R v Choi (Pong Su) (No 17)
[2005] VSC 51
•7 March 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1424 of 2004
| THE QUEEN |
| v |
| 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: | 7 March 2005 | |
CASE MAY BE CITED AS: | In the Matter of the Pong Su (Ruling No. 17) | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 51 | |
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CRIMINAL LAW – Evidence – Whether evidence that persons accused of aiding and abetting the importation of heroin into Australia entered Australia in possession of false passports and other false documents is admissible – Propensity – Probative value – Prejudice.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Champion S.C. with Mr M.P. Cahill | The Solicitor for the Commonwealth Office of Public Prosecutions |
| For Yau Kim Lam | Mr G. Meredith | Tony Danos |
| For Ta Song Wong | Mr T. Lewis | Lethbridges |
| 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:
The prosecution case is that the accused man Lam entered Australia on 27 March 2003 with a false Malaysian passport, and whilst in Australia used a false international driving permit. The prosecution case against the accused man Lee is that he likewise entered Australia with a false Singaporean passport and whilst in Australia was in possession of a false international driver’s permit.
The prosecution seeks to lead evidence to prove that the passports and driver’s licences used by each of Lam and Lee are false.
The evidence in relation to Yau Kim Lam
The evidence is that Lam entered Australia with a Malaysian passport number A12757605. There is evidence that an application for a Malaysian passport was made by a Lam Yau Kim to Malaysian immigration authorities on 3 March 2003 and that a Malaysian passport number A12757605 in that name was issued on that date. This passport, was found in a blue Ford Focus being driven by Lam at the time of his arrest when that vehicle was searched by police on 16 April 2003. The evidence is that the photograph originally placed in the passport by Malaysian authorities has been replaced with a photograph of the accused man Lam. The passport has thus been falsified, the prosecution contends. Furthermore, there is evidence that upon the search of the Ford Focus motor car a Malaysian identity card number 700 528-02-5087 was found. That identity card bears the name of Lam Yau Kim. There is evidence that an identity card bearing that number and in that name was used to support the application made for the issue of the Malaysian passport referred to above. The evidence is that the identity card found in the Ford Focus motor car is identical with the identity card used to support the application for the Malaysian passport except for one thing. That is that the identity card found by police in the Ford Focus bears a photograph different from the one used to support the passport application. The photograph on the identity card found in the Ford Focus motor car is that of the accused man Lam whereas the photograph upon the identity card used to support the issue of a Malaysian passport in the name of Lam Yau Kim on 3 March 2003 is of an unknown but different person.
In addition, a document purporting to be an “International Driving Permit” issued as a “United Nations Operators licence and permit” issued on 5 April 2003 in the name of Lam Yau Kim and bearing the photograph of the accused man Lam was found in the Ford Focus. The document states that the country of the user is Malaysia. There is, as I understand it, no direct evidence that this is a false document but the prosecution contends that the jury would be entitled to infer that it is a false document from the fact that there is evidence that when Teng in the company of Lam took steps to hire a Tarago vehicle in Geelong on 31 March 2003, Teng in Lam’s presence enquired as to how Lam could obtain a drivers licence. Furthermore, there is evidence which permits an inference that Lee brought to Australia a drivers licence which was given to Lam and that the licence bears the date of issue of 5 April 2003 by which time Lam was in Australia.
Evidence in relation to Chin Kwang Lee
It is alleged that Lee used a false Singaporean passport, with which he obtained an entry visa to enter Australia on 9 April 2003. The passport purports to have been issued on 21 June 1994. This passport was found on the accused man Lee by police on 16 April 2003. Evidence from the owner of the passport, the real Chin Kwang Lee, demonstrates that the passport was issued to him but stolen from his car on 1 October 1999 and now contains a photograph that is not of him. That this passport has been falsified in that manner does not appear to be in dispute.
In addition, there is evidence that fingerprints obtained by the Federal Police from the accused man Lee have been compared with fingerprint material obtained from the Singapore Criminal Records Office. There is evidence that the fingerprints obtained by the Federal Police from Lee are the same as fingerprint records in Singapore in relation to a person by the name of Wee Quay Tan.
Furthermore, there is evidence that the accused man Lee was found by police to be in possession of a United Nations international drivers permit similar to that found in relation to Lam, save that it bore the name of Chin Kwang Lee and purported to have been issued on 6 January 2003.
