R v Choi (Pong Su) (No 19)
[2005] VSC 66
•16 March 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1424 of 2004
| THE QUEEN |
| v |
| 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 the accused men Teng and Lee near to Lorne on the morning of 16 April 2003. The fingerprints of Wong were located on the inner cardboard of one of the packages. Subsequently three packages of heroin were located by police some distance west of Boggaley Creek.
In the course of the morning of 16 April 2003 the Pong Su was seen to sail in a southerly direction away from land. Subsequently it was apprehended early in the morning of 20 April 2003 at which stage 30 persons were found on board the ship.
A subsequent search of the ship revealed that, according to the crew list, Choi held the position of “political secretary”. That occupation is the occupation given in his passport. There is other evidence which suggests that he had a role in meeting with crew members for political purposes.
It is contended by the prosecution that by reason of his position as political secretary Choi had “ideological control” of the ship’s crew. There is no evidence of the precise behaviour of Choi or of any precise statement made by him to support such a contention. Rather, the prosecution seeks to rely upon expert evidence as to the position of a political secretary in North Korean society and thus upon a North Korean ship, and to establish that the position of the political secretary is such that the activities which took place on such a ship would be within the knowledge and active influence of the political secretary. It is in this regard that the prosecution seeks to rely upon the evidence of Dr Adrian Buzo.
The evidence of Dr Buzo
Dr Buzo made a statement to police on 27 July 2004 and in addition was called to give evidence on a voir dire before me.
Dr Buzo was a senior lecturer in Korean studies at Monash University for approximately 10 years and a former employee of the Department of Foreign Affairs and Trade from 1972 to 1977 specialising in Korean affairs. He was awarded Master of Arts (Korean Language and Literature) by Dankook University Seoul in 1981. He holds a PhD, the topic of his dissertation being The Guerrilla Dynasty – Politics and Government in North Korea which has since been published as a book by international publishers. He has also published a further text entitled “The Making of Modern Korea” in 2002. In addition Dr Buzo speaks the Korean language and is the Chair of the Korean Language Panel for the National Accreditation Authority for Translators and Interpreters. He spent six months in North Korea in 1975 and lived in Seoul for four years. In the years since then he has translated North Korean intelligence documents for the Australian Government. He was project manager and contributor to the 1992 report by the Australian Department of Foreign Affairs East Asia analytical unit entitled “Korea to the year 2000: Implication for Australia”. His CV which was tendered before me, demonstrates that he has been involved in numerous Korean organisations including as a Board member of the Australian‑Korean Foundation from 1991.
Dr Buzo gave evidence that he had kept abreast of events in North Korea by reading newspapers published in North Korea and by North Korean organisations overseas together with material “made available through South Korean sources” which he said included “Analysis, defector debriefing documents … which simply came my way in various ways.” He has attended conferences relating to North Korean politics and culture and has travelled frequently to South Korea to discuss matters with North Korean experts over a period of nearly three decades.
His evidence is that North Korea “employs a pervasive internal security and surveillance system which is based directly on the model of the Soviet Union in the Stalin era”. Even minor decisions are made by the political committee of an organisation which committee is headed by a “Korean Workers Party Political Secretary”.
He gave evidence that all North Korean organisations feature the running of two parallel competing chains of command, consisting of party officials connected to the Korean Workers Party, as well as managerial or technical staff, whose role is to report upward through a government bureaucratic system. In the case of North Korea any potential for conflict has “long been resolved by according absolute authority to the Party in all economic decision making”. His evidence is that there is “little doubt” that all North Korean ocean going vessels are run by State organisations in a similar system. Accordingly it is his opinion that the role of the political secretary on an ocean going vessel would be an “especially important one” and that the political secretary would be “fully informed” as to the nature of the “mission” that the ship was carrying out.
However, in the course of cross-examination, Dr Buzo agreed that access to reliable information about North Korea is limited. He gave evidence that he could not say confidently any more about the actual role of the political secretary on the Pong Su, without extrapolation, or arriving at an opinion on the balance of probabilities. He agreed that he has no precise knowledge of the nature of political organisation on North Korean ocean going vessels, nor of the actual situation on the Pong Su. He agreed that he is not aware of the party status of any of the other members of the crew.
