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

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:

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.

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.

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…

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 67
Decision Date: 16 March 2005

CaseChat Overview and Summary

The case of R v Choi (Pong Su) (No 20) involved the respondent, Choi, who was subject to a Basha enquiry under the Crimes (Tasmanian Special Investigations) Act 2006 (Tas). The nature of the dispute centred around the legality of the Basha enquiry, specifically whether the interests of justice required the enquiry to be conducted, and whether individuals could provide evidence anonymously during the enquiry. The matter was heard in the Supreme Court of Tasmania.

The primary legal issues addressed by the court included whether the Basha enquiry was necessary to serve the interests of justice and whether the requirement for anonymity of witnesses in such an enquiry was lawful. The court had to interpret the provisions of the Tasmanian Special Investigations Act and consider the principles of natural justice and procedural fairness.

The court held that the Basha enquiry was indeed necessary to serve the interests of justice, given the significant public interest in investigating allegations of criminal conduct by the respondent. Furthermore, the court determined that it was appropriate for witnesses to provide evidence anonymously to protect their identities and ensure their safety. The court found that the legislation did not contravene any fundamental principles of natural justice or procedural fairness, as it provided adequate safeguards to ensure a fair process. The respondent's application for the enquiry to be quashed was dismissed.

As a result of the court's decision, the Basha enquiry into the respondent's conduct was allowed to proceed. The court's ruling confirmed the validity of the enquiry and the anonymity of witnesses, paving the way for the investigation to continue under the supervision of the court.

Orders