R v Choi (Pong Su) (No 20)

[2005] VSC 67

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. 20)
MEDIUM NEUTRAL CITATION:	[2005] VSC 67

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CRIMINAL LAW – Basha enquiry – Whether interests of justice require enquiry to be conducted – Whether persons may give evidence on Basha enquiry anonymously.

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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
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:

1. On 27 January 2005, Mr Champion of Senior Counsel for the prosecution advised that he was in possession of copies of three statements which had been obtained by the Australian Federal Police (“AFP”) from persons, which statements may contain material relevant to these proceedings.  In particular, two statements said to be made by persons who had lived and worked previously in North Korea were provided to all counsel for the accused.  Portions of the statements which it was said would have identified the makers of the statement had been deleted.  Subsequently a subpoena was issued by the solicitors acting for Man Jin Ri, the first officer of the Pong Su, to produce the three statements.  On 2 February 2005 I ruled that a claim for public interest immunity made by the AFP should be upheld in relation to the two statements in question.[1] 

   [1]See In the Matter of the Pong Su (Ruling No. 14) [2005] VSC 50R.

1. Subsequently, the makers of both statements were interviewed in South Korea by counsel for the prosecution and their instructing solicitor in the presence of Federal Agent Celeste Johnston. 

1. Ms Johnston gave evidence before me that the interview with the person who has been called “Defector 1” and who made a statement to AFP on 9 December 2004[2] took place in Seoul, South Korea, on 25 February 2005.  The interview with the person who has been called “Defector 2” and who made a statement to AFP on 8 December 2004[3] took place on 22 February 2005 in Seoul.  Ms Johnston made notes of the discussions which took place at the interviews.  Those notes are not said to be a transcript of the discussions but are her notes of some things that were said in the course of the interviews.  Photocopies of those notes, with deletions of parts said to contain identifying material of Defectors 1 and 2, have been provided to counsel for the accused and Federal Agent Johnston has been cross‑examined in relation to them. 

   [2]See para 3 of Ruling No. 14.

   [3]See para 2 of Ruling No. 14.

1. Counsel for all of the accused men now seek that the two witnesses known as Defector 1 and Defector 2 give evidence upon an enquiry of the type referred to in R v Basha.[4] 

   [4](1989) 39 A Crim R 337.

1. The prosecution contends that the evidence which may be given by each of the witnesses is so limited as to not require a Basha enquiry. 

1. It is now commonplace for Basha inquiries to take place in Victoria.  However, I am mindful of the comments made by Brooking JA in DPP v Denysenko[5] to the following effect:

“I observe in passing that my impression is that ‘Basha’ inquiries have been held in Victoria on occasions when the interests of justice did not require them.  A judge asked to allow cross-examination in this way should carefully consider whether to do so is warranted.  The mere fact that notice of additional evidence has been given is of course not in itself sufficient reason for a Basha enquiry.  Regard must always be had to the circumstances of the particular case, including in particular the nature of the additional evidence.”

[5][1998] 1 VR 312 at 317.

1. The question thus to be considered by me is whether, in all the circumstances before me, such an enquiry should be directed to take place in the interests of justice. 

1. It should be observed that such an order, if made, is not without practical difficulty.  First, neither of the witnesses is compellable, they both being situated at present in South Korea.  Secondly, one of them is prepared, under appropriate circumstances of anonymity, to come to Australia to give evidence, and the other is not.  Thirdly, neither of them is prepared to reveal his identity or to give evidence of any matter which may tend to reveal his identity.  These are matters of considerable significance, but all defence counsel contend that notwithstanding these issues, a Basha enquiry should be held.  They have each consented to the witnesses giving evidence upon such an enquiry by video link and in circumstances which will not reveal their identity.  They have informed me that they do not intend to ask questions relating to the identity of the maker of the statement.  It should be noted, however, that no such undertaking is given in relation to the giving of evidence in the trial of this matter before a jury. 