The submission of the prosecution
Mr Champion of senior counsel on behalf of the prosecution submits that it is relevant to establish as a fact in issue, the level of power and authority Choi held as political secretary on the Pong Su and that evidence relating to the political structure of North Korea leads to the conclusion that the political secretary of a work unit such as a ship, is an important person in relation to decision making. Mr Champion does not contend that it is part of the prosecution case that the importation of heroin into Australia was a State sponsored action, but he submits it is nevertheless relevant to define the role, power and authority of the political secretary. In essence the prosecution case is that if it is proven that the political secretary is a man to whom the crew of the ship is ultimately accountable, then it is the prosecution case that it is inconceivable that the importation of heroin, which it alleges took place in this case, could have occurred without his authority and his knowledge. Mr Champion submits that the evidence of Dr Buzo complies with the test set out in Clark v Ryan[1] and R v Bonython[2] that where the “subject matter of enquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without” the assistance of suitably qualified expert evidence then such evidence may be admitted.
[1](1960) 103 CLR 486.
[2](1984) 38 SASR.
Submissions on behalf of Choi
Mr O’Sullivan informed me that the accused man Choi will deny the allegation that his role on the ship equipped him with knowledge about the alleged importation of heroin, and thus Mr O’Sullivan concedes that the level and extent of the authority of Choi is a fact in issue at his trial. Mr O’Sullivan further concedes that it is arguable that prospective jurors are unlikely to possess sufficient knowledge and experience to resolve this dispute of fact adequately and may be assisted by expert evidence. However Mr O’Sullivan contends that such expert evidence must be based on expertise regarding the specific issue to be determined, being expertise derived from experience of or knowledge about the authority structure on the ship. Evidence based on belief or speculation about the authority structure existing on the ship is inadmissible, it is submitted. Mr O’Sullivan relies upon the concession made by Dr Buzo in his statement that he does “not have precise knowledge of the political organisation on North Korean ocean going vessels” and submits that in the absence of such precise knowledge Dr Buzo has resorted to mere supposition.
In his statement Dr Buzo said:
“There appears to be little doubt from anecdotal evidence that they have the same security system rigorously employed as on land. A number of factors might influence the appointment of a party secretary to a specific vessel, including past record of service, nepotism, the type of voyage and so on. The role of the party secretary on such ocean going vessels would be an especially important one, since the vessel would be far from home and beyond direct control. In such circumstances one would expect the party secretaries to be fully informed on the nature of the mission – probably better informed than most of the officers and crew.”
Mr O’Sullivan submits that as Dr Buzo provides no adequate factual basis for his statement about the role of a political secretary on an ocean going vessel, his evidence is based on conjecture and speculation and, as such, should be ruled as inadmissible.
It is appropriate to observe that in giving his evidence Dr Buzo said in relation to his above reference to anecdotal evidence:
“Perhaps if I were to write this again I would have also made reference to a couple of key studies largely based on, well, defector’s reports, but it’s a little bit, you know, the word ‘defector’ can be emotive, but nevertheless there have been two very significant studies done over the years of North Korean society, one by Professor Robert Scalapino and Professor Chong Sik Lee of the University of California Berkeley in the early 1970s, and one by a South Korean scholar by the name of Jae‑Jean Suh or Suh Jae‑Jean who wrote again about a 500 page book roughly ten years ago which was based on his access to ex‑North Koreans now living in the south. So if I had that again I would say it is considerably more than just anecdotal in the sense that it’s anecdotes which are then analysed, and then I read the analysis of the anecdotes.”
Dr Buzo stated that he did not have any detailed information about the Pong Su Shipping Company but that it was “enough” for him to “know that all North Korean ocean-going vessels are run by state-owned corporations”. As to whether one could legitimately “extrapolate” organisational practices from North Korea in general, to the Pong Su in particular he said:
“I am suggesting in this situation in this case the part probably resembles the whole, that is to say the political organisation on the Pong Su, probably on balance resembles the political organisation of the DPRK on land, as I put it, that is to say as a whole, I would certainly say that it would be, that, on the balance of probability, would be most likely.”
