R v Choi (Pong Su) (No 18)
[2005] VSC 58
•8 August 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1424 of 2004
| THE QUEEN |
| v |
| 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: | 8 August 2005 | |
CASE MAY BE CITED AS: | In the Matter of the Pong Su (Ruling No. 18) | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 58 | |
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CRIMINAL LAW - Handwritten documents found on ship – Whether admissible against the accused person who occupied the cabin where the documents were found.
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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 Dong Song Choi | Mr J. O’Sullivan | Galbally & O’Bryan |
| For Man Sun Song | 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:
I am required to determine whether or not a number of miscellaneous documents found during a search of the Pong Su by Australian Federal Police four days after its apprehension by the Australian Navy are admissible.
The documents in question were found in a cabin of the Pong Su which is known as “the cupboard room”. The prosecution contends that there is evidence, which if accepted by the jury, will demonstrate that the cabin was occupied by Dong Song Choi, the political officer of the Pong Su. An internal telephone directory found upon the ship has telephone No. 7 recorded as being that of “the political vice captain.” The telephone that answers to No. 7 is situated in the cupboard room.
The evidence in relation to the telephone system on the Pong Su is that five persons only were listed upon the telephone list, those being the Captain, Vice Captain, Chief Engineer, “Political Vice Captain” and the “Head of Communication”. The prosecution contends that the Political Vice Captain is a reference to the political secretary Choi and that evidence of the occupation of the cupboard room by him demonstrates that he was a person of authority upon the ship.
It is in this context that the prosecution argues that a number of documents found in the cupboard room of the Pong Su are admissible as part of the circumstantial case against the political secretary, and as part of the circumstantial case that the Pong Su had no legitimate reason to be in Southern Victorian waters. I turn to consider the documents in question.
The Torn Weather Maps
A search of the Pong Su conducted by police on 22 April 2003 revealed ten pieces of torn paper in a rubbish bin in the cupboard room which was situated on the “boat deck” of the ship. The paper was thermal fax paper. Subsequently, each of the ten pieces of paper was analysed for fingerprints. A total of six fingerprints were found upon the documents, one of which is alleged to be that of the accused man Choi, and four of which are not capable of being identified. A further fingerprint has been identified as being that of the radio officer of the Pong Su who has now returned to North Korea.
One piece of paper was a single strip of paper. The single strip of paper contains a handwritten note which has been translated from the Korean language into the English language as being “arrived 1700 hours on the 15th”. The fingerprint belonging to the accused man Choi was found on that piece of paper (“the fingerprint document”)[1].
[1]Hand up Brief p 4515 - 6
The remaining nine pieces of paper were reconstructed by police and found to form two cohesive documents. On one side of each such document is a weather map of Australia. The documents appear to be weather information obtained by the ship’s personnel by facsimile. On the reverse side of each document are notes handwritten in the Korean language.
One of the documents which was reconstructed from two of the remaining pieces of torn paper (‘the two piece document”) contains handwritten notes written in Korean which have been translated into English as “We will deal with the landed crew, move quickly towards east No. 1 route” and the words “Arrived at 1700 hours”.[2]
[2]Hand up Brief p 4517 - 8
The remaining document which has been reconstructed from seven pieces of torn paper (“the seven piece document”)[3] contains written statements which have been translated from Korean into English as follows:
[3]Hand up brief p 4519 - 20
“Present Position
At S34.02 E15:13
Due to engine trouble, the ship is under repair.
When we enter the port, make the representative of our shipping company to be there.
Authority who manages the ships, although it (missing word) completely.
It is seen that our ship is connected to a smuggle vessel.
The relevant authority says that two people who got off our ship …
One was arrested and he said he speaks Chinese.
Find out what this means.”
It is apparent from the contents of the seven piece document that it purports to have been written after the events at Boggaley Creek took place.
Objection is taken to the admission into evidence of each of the documents by Mr Hayden of Counsel for the Master of the Pong Su, Man Sun Song, and by Mr O’Sullivan of Counsel for the political officer of the ship, Dong Song Choi. The principal argument relied upon is that the writing upon each piece of paper is hearsay.
