R v Choi (Pong Su) (No 19) - [2005] VSC 66

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1424 of 2004

THE QUEEN

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:	16 March 2005
CASE MAY BE CITED AS:	In the Matter of the Pong Su (Ruling No. 19)
MEDIUM NEUTRAL CITATION:	[2005] VSC 66

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CRIMINAL LAW – Admissibility of expert evidence – Former Department of Foreign Affairs official with experience of living in North Korea and speaking Korean language – Whether qualified to express opinion as to the role of a political officer in North Korean society – Evidence ruled as admissible.

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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 Ta Song Wong	Mr A.R. Lewis	Lethbridges
For Dong Song Choi	Mr J. O’Sullivan	Galbally & O’Bryan
Fo 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:

Mr O’Sullivan of counsel for the accused man Dong Song Choi submits that the proposed evidence of Dr Adrian Buzo, as to the role of a political secretary in North Korean society and as to the role of a political secretary upon a merchant cargo ship is not admissible against his client.

The background facts

Pong Su sailed from Nampo, a sea port on the North Korean coast on 25 February 2003 with a crew of 30 persons including Choi. After several stops, and having changed registration to sail temporarily under a Tuvaluan flag, the ship departed Jakarta on 1 April 2003, declaring Melbourne as its next intended port of call. The ship’s records indicate that there were 32 persons on board when the ship left Jakarta.

The ship sailed close to land and along the West Australian coast. There was no communication from the ship with Melbourne Harbour Control in order to organise a pilot to enter through Port Phillip Heads nor to organise any berthing facilities at the Port of Melbourne.

At about 1.00 pm on 15 April 2003 residents of Wye River observed a ship sailing very close to the shore. It was then observed to be travelling north offshore from Boggaley Creek. During the course of the evening the ship was seen to be illuminated brightly and travelling close to the shore.

Early the next day a small inflated dinghy was located on the shoreline at Boggaley Creek. Later that morning the body of a deceased Asian male was discovered hidden under kelp on the beach at Boggaley Creek. The next afternoon, following a comprehensive search of the area, an Asian man, later identified as the accused man Wong, was found hiding in dense scrub above Boggaley Creek.

Two large packages of heroin were seized from the back of a Tarago van driven by…

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 66
Decision Date: 16 March 2005

CaseChat Overview and Summary

The respondent was charged with various immigration-related offences. One of the key pieces of evidence in the case was the expert opinion of a former Department of Foreign Affairs official who had lived in North Korea and spoke the language. The defence challenged the admissibility of this evidence, arguing that the witness lacked the necessary qualifications to provide an expert opinion on the role of a political officer in North Korean society. The matter was heard in the High Court, which had to determine whether the witness's experience and knowledge were sufficient to qualify him as an expert in this area.

The court considered whether the witness's experience and knowledge were sufficient to qualify him as an expert in this area. The court examined the witness's qualifications, experience, and knowledge, including his former role as a Department of Foreign Affairs official, his time living in North Korea, and his fluency in the Korean language. The court also considered whether the witness's evidence was necessary to assist the jury in understanding the evidence or determining a fact in issue. The court found that the witness's experience and knowledge were sufficient to qualify him as an expert in this area, and that his evidence was necessary to assist the jury in understanding the evidence or determining a fact in issue.

The court held that the witness's evidence was admissible. The court found that the witness's experience and knowledge were sufficient to qualify him as an expert in this area, and that his evidence was necessary to assist the jury in understanding the evidence or determining a fact in issue. The court also found that the witness's evidence was relevant to the case and that its probative value outweighed any potential prejudicial effect. The court rejected the defence's argument that the witness lacked the necessary qualifications to provide an expert opinion on the role of a political officer in North Korean society.

No further orders were made by the court.

Orders