The prosecution submissions
The prosecution submits that the use of false passports and other false documents by Lam and Lee gives rise to the inference that both men used a false identity to enter Australia, and to conduct their affairs in Australia. Such conduct is said to be inconsistent with their being engaged in an innocent venture. The prosecution submits that the prejudicial nature of the evidence is outweighed by its probative value. The prosecution submits that it does not seek to rely upon the false documents as evidence of bad character or as evidence demonstrating a propensity to commit criminal offences on the part of the accused men. Rather the prosecution relies upon the evidence of the false documents to show that Lam and Lee acted with subterfuge and in a manner inconsistent with carrying out an innocent venture. The prosecution submits that appropriate judicial directions as to the permissible use of the evidence would cure what is said to be the prejudicial effect arising from the use of the evidence. The prosecution submits that the evidence of the false documents and the fact that the two men used false identities is probative as it allows the jury to be satisfied of the following matters:
(i)Lam and Lee used false documents as a means and method by which they could carry out the offences;
(ii)Lam was able to arrange a credit card in a false name by reason of his documents, thus contributing to the establishment of a document and false identity that might be accepted in Australia;
(iii)Lam and Lee acted with subterfuge, which is consistent with the carrying out of a highly criminal and dangerous activity;
(iv)the evidence is an indication that the criminal activity that was intended to be carried out was of such a level of seriousness as to justify the creation of a new identity;
(v)Lam and Lee used false documents and a false identity to increase the likelihood that they could conceal their true identities and evade apprehension after the commission of the offences;
(vi)Lam and Lee acted in a manner inconsistent with being engaged in an innocent venture.
The submissions on behalf of Lam
Mr Meredith of Counsel for Lam submits that the evidence of the entry of Lam into Australia by use of a false passport and the possession by him of a false driver’s licence should be excluded in the exercise of my discretion, because the probative value of the evidence is slight, while the prejudicial effect of the evidence could be “very significant”. Mr Meredith contends that inevitably, despite any judicial direction that might be given, the jury would use the evidence of the false passports and other documents to reason that the accused man Lam had a propensity to commit criminal offences.
Insofar as the prosecution contends that Lam and Lee used false documents as a means and method by which they could carry out the offence, Mr Meredith submits that such a proposition is apparent only if one starts from a presumption of guilt. He submits that Lam’s possession of the false documents and use of the false identity could be for reasons not associated with the commission of the offence upon which he is now indicted. Likewise he contends that the obtaining of the credit card by Lam may have been for reasons other than to contribute to the establishment of a false identity. For example, he submits that the credit card may have been obtained in order to gain the necessary funds for living and travel expenses.
As to the assertion of the prosecution that the use of the false documentation by Lam is consistent with the carrying out of a highly criminal and dangerous activity, Mr Meredith submits that its use is consistent also with a number of other reasonable hypotheses. Likewise as to the submission of the prosecution that the evidence is an indication that the criminal activity intended to be carried out was so serious as to justify the creation of a new identity, he submits that the documentation’s creation and use could be for a number of other reasons. He contends that the argument advanced by the prosecution that Lam used false documents and a false identity to increase the likelihood that he could conceal his true identity and evade apprehension after the commission of the offence is “highly speculative” and does not follow necessarily from the evidence.
Furthermore, he submits that the evidence does not necessitate the conclusion that the accused Lam acted inconsistently with being engaged in an innocent venture. He submits that the false documents facilitated the entry of Lam into the country, but the purpose of that entry is a “separate matter” and the fact that Lam entered the country using false documentation has nothing to do with the proof of the offences with which he is charged.
Mr Meredith submits that the limited probative force of the evidence is demonstrated by the fact that, in his submission, the strength of the Crown case against Lam arises after his arrival in Australia, and that evidence of his use of false documents adds nothing to that evidence.
Furthermore, Mr Meredith submits that inevitably the jury will compare the documentary evidence relating to Lam with the documentary evidence relating to Lee. He submits that this comparison will lead the jury to conclude that both men used false passports and both men possessed false United Nations driving licences. Thus, he submits, the jury will “proceed from that to lump both men in together and to, in effect, use the similarities of the false documentary evidence virtually as a form of similar fact evidence between the two”. Mr Meredith contends that no judicial direction is capable of ensuring that there is no impermissible use of the evidence.
The submissions on behalf of Lee
Mr Shwartz of Counsel who appears for Lee adopts the submissions of Mr Meredith. However, he submits that there are further additional matters. First, he contends that when the totality of the evidence sought to be led by the Crown is considered in the light of the allegations contained in the indictment, it must be seen realistically that the prosecution is seeking to lead propensity evidence. He contends that the evidence of the false documents adds nothing to the prosecution case. Rather it is the “prejudicial cherry” on the prosecution case.
Furthermore, he contends that there is a considerable gap in time between the arrival of Lee in Australia using the false passport and 16 April 2004 when it is alleged his client aided and abetted the importation of the narcotic goods. He submits that the evidence does not establish that Lee was intending to be a party “to what happened at Boggaley Creek” upon arriving in Australia. He submits that at “its highest for the prosecution there was an encounter” between persons, but an encounter after arrival in Australia. Mr Shwartz contends that the prosecution should not be permitted to rely upon evidence of the use of false documents to enter Australia in relation to prove that Lee was a “participant in the events some weeks later”. He contends that to do so is prejudicial and not probative, but he argues even more strongly that it “virtually amounts to propensity” evidence.