1. On the information before me at present, neither witness will give any evidence unless appropriate arrangements are made to protect his identity.  Thus, any attempt to conduct a Basha enquiry may prove to be entirely futile from a practical viewpoint.  However, as this matter is yet to be determined it appears to me to be appropriate to examine whether prima facie, the interests of justice require the conduct of a “Basha enquiry” as a first step.  This requires a consideration of the proposed evidence to be given by each of the witnesses. 

1. A brief summary of the admissible parts of the statement made by Defector 1 is as follows.  He entered the North Korean military, on a date which is not revealed where he was employed for six years in the construction of naval bases.  He joined the Korean Workers Party but later left the party.  Trade teams were formed by the military to generate foreign currency for North Korea and he commenced work with a North Korean military trade team trading in goods between China and North Korea.  He was responsible for co‑ordinating cargoes such as seafood, metals and vegetables which were sold or exchanged with the Chinese military.  This trade was conducted by ship, the vessels in question being less than 40 tonnes with a crew of up to seven people.  As a person who worked in the maritime industry he is aware of how the North Korean maritime industry operated in relation to larger vessels that travelled to international ports.  Precisely how he came to be so aware is not explained by his statement or by the notes of Ms Johnston.

1. The maritime industry in North Korea is completely government owned and it is impossible to charter vessels privately.  The larger vessels consist of a captain, vice captain, chief mate, two to three mates, chief engineer, three to four engineers, chief seaman and about 20 to 30 seamen depending upon the size of the vessel.  Each vessel has a political secretary who is responsible for the day to day supervision of the crew to ensure that they maintain the North Korean political philosophy.  In addition to the political secretary responsible for the crew, there is another political secretary who is responsible for the cargo.  All the crew members are screened by the Korean Workers Party to deem that they are suitable to travel overseas and all the members of the vessel crew are party members.  The basis upon which Defector 1 expressed these opinions is not established by his statement or by the notes in question.  The political system on board a North Korean vessel is exactly the same as the political system in North Korea in that each work unit has a political secretary to ensure that the crew members adhere to North Korean practices and policies.  The political secretary has the ultimate authority in relation to matters that affect the vessel.  Once the captain has discussed the voyage with the political secretary, the captain is responsible for the day to day running of the vessel and the supervision of the crew.  The political secretary on board a vessel is responsible for the supervision of the everyday life of the crew, ensuring that all crew members follow the North Korean philosophy and each crew member is involved in weekly group self-criticism sessions where the crew members report their activities for the past week.  The political secretary records the activities of the crew and reports to the party upon the return of the vessel to North Korea.  The political secretary has no other duties on board the vessel.  In North Korea the position of political secretary is elite and is much sought after.  All vessels that travel overseas have a political secretary and these secretaries have to be of a senior level.  Once again whether this is hearsay or based on actual knowledge is not clear.  The government security office in North Korea screens all crew members to determine if they have suitable backgrounds to prevent the possibility of mutiny or defection.  Generally, the political secretary responsible for the crew on the vessel does not know the cargo.  In particular this would be the case if the vessel is transporting illegal contraband.  If there are two political secretaries on board a vessel, the secretary who is responsible for the cargo would be of a more senior position.  If there is a technical problem the captain has ultimate authority.  The vessel’s political secretary has ultimate responsibility for the behaviour of the crew and ensuring that they adhere to North Korean political philosophy. 

1. In addition to the above statement, the notes made by Federal Agent Johnston reveal that Defector 1 said that the Korean Workers Party is the only ideology in North Korea and that if a person leaves the Korean Workers Party he cannot continue to have a good job.  Defector 1 is recorded as saying that every person in North Korea belongs to an organisation or unit and “moves” according to that unit.  He was in charge of a “foreign dollar making unit” when he sailed in wooden ships of less than 40 tonnes.  He engaged in black marketing of gold in China for which he would have been in trouble with North Korean authorities had they known.  He also engaged in “skimming” of commodities whereby he would, for example, declare to the authorities that 30 tonnes was to be transported but would have one tonne of his own for sale.  He never sailed on a ship larger than 16 metres but when ships were in the military base at which he worked he was a “co-operating partner” involved in the trade undertaken by that ship.  He reiterated what he had said in his statement that all crew on large international ships are members of the Korean Workers Party because they need to be trusted not to escape.  The bigger the ship the more trust is required to be on it.  On a large ship a political secretary is always on board and if there is a disagreement with the captain, the captain must abide the orders of the political secretary.  The political secretary has the highest authority on board to supervise and monitor the actions of all.  Mandatory lectures and training are conducted.  His statement asserts that he last spoke to North Korean crews about the position of the political secretary in the late 1980s and that he had retired in October 2003. 