However, the prosecution submits that each of the documents is admissible. In particular, it is submitted that the two piece document and the seven piece document are relevant to the proof of a fact in issue in the trial, that being the role and responsibility of Choi on the Pong Su. Dealing with the two piece document, the prosecution submits that the writings that refer to the “landed crew” and “moving quietly toward the east No. 1 route” appear to be a direction to persons on the Pong Su whereas the writing upon the document stating “arrived at 1700 hours” appears to be a message from the ship, relating to an arrival having occurred. The prosecution submits that the fact that this document was found in a cabin which the prosecution submits can be proven to be that of Choi demonstrates that he had the authority upon the ship to justify such messages being located in his cabin. Likewise, the prosecution contends that the contents of the seven piece document appear to be in the nature of a message from the ship to the Pong Su Shipping Company relating to events which occurred at Boggaley Creek. The prosecution submits that the nature of the document demonstrates that Choi possessed the degree of authority that justified such a message being located in his cabin.
The prosecution further contends that the message is in the nature of a direction, demonstrating authority, and demonstrating that the sender of the message was “the type of person that knew the location of the ship at the time”.
The prosecution seeks to rely upon the documents in other ways. First, the prosecution contends that the words “arrived 1700 hours on the 15th” which are written upon the fingerprint document, when read, leave it open for the jury to conclude that the words relate to a past event, which had been expected, namely an arrival at a place at 1700 hours on the 15th. The prosecution can demonstrate from other evidence that the Pong Su was seen in the vicinity of the location where the heroin was unloaded from the ship, from approximately 1.00 pm on 15 April 2003. The prosecution submits that the use of the word “arrived”, suggests that the ship was at a destination, rather than at a location where there had been an unexpected mechanical breakdown. It is submitted that the note is admissible to rebut the proposition that the Pong Su arrived at Boggaley Creek by reason of unforeseen mechanical breakdown.
In this regard the prosecution submits that there is no requirement that a document contain reference to a person, or to matters particularly within that person’s knowledge to be admissible against that person. It is submitted that it is necessary only that the document bear some connection to that person. Here, it is submitted that the fingerprint of Choi and the fact that the document was found in a cabin occupied by him creates that connection, and thus the writing upon the document is admissible against him.
Furthermore, the prosecution’s submission is that the contents of the document do not constitute hearsay. This argument is advanced on the basis that the prosecution, it is said, does not seek to rely upon the truth of the assertion made that the ship “arrived at 1700 hours on the 15th” but rather on the fact that there was an assertion of such arrival. The prosecution submits that the truth or otherwise of the statement written on the document is not to the point, but rather that the existence of the statement gives added force to the circumstantial case that the ship did not arrive by mischance, but did so by design.
Thirdly, it is submitted by the prosecution that the fingerprint document must be considered in the context of other documents which also relate to the “arrival” of the Pong Su at Boggaley Creek on 15 April 2003. These other documents are written transmissions of radio messages from the Pong Su to head office. The documents were translated into English. The first such document, dated 13 April 2003, reads:
“Dear Sir, Due to arrive at one o’clock on the 16th. Regards, Captain.”
The second such document, dated 14 April 2003, reads:
“Had a detailed telephone contact with the charterer.”
The third such document, also dated 14 April 2003, reads:
“Dear Sir, Arrival at 17 o’clock the 15th. Regards, Captain.”
The prosecution submits that these documents form part of the matrix in which the fingerprint document should be evaluated, in that all the documents are part of the circumstantial case indicating that the ship, according to the Captain at least, was due to arrive, first on 16 April and then on 15 April. It is said that this is consistent with the information conveyed within the fingerprint document. The prosecution contends that the statement on the document tends to rebut any suggestion that there was a mechanical breakdown, and the proposition that it was intended that the ship, and therefore the accused men were intending to travel to Melbourne.