In making his submissions Mr O’Sullivan referred to Velevski v The Queen[3], where Gummow and Callinan JJ stated at para 165:
“The trial judge has a continuing responsibility, particularly in a criminal trial where a witness has been allowed to express an opinion on a critical issue, to ensure that such opinion is not left for the jury’s consideration where it has become clear that the person who has expressed it has no qualification to do so, or has provided no factual or scientific foundation for the opinion expressed [see Bugg v Day (1949) CLR 442 at 456-457 per Latham CJ; Inch (1989) 91 Crim. App. R. 51 at 54; R v Marquard (1993) 85 CCC (3d) 193 at 225]. Although it is, of course, true that it is for the judge to decide whether an expert’s opinion is admissible, and for the jury to decide whether the opinion is credible and what weight it should be given, it is also true that an opinion is only as good as the factual or scientific basis upon which it is expressed, and if no such basis is given or, if given, can be seen to be speculative or irrelevant to the opinion expressed then the opinion will be worthless. [R v Turner [1975] QB 834 at 840 per Lawton LJ].”
[3][2002] 8 HCA 4 (14 February 2002) at para 165.
Mr O’Sullivan contends that the evidence of Dr Buzo falls precisely into the category of witnesses contemplated by Velevski who have expertise, but do not have expertise in relation to the fact in issue. He submits that such evidence must be based on expertise regarding the specific issue to be determined. He submits that the specific issue to be determined, is “the authority structure that existed on the ship”. He submits that Dr Buzo has provided no factual or scientific foundation for the opinion expressed by him, and thus his opinion is not admissible.
Submission made on behalf of the accused Wong
Mr Lewis of counsel supports the submission made by Mr O’Sullivan and contends further that statements made by Dr Buzo to the effect that the North Korean political system is Stalinist may create prejudice against his client and should be excluded either as not being relevant to the issue, or in the exercise of judicial discretion.
Conclusion
I am satisfied that the precise role played by Choi is a fact in issue, and that the ordinary member of the jury would not have the capacity to form a judgement upon the role and authority of a Political Officer in North Korean society or upon a North Korean ship without the assistance of appropriate qualified expert evidence. I am satisfied that the qualifications and experience of Dr Buzo are such as to enable him to express opinions as to the political structure under which North Korea operates and as to the role of a political secretary in general North Korean society. His opinion that Choi as political officer of the Pong Su was a person of significant authority is based upon his “extrapolation” of what he knows to be the position in North Korean society and culture.
As Hayden JA said in Makita (Australia) Pty Ltd v Sprowles,[4] it is necessary that the evidence to be given by an expert “comply with a prime duty of experts in giving opinion evidence: to furnish the tribunal of fact with criteria enabling evaluation of the validity of the expert’s opinions”.
[4](2000-01) 52 NSWLR 705 at 729.
Furthermore, and as Fullagar J said in R v Jenkins, ex parte Morrison,[5] an expert witness must “explain the basis of theory or experience” upon which conclusions are stated and that “Courts cannot be expected to act upon the opinions the basis of which is unexplained”.
[5][1949] VLR 227 at 303.
Beaumont J in Trade Practices Commission v Arnott’s Limited (No. 5)[6] approved the remarks of Wigmore on Evidence[7]:
“The key to the situation, in short, is that there may be two distinct subjects of testimony – premises, and inferences or conclusions; that the latter involves necessarily a consideration of the former; and that the tribunal must be furnished with the means of rejecting the latter if upon consultation they determine to reject the former, i.e. of distinguishing conclusions properly founded from conclusions improperly founded.”
[6](1990) 21 FCR 324 at 327.
[7]Vol. II (Chadbourn revision, 1979) para 672.
