R v Choi (Pong Su) (No 14) - [2005] VSC 50

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 HEARING:	2 February 2005
DATE OF RULING:	22 February 2005
CASE MAY BE CITED AS:	In the Matter of the Pong Su (Ruling No. 14)
MEDIUM NEUTRAL CITATION:	[2005] VSC 50

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Champion SC with Mr M.P. Cahill	The Solicitor for the Commonwealth Office of Public Prosecutions
For Yau Kim Lam	Mr G. Meredith	Tony Danos
For Chin Kwang Lee	Mr A. Shwartz	Halikopoulos Lawyers
For Ta Song Wong	Mr T. Lewis	Lethbridges
For Dong Song Choi	Mr J. O’Sullivan	Galbally & O’Bryan
For Man Sun Song	Mr P. Faris, Q.C. with Mr I. Hayden	Ellinghaus & Lindner
For Man Jin Ri	Mr N. Papas	Slades & Parsons
For Ju Chon Ri	Mr S. Russell	Leanne Warren & Associates

HIS HONOUR:

On 27 January 2005, Mr Champion of Senior Counsel on behalf of the prosecution, informed me that the Australian Federal Police were in possession of three statements, the full contents of which had not been provided to those representing the accused men. I was then provided with three documents which had deletions from them including, in particular, the deletion of the names of the persons who had made the statements. Earlier, counsel for the accused had been provided with copies of the documents identical to the ones produced before me.

The first statement, dated 8 December 2004, reveals that it was made by a person who had been a chief mate on a vessel sailing in North Korean waters and who had been a member of the Korean Workers Party previously, and who had knowledge of practices existing within the maritime industry of North Korea. The identity of that person and any material that would identify him had been excised from the document provided to me.

The second document, dated 9 December 2004, was a statement provided by a person who had sailed in North Korean waters and had been part of the North Korean maritime industry and who had knowledge about aspects of the workings of that industry. Likewise the identity of that person and any material that would identify him had been excised from the document provided to me.

The third of the statements provided to me contains no content at all save for the jurat, which of course had the name of the person who had made the statement deleted.

Mr Champion informed me that he was advising me, and counsel for the accused men of the existence of the statements in order to comply with his duty as a prosecutor to ensure that all relevant material known to him was identified and so as to enable those advising the accused men to take such steps as they…

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.

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Details

Case: [2005] VSC 50
Decision Date: 22 February 2005

CaseChat Overview and Summary

In the Supreme Court of Victoria, Kellam J heard the case of The Queen v Yau Kim Lam, Chin Kwang Lee, Ta Song Wong, Dong Song Choi, Man Sun Song, Man Jin Ri, and Ju Chon Ri. The defendants were charged with various offences related to the smuggling of heroin on board the vessel Pong Su. The key issue before the court was whether three statements obtained by the Australian Federal Police should be disclosed to the defendants. The prosecution argued that public interest immunity prevented the disclosure of the statements.

The court considered the legitimacy of the forensic purpose behind the disclosure of the statements and whether this was outweighed by the public interest in maintaining immunity. The first two statements contained information relevant to the roles and authority of the accused on board the ship, and the prosecution agreed that the makers of these statements should be called as witnesses. The court found that the public interest in protecting the identity of the statement makers outweighed the forensic purpose of the statements. The third statement, which contained virtually nothing but the jurat, did not reveal any legitimate forensic purpose and was also subject to public interest immunity. The court directed that the third statement be returned to the Australian Federal Police but retained in a safe place until the final disposition of the case.

The court's decision balanced the need for transparency in the legal process with the protection of individuals who could be at risk if their identities were revealed. The court's ruling ensured that the defendants had access to relevant information while also safeguarding the safety of the statement makers.

Orders