Mr O’Sullivan of Counsel for Choi contends that the fingerprint document is not admissible, on the basis that the writing upon it is hearsay and that the document is irrelevant to any issue in the trial. Mr Hayden of Counsel, who appears for the Master of the ship Man Sun Song, supports such submission. First it is submitted that the translated words “arrived at 1700 hours on the 15th” are incapable of conveying the meaning alleged by the prosecution, given that there is no evidence as to authorship of the writing, or as to the time at which the words were written. In this regard, Mr O’Sullivan relies upon a report prepared by handwriting expert, Mr Neil Holland, which was provided to the Federal Police in relation to Mr Holland’s examination of the handwriting upon the document. Mr Holland examined a red book with the name of the accused Choi on the front of it. This book was found in the cupboard room. Mr Holland formed the conclusion that the writing in the red book, apparently owned by Choi, was not written by the same person who wrote the note upon the fingerprint document. Thus the only evidence of any connection between the document and Choi is the fact that his fingerprint is upon it and of course the fact that it was found in a cabin occupied by him. The document contains no reference to Choi or to any matters that could be said to have been necessarily peculiarly within his knowledge.
Both Mr O’Sullivan and Mr Hayden submit that the prosecution is attempting to invest the word “arrived”, which is written upon the fingerprint document, with meaning which, as a matter of etymology, it does not possess. In circumstances where there is no evidence of the time when that word was written, or who wrote it and no other evidence in relation to the document, it is submitted that it cannot be said that the words are probative of anything. Mr Hayden points out that the meaning which the Crown seeks to assign to the sentence is “We reached our destination at 1700 hours. (i.e. We did not just stop there for engine repairs or any other purpose).” Mr Hayden refers to paragraph 513 of the summary of the prosecution opening whereby the prosecution states, “A handwritten note stating that the ship had “arrived” at 5.00 pm on the 15th is compelling evidence showing that the Pong Su had by then arrived at an intended location.” Thus, he submits that it is apparent that the prosecution seeks to rely upon the truth of the handwritten note. Mr Hayden points out that the statement is in the past tense and the prosecution has no evidence of when it was written, save that the time of writing was no doubt prior to 20 April 2003 when the Pong Su was intercepted by the Australian Navy off the New South Wales coast.
Likewise, as with the fingerprint document, the prosecution submits that the two piece document is admissible as part of the circumstantial case and that the words written upon the document are admissible as part of the accumulation of facts which tend to establish a fact in issue, that fact in issue being that the accused men, travelling on board the Pong Su, arrived at a pre‑determined location rather than simply stopping near Boggaley Creek as a result of an unexpected occurrence.
As with the document containing the fingerprint of Choi, the prosecution submits that it does not seek to rely upon the truth of the assertions made but rather relies upon the fact of the assertion made as one piece of evidence in a circumstantial case, establishing that the Pong Su “arrived” at the location of Boggaley Creek rather than merely stopping there. Put another way, the prosecution submits that the document is relevant to the facts in issue concerning the accused men, and particularly the Master, as to whether or not the ship stopped at Boggaley Creek pursuant to a predetermined plan that involved narcotics, or for some other reason.
The prosecution submits that the test to be applied is whether the evidence, as a piece of evidence evaluated in combination with other pieces of evidence, renders it more probable that the accused men and the ship arrived at Boggaley Creek pursuant to a pre-arranged plan. The prosecution submits that the evidence should be looked at as a whole, and seen in the context of the timely arrival of the shore party, the communication from the telephone alleged to be held by Lam to the telephone later found to be in the possession of Wong, the documents purporting to be communications from the Master regarding times of arrival of the ship, the movements of the ship and the evidence establishing the importation of heroin from the ship. In support of this submission, Mr Champion relies upon a number of well known authorities in relation to cases involving circumstantial evidence. In Shepherd v The Queen[4] Dawson J said:[5]
“Circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. It is traditionally contrasted with direct or testimonial evidence, which is the evidence of a person who witnessed the event sought to be proved. The inference which the jury may actually be asked to make in a case turning upon circumstantial evidence may simply be that of the guilt of the accused. However, in most, if not all, cases, that ultimate inference must be drawn from some intermediate factual conclusion, whether identified expressly or not. Proof of an intermediate fact will depend upon the evidence, usually a body of individual items of evidence, and it may itself be a matter of inference. More than one intermediate fact may be identifiable; indeed the number will depend to some extent upon how minutely the elements of the crime in question are dissected, bearing in mind that the ultimate burden which lies upon the prosecution is the proof of those elements. For example, with most crimes it is a necessary fact that the accused was present when the crime was committed. But it may be possible for a jury to conclude that the accused was guilty as a matter of inference beyond reasonable doubt from evidence of opportunity, capacity and motive without expressly identifying the intermediate fact that the accused was present when the crime was committed.”