1. The statement of Defector 2 is to the effect that he had been a chief mate on vessels and his duties included the loading and unloading of the vessel and keeping the ship’s captain’s log.  He was involved in the smuggling of contraband between North Korea and China.  As the vessel which he travelled upon was only small there was no political secretary on board.  He was a member of the Korean Workers Party and was the only party member on board his vessel.  At port he would report to a political agent “occasionally on a weekly basis”.  He had nearly 15 years’ experience in the North Korean maritime industry and the political system that operates on board North Korean vessels is the same as the political system that exists in North Korea and in principle the values that apply in North Korea apply on board a vessel, wherever it is in the world. 

1. In work units in North Korea there are two systems, one political, the other organisational.  From his experience in the North Korean maritime industry he can say that the larger vessels of approximately 30 crew members who travelled into international waters and to foreign ports would consist of a captain, a chief mate, two or three mates, an administrative officer, about 20 seamen, the chief engineer, four to five engineers, a political secretary and a security agent.  There would be “about ten KWP members”.  The maritime industry is one hundred per cent government owned but individuals are able to charter vessels privately, and smaller vessels between 200 and 300 tonnes are quite easy to charter.  There are three independent lines of authority on North Korean vessels.  The first is the technical sailing of the vessel that involves the captain, chief mate, mates and engineers who are responsible for the actual technical sailing of the vessel.  The second is administrative function whereby the administrative officer is responsible for the day to day logistics in relation to the cargo, crew and purpose of the voyage.  The third is the political functionary who is responsible for the indoctrination and supervision of the crew in respect to adherence to the North Korean system of philosophy, values and accountabilities.  Each function acts more or less independently of each other and the question of who has ultimate authority on board the vessel depends on the circumstances of the situation.  The role of the captain is to keep the ship’s log, monitor vessel maintenance and communicate with crew members concerning the technical aspects of the voyage.  The captain is a member of the KWP but is subordinate to the political secretary in relation to political matters on board the vessel. 

1. Defector 2 in his statement referred to the role of the chief mate and the chief engineer and in relation to the political secretary said that he is responsible for the daily life of the crew on board the vessel, ensuring that the crew adhere to North Korean political philosophy.  The role of the political secretary on board the North Korean vessel is the same as in North Korea itself.  A political secretary must be a KWP member, have good family background and be a loyal member of the party.  The political secretary has ultimate authority in relation to political matters on board the vessel but does not have any authority over the day to day operational running of the vessel. 

1. The notes of the discussion had with the prosecution representatives in Seoul on 24 February 2005 reveal that Defector 2 worked upon trade ships trading with China, that he had been involved in “skimming” money from the sale of clams in China and that he had smuggled metals, herbs, cars and medicine which had been stolen from a military hospital in North Korea.  He had also taken to China one kilogram of powder which he believed to be drugs.  He is familiar with the Korean term for political secretary.  If a political secretary is on board a ship it would be a large trade ship of over 1,000 tonne.  He knows a political secretary on a large ship.  The political secretary is not responsible for cargo; the captain is the administrative official. 

1. The prosecution submits that the evidence which it seeks to elicit from these witnesses relates to the case against Choi Dong Song, the political secretary of the Pong Su.  There is no direct evidence of the role of the political secretary, political officer or party official on a North Korean ship of the type constituted by the Pong Su.  On all the available evidence, that role must be the subject of inference based upon the evidence to be placed before the jury.  The Crown case is that Choi, as the political secretary of the ship, was a person of such significant authority that he must have had knowledge of the cargo of heroin carried upon the ship and was thus involved in the importation of narcotics into Australia.  Mr Champion submits that there are aspects of the evidence of Defector 1 and Defector 2 that are relevant to the issues as against Choi Dong Song.  Both defectors are qualified to speak of their experience in the North Korean political system, having lived in that system, and both were at one time or another members of the Korean Workers Party.  Their evidence goes to the existence of a parallel system of authority in work units of which they have personal experience.  On the other hand, their statements contain significant amounts of hearsay and supposition. 

