R v Choi (Pong Su) (No 21) - [2005] VSC 96

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: DATE OF PUBLICATION OF REASONS FOR RULING	11 April 2005 21 July 2005
CASE MAY BE CITED AS:	In the Matter of the Pong Su (Ruling No. 21)
MEDIUM NEUTRAL CITATION:	[2005] VSC 96

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CRIMINAL LAW – Duplicity – Whether an indictment alleging that the accused aided, abetted, counselled or procured the commission of an offence is uncertain for reasons of duplicity – Whether prosecution required to elect as to form of complicity – whether presence is necessary for proof of aiding and/or abetting –s.11.2(1),(4) Criminal Code Act 1995 (Cth) – s.233B(1)(b) Customs Act 1901 (Cth)

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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:

Ju Chon Ri, the chief engineer of the Pong Su is indicted with one count, namely that “between 25 February 2003 and 16 April 2003 at Boggaley Creek in the State of Victoria and elsewhere (the accused) did contrary to paragraphs 233B(1)(b) of the Customs Act 1901 and by virtue of the operation of sub-section 11.2(1) of the Criminal Code Act 1995, aid, abet, counsel or procure the commission of an offence, namely the importation into Australia of prohibited imports to which s.233B of the Customs Act 1901 applies being narcotic goods consisting of not less than a commercial quantity of the narcotic substances heroin, which was imported into Australia at Boggaley Creek in the State of Victoria on or about the 16th day of April 2003”.

The prosecution case against the Chief Engineer is, like the cases against each of his co‑accused, a circumstantial one. The prosecution contends that the Chief Engineer aided, abetted, counselled or procured the importation of the heroin into Australia by his involvement in the voyage to Australia of the Pong Su and his knowledge of and involvement in taking on sufficient fuel for such a voyage, and by his involvement in and responsibility for the preparations to stop the ship at Boggaley Creek on 15 April 2003, his involvement in stopping the ship, his involvement in the manoeuvring of the ship to enable disembarkation of an inflatable dinghy and his involvement in the necessary engine operations of stopping, anchoring, and maintenance of position at Boggaley Creek when the ship was in an unanchored state._
[1]See Revised Summary of Prosecution Opening, 9 May 2000 at paras 649-654.

The submission that the indictment contains latent duplicity:

Notwithstanding the fact that…

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 96
Decision Date: 21 July 2005

CaseChat Overview and Summary

The case of R v Choi (Pong Su) (No 21) involved the prosecution of Choi (Pong Su) for aiding, abetting, counselling, or procuring the commission of an offence under the Customs Act 1901 (Cth). The dispute centred on the certainty of the indictment and whether the prosecution was required to elect as to the form of complicity. The matter was heard in the High Court of Australia.

The primary legal issue before the Court was whether an indictment alleging aiding, abetting, counselling, or procuring the commission of an offence was uncertain for reasons of duplicity. Specifically, the Court had to determine if the prosecution was required to elect as to the form of complicity under section 11.2(1) and (4) of the Criminal Code Act 1995 (Cth), and whether presence was necessary for proving aiding and/or abetting under section 233B(1)(b) of the Customs Act 1901 (Cth). The Court also examined whether the indictment could charge the accused with multiple forms of complicity without requiring the prosecution to elect.

The Court concluded that the indictment was not uncertain for reasons of duplicity and that the prosecution was not required to elect as to the form of complicity. The Court held that an indictment could charge the accused with multiple forms of complicity, including aiding, abetting, counselling, or procuring, without necessitating an election by the prosecution. Furthermore, the Court found that presence was not a necessary element for proving aiding and/or abetting. Instead, the prosecution must establish that the accused knowingly participated in the commission of the offence. The Court's reasoning was based on the principle that an indictment should be clear and specific enough to inform the accused of the charges against them, but it need not specify the precise manner in which the offence was committed.

As a result of the Court's decision, the charges against Choi (Pong Su) were not dismissed on the grounds of duplicity. The case proceeded to trial on the merits of the charges. The final orders of the Court were not explicitly stated in the text provided. However, it is likely that the case continued to be heard on its substantive merits, with the Court's ruling on the duplicity issue serving as a procedural milestone in the proceedings.

Orders