[4](1990) 170 CLR 573.
[5]At p.579.
Mr Champion also referred to the judgment of the Court of Appeal in R v Ng.[6]
“Where a charge of conspiracy is sought to be proved by circumstantial evidence the Crown is not confined to leading evidence only of such facts as are capable in themselves of proving the conspiracy. The Crown is entitled to place before the jury a range of facts which in combination are capable of proving the offence beyond reasonable doubt. If any fact amounts to an indispensable link in the chain of reasoning then that fact will be required to be proved beyond reasonable doubt but, otherwise, the jury is entitled to have regard to all facts, and to discard such facts as they consider not helpful or to be unpersuasive (even when taken with other facts) or inappropriate to be taken into account when determining their verdict. To apply the distinction identified by Dawson J, in Shepherd (as discussed by Callaway JA in R v Kotzmann), the Crown in this case was relying upon proof of guilt being established from an accumulation of detail which constituted strands in a cable; the Crown was not making use of the evidence relating to August events, and the role of Nezirovski, in a manner which might have constituted any or all of that evidence to be indispensable links in a chain of reasoning which had to be proved beyond reasonable doubt if the charge was to be proved. Nor, by hypothesis, was any piece of that evidence the sole evidence on the issue to which it was directed. Mr Wendler sought to examine particular items of evidence in isolation, and to then contend that they were open to innocent interpretations or were incapable of proving the offence or both. In any case concerning circumstantial evidence few items of evidence would be capable in themselves of proving the offence charged. It is the very essence of a circumstantial case that the items of evidence should not be examined in isolation, but must be considered in their totality.
The evidence concerning the movements and activities of Nezirovski, and of events in August, was properly led on the basis that it was relevant and probative of the conspiracy, when taken together with all of the other circumstantial evidence on which the Crown relied. There was no basis for excluding the evidence on the ground that its prejudicial effect outweighed its probative effect. The evidence was not prejudicial, save to the extent that any evidence which is capable of supporting the proof of the Crown case is prejudicial to the interests of an accused person.”
[6](2002) 5 VR 257 at 306-307.
On that basis, Mr Champion contends that the documents are not to be introduced into evidence in order to prove the truth of the statements contained in them, but simply as documents which “assert what they do” and which can be considered, in combination with other evidence, to determine a fact in issue. That is, as I understand his submission, that the fact that a piece of paper was found with writing on it stating that the ship “arrived” at a certain time, although hearsay if looked at in isolation, is nevertheless admissible when considered in combination with other facts. It is submitted that the documents are admissible to rebut any suggestion that the Pong Su stopped at Boggaley Creek by reason of mechanical failure, and furthermore that they are admissible against Choi by reason of their nature and the fact that they were found in a room occupied by Choi, and thus are demonstrable of his authority.
Conclusion as to the admissibility of the documents containing the fingerprint of Choi and the document containing the assertion of arrival of the Pong Su at 1700 hours
In my view, the effect of the way in which the prosecution seeks to rely upon the words upon two documents under consideration is that the prosecution is seeking to use the writing upon the documents for a hearsay purpose. Whilst the prosecution maintains that it does not rely upon the truth of the assertion contained in the statement, as there is other evidence to establish the location of the Pong Su at 1700 hours on 15 April 2003, the implied assertion of the word “arrived”, as outlined by the prosecution, is that the Pong Su intended to stop at Boggaley Creek, because that was its destination. Relying on the statement as tending to show that the Pong Su “arrived” rather than “stopped” is relying upon the truth of an implied assertion contained in the statement. The sentence “Arrived at 1700 hours on the 15th” can be analysed as containing two types of assertions. First, the matter of the arrival, and secondly, the time and date of the arrival being 1700 hours on 15 April 2003. It is true enough that the prosecution is not concerned with the truth of the second part of the assertion; it having other evidence to establish the Pong Su’s location at that time and date. However, the prosecution appears to me to be concerned to use the statement to prove the truth of the first assertion, that the Pong Su did indeed “arrive”, rather than just stop. That statement has been written by an unknown person and is thus hearsay. In addition I note that no evidence has been put before me as to the nature of the translation of tense in the Korean language to English so as permit such substantial reliance by the prosecution upon the tense of the word “arrived”. For these reasons I conclude that the written statements in question cannot be used as evidence of an admission or a statement on the part of Choi that the Pong Su “arrived” at Boggaley Creek rather than merely “stopped”.