In Trade Practices Commission v Arnotts (No. 5), Beaumont J rejected the evidence of an expert who had attended and/or read the transcript of the hearing and had read the exhibits and then commented on particular allegations in the statement of claim. The appeal to the Full Federal Court against this decision to reject the expert’s evidence failed. Lockhart, Wilcox and Gummow JJ referred[8] to Sir Richard Eggleston Evidence Proof and Probability[9]:
“Assuming that the matter is one on which only an expert can express an opinion, what sort of opinion he may give, and on what material can it be based? It is often said that an expert cannot give an opinion as to the ultimate fact that the court has to decide. This is inaccurate, as experts, especially valuers, often give evidence as to the ultimate fact, and in many cases the question whether the fact exists can be answered only by experts … What the rule really means is that an expert must not express an opinion if to do so would involve unstated assumptions as to either disputed facts or propositions of law. Thus an expert who says ‘In my opinion this action was caused by … ‘ in a case where the facts are disputed is assuming the right to make a decision as to which of the parties is telling the truth, and is therefore usurping the function of the tribunal. Similarly, if a valuer is called in a case where the ‘unimproved value’ of a property is in issue, and there is uncertainty as to the meaning of the terms as a matter of law, the expert should not say ‘In my opinion the unimproved value is … ‘ without stating on what interpretation of the term his opinion is based. In general, where there is uncertainty of either description, the opinion should be based on hypothetical facts, clearly stated.”
[8](1990) 24 FCR 313 at 350 – 351.
[9](2nd ed, 1983) pp.147 - 148.
Hayden J, in Makita, comprehensively reviewed the law relating to the admissibility of expert evidence and having examined the above and other authorities in his decision said[10]:
“In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of ‘specialised knowledge’; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be ‘wholly or substantially based on the witness’s expert knowledge’; so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached; that is, the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the expert is qualified by reason of ‘study training or experience’, and on which the opinion is ‘wholly or substantially based’ applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and so far as it is admissible, of diminished weight.”
[10]At 743.
I am satisfied on the material before me that knowledge as to the internal workings of North Korean society, like the field of political science, is a field of specialised knowledge. I am satisfied that Dr Buzo has demonstrated that by reason of his training, study, writing and interpreting duties he is an expert in the circumstances of the political system which pertains in North Korea. I am satisfied that much of what he has to say in his statement and in his evidence is properly the subject of expert knowledge and is not within the realm of knowledge of the ordinary member of the community. I do not accept the submission of Mr O’Sullivan that Dr Buzo necessarily has to have detailed knowledge of the North Korean shipping industry in order to express an opinion as to the position and role of a political secretary on the Pong Su if his statement properly establishes the basis of such opinion. In my view, Dr Buzo’s statement and evidence does properly establish the basis of his opinion in relation to the function of a political officer upon a ship of the type of the Pong Su. The opinion proffered is based upon the witness’s expert knowledge of the political circumstances which pertain to work units in North Korean society. The opinion is based upon facts as have been identified by him, and so far as the opinion is based on assumed facts, there is an identification of the basis upon which the assumption is made. As was amply demonstrated upon the voir dire when Dr Buzo gave evidence, counsel for the accused are able to test the credibility and the weight of the evidence to be given by Dr Buzo. In the end it is a matter for the jury to decide whether the opinion is credible and whether it should be given any weight and if so how much weight. The evidence of Dr Buzo is admissible as part of the circumstantial case to be considered by the jury in relation to such other evidence that is admissible against the accused man Choi. Clearly, the jury would need to be satisfied beyond reasonable doubt of the nature of the authority of Choi before he could be convicted, and the evidence of Dr Buzo alone could not so satisfy them. However, that is not to say that such evidence is inadmissible. It will be a matter entirely for the jury to consider whether Dr Buzo’s evidence has any and if so what credibility or weight, and whether in combination with such other evidence as may be admissible, they are satisfied beyond reasonable doubt of the power and authority of Choi upon the ship.
As to the submission raised by Mr Lewis of Counsel that the evidence of Dr Buzo raises issues of prejudice against his client, I am satisfied that any such prejudice can be dealt with by an appropriate direction. However, that said, there were aspects of polemic language used by Dr Buzo in certain writings which were put to him by Mr O’Sullivan in the course of his cross-examination. Obviously if those matters are relevant to the issues in the trial then they are admissible, but it appears to me that Dr Buzo should be led to give his evidence in such neutral terms as are consistent with the expression of his expert opinion.
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