R v Choi (Pong Su) (No 18) - [2005] VSC 58

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1424 of 2004

THE QUEEN

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…

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 58
Decision Date: 8 August 2005

CaseChat Overview and Summary

The case of R v Choi (Pong Su) (No 18) involved a criminal dispute where handwritten documents were found on a ship. The issue before the court was whether these documents could be admitted as evidence against the accused, who occupied the cabin where the documents were discovered. The court was required to determine the admissibility of these documents under the principles of evidence law, particularly focusing on the connection between the accused and the documents, as well as the circumstances under which they were found.

The legal issues central to this case revolved around the admissibility of the handwritten documents as evidence against the accused. The court had to consider whether the documents were personal to the accused, and if there was a sufficient nexus between the accused and the documents to permit their use in evidence. The court also needed to assess whether the chain of custody was maintained and whether there were any breaches of the accused's rights that could render the documents inadmissible.

In reaching its decision, the court examined the circumstances under which the documents were found and the relationship between the accused and the documents. The court found that there was a sufficient connection between the accused and the documents, as they were found in the cabin he occupied. The court also noted that there was no evidence suggesting any tampering with the documents or breaches of the accused's rights during their discovery. Consequently, the court ruled that the handwritten documents were admissible as evidence against the accused.

The court's decision was that the handwritten documents found in the cabin occupied by the accused could be admitted as evidence. The court's ruling was based on the strong connection between the accused and the documents, the maintenance of the chain of custody, and the absence of any breaches of the accused's rights. The final orders of the court were to allow the documents to be used as evidence in the trial.

Orders