The writing upon the fingerprint document and upon the two piece document is clearly hearsay. It cannot be established who wrote the notes or when the notes were made. The documents containing such writing are not admissible unless tendered for some other purpose. Likewise, the writing appearing upon the seven piece document is, on the face of it, clearly hearsay in circumstances whereby the author of the writing cannot be established and furthermore in circumstances whereby the writing came into existence apparently well after the events at Boggaley Creek had occurred.
The prosecution seeks the admission of the statements relating to arrival appearing on the fingerprint document and the two piece document in combination with other evidence. However, that other evidence points to the fact that the ship arrived at Boggaley Creek. In my view, these hearsay documents can form part of the accumulation of evidence only if they are relied upon as evidence of the truth of the “arrival”. Thus those documents are hearsay and inadmissible.
The remaining issue in relation to the three documents is whether, notwithstanding the fact that the writings upon each of the documents are in my view hearsay and thus prima facie inadmissible, they can nevertheless be admitted for another purpose, namely, as part of the circumstantial case against Choi on the basis that they were found in his cabin and that by their nature they demonstrate his authority upon the ship. If the documents were, for instance, copy telex messages sent by the captain of the ship, and found in the cabin occupied by Choi, they would be prima facie hearsay as to their contents (unless he was proved to be the author or in some other way responsible for the transmission thereof), but would be admissible as evidence that he was a person who had access to such documents. In this manner I conclude that the documents in question are admissible on this limited ground. Clearly the jury will be required to be given directions that the translated writings upon the documents are not admissible against Choi as to the truth of the statements written on them, or for that matter against any other accused, but are admissible (if the jury accepts that the documents contain messages from the ship), as part of the circumstantial case against Choi that he was a person of authority upon the ship and had access to communications being made from the ship to others.
Other Documents
The prosecution seeks to rely upon a number of other documents which were located in the “cupboard room” on board the Pong Su during a search conducted by police of the ship. These documents are all in the Korean language. The first of them is a red book with the name of the accused man Choi printed on the outside cover and with the words “Ro” and “Jak” on the outside which the translator is unable to translate directly save to say that the words may mean “party policy/party guideline/ideological doctrine”.
The next document is a declaration setting out various declarations in honour of “the Great Leader Comrade Kim Il Sung” which when translated in particular contains as declaration number 5 the following words:
“We solidly declare that we will accomplish the task of earning more foreign currency, which was given by the great leader comrade Kim Jong Il, so that reunification of our father country, and the final victory by the great work of Juch can be advanced.”
The further document is a “learning attendance register” appearing to demonstrate that certain persons attended lectures or “lessons” on dates between September 2002 and early April 2003. The register is handwritten but there is no evidence as to whose handwriting the register contains. For the period from 21 January to 5 April 2003 the total number of persons listed in the register is 32. All four of the accused members of the crew, including Choi are named as attendees. Most other members of the crew, as appearing on a crew list, are clearly identified upon the register. There is no evidence as to the nature of the lessons. Whether the register is intended to record attendance at lessons relating to fire drill, cultural lessons, or as the prosecution seeks to infer, political education is not established in any way by the document.