Mr Champion contests the submission made by Mr Shwartz that the prosecution case is “not higher” than that there was an encounter in Australia after the entry of Lee. He submits that the evidence of conversations obtained by listening device, together with the evidence of the conduct of the accused men Lam, Teng and Lee in Australia, demonstrate that Lam and Lee were in Australia to commit a serious criminal offence and that evidence that they were undertaking this activity in Australia with the use of false identity documents properly forms part of and is consistent with the circumstantial case that both men were acting in combination in order to assist with the importation of heroin. Insofar as both Mr Meredith and Mr Shwartz contend that the evidence may be used impermissibly to link their respective clients together, Mr Champion submits that the evidence demonstrates that both accused men were linked to each other in combination to act in assisting the commission of the offence of importing heroin and that evidence that demonstrates they had such a common object is admissible and probative.
Is the evidence being led as evidence of propensity?
Mr Shwartz contends that the prosecution, despite its contention to the contrary, seeks to lead the evidence as evidence of propensity in such a way that “it is so close as to be indistinguishable from such a use”. Mr Meredith does not argue that the prosecution seeks to adopt propensity reasoning, but rather that the evidence is of such a nature that the jury will inextricably be led to reason that as the accused men entered the country on false passports, and thus must be of bad character or criminal disposition, they were more likely to have engaged in a different form of criminal activity, that is, the important of drugs.
In my view, there is weight in the proposition that the evidence of entry into Australia by use of a false passport does not, by itself, demonstrate inconsistency with being engaged in an innocent venture, or demonstrate subterfuge consistent with the carrying out of a highly dangerous and criminal activity. As stated above, Mr Meredith contends, without giving any examples, that such conduct could be consistent with other “reasonable hypothesis” and does not necessitate the conclusion that such entry is inconsistent with an innocent venture. One such hypothesis could be in circumstances where a person wishing to escape his own country, could not obtain a legitimate passport, and used a false passport to enter Australia to seek refuge here. Accordingly, in the absence of other material, evidence of the mere entry into Australia by use of false documents could be seen to be evidence of propensity for the purposes of a later but otherwise unconnected prosecution.
Of course, it is apparent that propensity evidence is not limited to evidence of other crimes, but includes evidence of disreputable conduct or bad character.[1] However, the prosecution does not seek to use the evidence as evidence of propensity at all. The prosecution contends that a direction should be given to the jury that the evidence in question must not be used as a reflection of bad character. It submits that the evidence is admissible as part of its circumstantial case that Lam and Lee entered Australia, and upon their entry engaged in activities which had the purpose of assisting the importation of heroin into Australia by sea. Bourke’s Criminal Law[2] suggests that, contrary to the view taken by the Court of Appeal in New South Wales in R v Ah,[3] the Victorian Court of Appeal has made it clear that propensity evidence does not lose its character because the prosecution purports to lead the evidence for a different purpose.[4]
[1]See R v Best [1998] 4 VR 603 at 608 per Callaway JA.
[2]Butterworths loose leaf service p.5080-1.
[3](1997) 42 NSWLR 702 at 708-9.
[4]See R v Mateiasevici [1999] 3 VR 113 and R v Mong [2002] VSCA 208.
I accept that in some circumstances the evidence which Mr Meredith and Mr Shwartz seek to impugn could, as they submit, be seen to be in effect evidence of propensity notwithstanding the stated purpose of the admission of such evidence by the prosecution. The issue of whether that is so may be of significance in other cases, but in the circumstances before me and irrespective of whether the evidence is propensity evidence and thus the subject of s.398A of the Crimes Act 1958 (Vic) or otherwise, it appears that the argument comes down to the question of whether the evidence has any probative value, and if so whether the probative value is outweighed by the prejudicial effect of the evidence.
Does the prejudicial effect of the evidence outweigh any probative value?
In consideration of this issue, the conduct of each of the accused men Lam and Lee in entering Australia with false documents cannot be isolated from the events that followed. The prosecution does not seek to prove that an earlier but separate incident is relevant to the matters the subject of the indictment. The evidence against Lam is that he entered Australia on 27 March 2003. In Lam’s case the evidence that he entered Australia under a false name is less clear than the evidence that Lee entered Australia in a similar fashion. However, there is evidence that he did so on a passport which had been falsified as to his photograph. It would be open to the jury to conclude that his identity was, for that reason alone, different from the identity of the person to whom Malaysian authorities had issued the passport. Upon arrival in Melbourne two days later Lam, in the company of Teng, visited Geelong and was driven to various locations over the next three days before both men finally attended upon Europcar in Geelong and hired a Tarago. That day Lam purchased a set of binoculars and a camera in Geelong, which camera was identical to one later found in the room occupied by Lam at Crown Towers Hotel. Lam booked into the Sundowner Motor Inn under the name of Lau Yam Kim for the period 31 March 2003 to 2 April 2003 which bookings were extended to 8 April 2003.
