schank and he expresses the following opinions.
· If he was Master of the vessel he would have moved further away from the coast given his position and the prevailing weather conditions whilst ascertaining the actual problem with the engine.
· He would be reluctant to actually stop the ship in the circumstances then pertaining.
· If it was necessary to stop and change the cylinder head he would look for a place to stop and would consider where a safe haven might be found.
· If he was Master of the ship he would look to reaching Port Phillip Bay by isolating the affected cylinder and reducing speed.
· From viewing the chart and the point at which it is said the vessel repairs took place, he concludes that one would stop at that point only if it was necessary to repair the engine immediately. Furthermore, he considered that to have had four shackles of anchor chain out in that position was insufficient. This suggests to him that the vessel was anchored in shallower water than was indicated on the chart.
The submission of Mr Hayden on behalf of the Master of the Ship
Mr Hayden submits that the evidence of Mr Cox should not be given in the form of the statement. He submits that Mr Cox is giving expert evidence and that he should qualify himself with regard to his experience and that he should give evidence about his experience as it relates to the facts.
Mr Cahill of Counsel in his response on behalf of the prosecution acknowledges that there is weight in the complaint made by Mr Hayden about the form in which Mr Cox’s evidence is given.
Conclusion
I do not at this stage intend to rule on the admissibility of the evidence to be given by Mr Cox other than to observe that it appears to me that he does have sufficient expertise and knowledge to entitle him to give his opinion about appropriate standards of seamanship and as to what one would expect of a competent Master consistent with such appropriate standards of seamanship and practices. I am satisfied that such an area of expertise is a field of specialised knowledge. In my view, the complaint made by Mr Hayden as to the form of the evidence contained in the statement prepared by Mr Cox has weight, but that does not make his evidence inadmissible. The statement as presently drafted however, does not sufficiently clarify the basis upon which the facts he relies upon in expressing his opinion are related to the opinions he expresses in relation to what action a competent master of a ship would have taken in all the circumstances.
The evidence of Captain Neale Oxley
By statement dated 12 December 2003, appearing at p.3794 of the depositions, Captain Neale Oxley deposes that he is a marine pilot, currently employed as the Managing Director of Port Phillip Sea Pilot Pty Ltd. He is 55 years of age and has been employed in the maritime industry since 1965. He deposes to extensive knowledge of the maritime industry in Australia and throughout Asia, particularly in Japan and the Philippines and that he has attained the title of Captain after having been in command of ships. As Managing Director of Port Phillip Sea Pilot Pty Ltd his duties include all aspects of marine pilotage and ship handling. He has been asked by Federal Police to express his opinion in relation to a number of matters about the Pong Su and in particular, in relation to the operation of a derrick and the launch of a small boat from the deck of the Pong Su.
Objection is taken by Mr Hayden of Counsel on behalf of Song in relation to the proposed evidence of Oxley. Mr Hayden submits that although he does not object to the statement for the most part, the statement of Captain Oxley about the operation of the derrick is irrelevant to the facts of the case. In particular, Mr Hayden submits that the evidence of Captain Oxley as to the best practice of the operation of the derrick is irrelevant in circumstances when he is not familiar with the operation of a Korean ship.
The submissions of the Prosecution
It is submitted that the nature of the operation of the derrick on the Pong Su is directly relevant to the issue of what occurred on the Pong Su when it stopped at Boggaley Creek and that Captain Oxley is entitled to give evidence as to the manner in which the derrick would be operated if it was used to launch an inflatable dinghy.
Conclusion
Clearly Captain Oxley is well qualified by reason of his many years maritime experience and by reason of being a captain of a ship to give expert evidence as to the manner in which a small boat might be launched from a ship by use of a derrick or otherwise. It is of course a matter entirely for the jury as to whether or not, in all the circumstances, they accept as the Crown submits that an inflatable boat was launched from the Pong Su on 15 April 2003. It is a matter entirely for the jury if they are satisfied that an inflatable dinghy was so launched as to whether it was launched by means of a derrick on the ship or otherwise. However, I conclude that a jury is entitled to the benefit of expert evidence as to the use of a derrick, the manner of its operation and the difficulties or otherwise of its operation in the weather and other circumstances which are proved before the jury to have pertained at the time that the Pong Su was anchored off Boggaley Creek. Captain Oxley has knowledge and expertise in a field of specialised knowledge which enables him to express such an opinion. His evidence is admissible.
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