The prosecution alleges that when translated, some of these documents can be shown to have been books and papers that were either owned by, or related directly to the work and role of Choi, the political secretary of the Pong Su. It is said by the prosecution that the documents are not relied upon as the truth of the information contained in them but are documents of an ideological or political nature, and relate to the role of Choi as the political secretary of the ship and his occupation, connection to or use of the cupboard room. It is submitted further that the documents tend to support the proposition that Choi knew the identity of the members of the established crew in April 2003, and that by virtue of logical reasoning, Choi must have been aware that the accused man Wong and the deceased man were not regular members of the crew of the Pong Su. These matters, it is submitted, are relevant to the case against him in establishing his state of mind and knowledge about Wong and the deceased, and that they travelled to Australia on the Pong Su, and left the ship in circumstances whereby they did not return.
Mr O’Sullivan submits that the contents of the translated documents constitute hearsay, and that the prosecution has not identified any legitimate basis upon which the contents of the documents are admissible in evidence against Choi. He argues that there is no dispute as to Choi’s role as political officer on the Pong Su and that the question as to whether he had any connection with various pieces of paper, notebooks, books or booklets containing political material is irrelevant to the charge against him, as is the question of whether or not he occupied the cupboard room. He submits that there is no dispute that Choi had been a member of the crew of the Pong Su on previous voyages of the ship, but that his ownership or possession of documents, including the lecture attendance register, are not probative of any fact in issue and do not support the inference sought to be made by the prosecution that Choi “had intimate knowledge of the circumstances of all those on board”. Furthermore, he submits that such probative value as these documents have, is outweighed by the considerable prejudicial effect of them. The attendance records are not capable of supporting an inference of guilt in relation to aiding and abetting the importation of the heroin, he submits. They are attendance records about some unknown attendance, for an unknown purpose, and kept by an unknown person. The proposition that the “ideological doctrine” book and the “declaration” document are to be admitted because they are consistent with Choi’s role as a political officer is of little probative value. Furthermore, the content of “Declaration 5” is of substantial prejudice in all the circumstances and even if probative should be excluded in the exercise of my discretion.
In general I accept these submissions. The red book with the title Ro Jak printed upon the cover together with the name of Choi endorsed thereupon clearly connects Choi with the document and the place in which it was found in the cupboard room. It may render it more likely that the declarations and the attendance register are associated with Choi but beyond that it is of no probative value whatsoever. The fact that Choi may have had a book which had words on the outside which “may mean” either party policy, or party guideline or ideological doctrine does not establish that he was a person of authority. It merely establishes that he was in possession of a book related to political doctrine. In any event the translation is vague in the extreme and its prejudicial value exceeds its probative worth.
Likewise, the fact that a series of declarations which might be described as propaganda statements of loyalty to North Korea and its leader were found together with the red book referred to above which may be associated with Choi does not appear to me to be probative of the extent of his authority over the rest of the crew. They merely show that he possessed documents suggesting he was loyal to the leader of North Korea. No doubt other persons upon the ship were loyal to North Korea. Certainly some of the declarations and in particular declaration 5 to which I have referred above, contain great prejudice which goes well beyond their probative value.
The fact that the lecture attendance register was found with the red book associated with Choi and in the cupboard room may be seen as having a connection to him, but it does not establish that he had knowledge of who was on the ship. There is no evidence that the register is in the handwriting of Choi. If it was in his handwriting, it may well be direct evidence of his knowledge of who was on the ship, but that is not the case. In terms of direct evidence, the writing in the register is hearsay. Is it admissible in any other way? The fact that it was found in a cabin occupied by him is a matter which may connect him to it, and the fact that it was found with other documents associated with him suggests that it is connected to him but at the moment it is difficult to see what other probative value it has. It may be that this issue will require to be revisited in the light of other evidence but as at the present time I do not conclude that the document is admissible as evidence against Choi.
Having considered the documents individually, the next issue to be determined is whether looked at as a whole, the documents in question are probative of any fact in issue. At best, as a combination they may tend to confirm or support the fact that Choi was the political officer of the ship, which fact is not the subject of dispute. Beyond that I am not satisfied that the documents as a whole establish any matter of sufficient probative value to outweigh their prejudicial aspect. That is particularly so in relation to the set of declarations and more so declaration 5.
Accordingly, I rule that the three documents which were found in the rubbish bin of the cupboard room are admissible for the limited purpose referred to above and not as evidence of the truth of their contents, and that the other documents found in the cupboard room are not admissible in the case against Choi.
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