The accused man called Lee arrived in Melbourne on 9 April 2003. The same day two mobile telephone services were opened, one of which was opened in the name of Andy Tan. There is evidence from which the jury could conclude that one of those telephone services was used by Lee. Throughout 13 April 2003 Lee was observed in the company of Teng. On 14 April Lee was seen to be in the company of Teng and conversations of an incriminating nature were recorded by listening devices.
There is evidence that on 15 April 2003 Lee registered under the name of Andy Lee when he booked a room at the Grand Pacific Hotel in Lorne.
There is evidence that on 15 April 2003 Lam paid for a return travel ticket to China to leave Australia on the morning of 16 April 2003.
Finally, there is the evidence which may lead the jury to accept that after numerous telephone contacts between Lam, Teng and Lee they all met at Boggaley Creek at the time that a shipment of heroin arrived by inflatable dinghy upon the shore.
The above extremely brief summary of the activities of Lam and Lee in Australia subsequent to their arrival here is sufficient to demonstrate that their activities were related to the arrival of the Pong Su and the importation of the heroin. There is strong evidence that the name under which Lee conducted his affairs in Australia is false. He used that false name to enter Australia and he continued to use it throughout his time in Australia up until the time when he booked a motel room at Lorne in the name of Andy Lee in the hours before the landing of the heroin on the Victorian shore. The adoption of a false identity by him is an integral part of the circumstantial case against him, and the evidence of the false documents found in his possession is thus admissible as part of that circumstantial case.
The fact that both Lam and Lee had similar but false United Nations Driving Permits is admissible as evidence of their combining together in the enterprise upon which they engaged.
The issue in relation to Lam is perhaps not so clear in establishing that he assumed a false identity. There is no evidence upon which it can be stated categorically that he entered Australia under a false identity, as is the case with Lee. However, the evidence is clear that he used a passport which had been falsified, and that he used an international driving permit which the jury would be entitled to conclude was false. Clearly, the inference is open as part of a circumstantial case that the use of such documents rebuts any suggestion that he was in Australia as an innocent traveller. As Mr Champion points out, had he entered Australia using legitimate documents, his counsel would be entitled to rely upon such evidence in support of the legitimacy of his journey to, and presence in, Australia. In my view, the prosecution is entitled, as part of the circumstantial case, to rebut any suggestion of an innocent purpose to be in Australia and to lead evidence, which in combination with other evidence establishes that the purpose of entry into Australia and the events which took place thereafter was related to the crime which occurred early on 16 April 2003.
The use of the false passports in obtaining entry into Australia is not remote in time or circumstance from the conduct of both Lee and Lam and their involvement in the events leading up to the importation of heroin which is alleged to have occurred early on 16 April 2003.
In my view, the probative value of the evidence of use, and possession, of false documents by Lee and Lam is strong in the context of the whole circumstantial case against them and does in each case outweigh the prejudicial effect. The appropriate exercise of my discretion therefore dictates that the evidence is admissible. Of course it must in due course be the subject of an appropriate direction to the jury to the effect that the evidence must not be used to suggest that either of the accused had a propensity to commit the offence with which they are charged.
It is appropriate to note that although some of the reported authorities dealing with the importation of drugs into Australia make passing reference to the arrival of various persons involved in such crimes by use of false passports, the issue which has arisen before me does not appear to have been considered previously. However, in Leung v The Queen[5] consideration was given by the New South Wales Court of Appeal to the question of the admission of evidence upon the trial of an accused relating to the use of a false passport and travel documents. Such evidence had been admitted without objection at trial. O’Keefe J, in dealing with the issue as to whether evidence of various false documents were admitted in relation to credit only said:
“Evidence concerning the provisional drivers licence, learners driving licence, ANZ access card and certain banking records that were found in the possession of the appellant all in the false name of Ho Moon Kong was admitted without objection in the course of the Crown case. Those documents were circumstantial evidence in support of the offence with which the appellant had been charged, as was conceded by the appellant’s counsel at trial. They were relevant ‘only’ to the credibility of the appellant.”
[5](2004) a Crim R 441 at p.448.
An argument was advanced before the Court of Appeal that even if the evidence was admissible no consideration had been given by the trial judge as to whether the evidence had substantial probative value. O’Keefe J did not deal specifically with this issue as no such submission had been made at trial, but there is no suggestion from reading his decision that he considered that the argument had any substance.
As the question of whether the evidence relating to the fingerprints held by Singaporean authorities which the prosecution contends reveals the true identity of Lee has yet to be argued fully I reserve the issue of the admission of such evidence for further submission.
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