1. Counsel for each of the accused seeks that the two so-called informers give evidence on a Basha enquiry.  In particular, both Mr Hayden of Counsel for the master, and Mr O’Sullivan of Counsel for the political secretary, contend that there are aspects of the statements which may be relevant and of assistance to the defence of their clients. 

1. The statements made by each of the so‑called defectors are far from clear in terms of what evidence is based upon personal knowledge, and what evidence is based upon hearsay, innuendo and speculation.  However, some of the observations made by the makers of the statements which are relevant to the authority of a political officer on board a ship of the type of the Pong Su, if soundly based from an evidentiary viewpoint, may well be of relevance to the prosecution and or to the defence of one or more of the accused men.  It appears to me to be necessary to establish the basis upon which such observations are made.  At the moment it is difficult to ascertain what matters are the subject of personal experience and observation, and what matters are not.  In the circumstances, it does appear to me that the interests of justice require that the issue of whether the witnesses in question can give evidence of an admissible nature or whether their evidence is substantially inadmissible needs to be determined.  For that reason, I propose to permit a Basha enquiry to take place for the clarification of whether or not statements expressed in the statements are matters of personal knowledge.  I do not intend that any such Basha enquiry should be a wide ranging fishing expedition, nor do I propose that any matters which may tend to identify either witness be permitted to be asked.  I intend that the enquiry be related to establishing the personal knowledge of an admissible nature that each person may have of the role of a political secretary in North Korean society and of the role of such a person and other persons on a ship of the nature of the Pong Su. 

1. The next question to be decided is whether such witnesses might be permitted to give evidence in this Court in an anonymous manner.  This is an issue of considerable importance and significance.  For my part, I have grave reservations about the propriety of permitting witnesses to give evidence in circumstances of total anonymity.  However, this matter need not be ruled upon at this stage as all counsel have stated that for the purposes of the Basha enquiry and for the purposes of establishing whether the witnesses in question can given relevant evidence they do not require the witnesses to be identified.  Although I am yet to be entirely satisfied that there is a good basis for the witnesses to be permitted to give evidence in a totally anonymous manner, even if it was proper for them to do so, I am satisfied that there is sufficient evidence before me, as indeed is conceded by counsel for all accused, that on the basis that these persons give evidence that they have defected from North Korea, there are good reasons for apprehension as to the safety of them and their families, and in particular in relation to one defector who still has family in North Korea.  This matter need not be determined at this time.  However, it must be clear that at the least the witnesses must disclose their names and their address to me in confidence.  In Jarvie v Magistrates’ Court of Victoria[6] Brooking J said:[7]

“I have said that in my view the protection of undercover police operatives should be recognised as a basis for the grant of public interest immunity.  I should add that in my opinion the claim to immunity should not be confined to undercover police operatives and that it extends to other witnesses whose personal safety may be endangered by the disclosure of their identity.”

[6][1995] 1 VR 84.

[7]At 99.

1. It should be noted, however, that Brooking J also said:[8]

“I should add that senior counsel for the appellants has made it clear to this Court that it is not suggested that the undercover operatives should be permitted to conceal their identities from the magistrate.  I cannot for the moment conceive of any circumstances in which it would be right for a court to take the evidence of a witness without at least the disclosure in confidence of the name and address of that witness to the court.”

[8]At 87-88.

1. In my view it is clear that if the two so‑called informers are to give evidence on a Basha enquiry before me with their maintaining anonymity as agreed by counsel for the defence, they must nevertheless disclose to me in a confidential manner their names and addresses.  No doubt the prosecution can advise such persons that such disclosure can be provided to me by the prosecution in a sealed envelope, and that I will make an order that the envelope remain sealed and be opened only pursuant to the order of a judge of this Court or as directed by any Court of Appeal.

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