R v Choi (Pong Su) (No 22)
[2005] VSC 139
•2 May 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1424 of 2004
| AUSTRALIAN FEDERAL POLICE |
| v |
| TA SONG WONG DONG SONG CHOI |
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JUDGE: | KELLAM J. | |
WHERE HELD: | MELBOURNE | |
DATE OF RULING: | 2 May 2005 | |
CASE MAY BE CITED AS: | In the Matter of the Pong Su (Ruling No. 22) | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 139 | |
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CRIMINAL LAW – Practice- Subpoena – Public interest immunity – Documents produced not relevant to any issue in trial.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr G. Gilbert | Solicitor to the Australian Federal Police |
| For Ta Song Wong | Mr A.R. Lewis | Lethbridges |
| For Dong Song Choi | Mr J. O’Sullivan | Galbally & O’Bryan |
HIS HONOUR:
On 10 February 2005 the solicitors for the accused man Ta Song Wong issued a subpoena seeking the production of a number of pages of “case entries” which were missing from large quantities of material (consisting of three large arch binders) which had been otherwise disclosed by the Australian Federal Police (AFP).
Following the issue of the subpoena, co-operative discussions between Mr Lewis of Counsel for Wong and the solicitors for the AFP took place whereby a significant further number of documents were provided.
By 17 March 2005 however it became apparent that an agreement could not be reached between the parties as to a small number of documents which were not produced in response to the subpoena and accordingly that day I heard an application by Mr Gilbert of Counsel on behalf of the AFP to set aside the subpoena.
Mr Gilbert submits that the accused man has not fulfilled the onus of expressly and precisely identifying the legitimate forensic purpose for which access to the documents is sought. In particular he submits that the accused has not demonstrated that there is any basis to say that the documents sought assist the defence materially and that what is being undertaken is no more than a “fishing” expedition.
In reply, Mr Lewis concedes that there is no argument about any documents which might be the subject of legal professional privilege, and that may tend to disclose the identity of an informer, or about any Cabinet submission or any matter related to national security.
He submits, however, that there is a legitimate forensic purpose in relation to any investigations into the identity and antecedents of his client, which he states are “conspicuously missing” from the documents which have been produced.
Secondly, he submits that the case entries which have been supplied forms a sequence or “a continuum” of the investigation. In particular, he points to the investigation into the detection of the arrival of the Pong Su and the “investigation shortly thereafter”. He said, “We particularly seek those investigations that surround 16 April, that lead up directly before 16 April and continue probably until about 17 May … when the balance of the heroin was found at Boggaley Creek”.
Thirdly, Mr Lewis contends that there was evidence given at the committal hearing by Mr Meagher[1] that two North Korean diplomats had been the subject of surveillance over a period of two days. It is apparent from a reading of the transcript that by “surveillance” it was meant that a diplomat had been the subject of observation for a period of two days, rather than, as suggested by Mr Lewis before me in further argument on 14 April 2005, that there was electronic surveillance by intercept of a telephone. In any event, from this Mr Lewis contends that he is entitled to be provided with documents which would demonstrate that there had been “a proper investigation” into the question of whether there was any link between the People’s Democratic Republic of North Korea as an institution and the alleged importation of heroin aboard the Pong Su. In particular he contends that any document which demonstrates that there had been such an investigation and the fact that no evidence of such a link was discovered, is of forensic importance to the defence of his client.
[1]At p.1526 of the transcript.
Although the subpoena in contention was issued by the solicitors for Wong, I permitted Mr O’Sullivan of Counsel who appears for the accused man Dong Dong Choi, to make submissions as to the issues as a matter of practicality. He supports the argument advanced by Mr Lewis and in particular the submission that case loads relating to the search of the Pong Su by investigators and the finding of documents on board are directly relevant to issues affecting Choi.
Having heard the submissions and notwithstanding that there is some weight in the argument that the subpoena has many of the appearances of a “fishing expedition”, I ruled that any documents which related to the investigation and the search of the ship, and in particular during the period between 16 April 2003 and 7 May 2003 would appear to have a legitimate forensic purpose, subject to any claim for public interest immunity. I accepted that any material which related to an investigation into the identity of Wong “may well” be established as being the subject of a legitimate forensic purpose. I stated that I was “far from convinced” by the argument advanced by Mr Lewis that any legitimate forensic purpose was established in relation to any documentation relating to surveillance of any North Korean diplomat.
In consequence of this ruling it was agreed between the parties that the documents in dispute would be provided to me under cover of a confidential affidavit and I would inspect the documents and rule upon whether they should be produced. I have inspected the documents. The first thing to observe about the documents is that no document which has been produced falls into the category of the continuum of investigation and search of the ship. No document which has been produced deals with any issue of identity or investigation into the identity of Wong or for that matter into the identity of anyone else. Thus not one of the documents relates to any legitimate forensic purpose identified by me in my ruling of 17 March 2005.
Furthermore, documents bearing page numbers 903, 05, 921, 923, 936 and 956 relate to the administrative arrangements sought to be established to obtain witnesses in South Korea such as “Defector Two” who has given evidence in a Basha enquiry. An example of this is p.956 which contains the following case notes:
“At 1405 hours on 28 January 2005, Federal Agent Appleby attended the foyer of a Melbourne office and was served a subpoena issued by the Supreme Court of Victoria at the request of Slade & Parsons who acted for Ri Man Jin. The subpoena seeks the two draft statements prepared in South Korea and the reverse caution statement taken during this investigation.”
In the copy document 956 supplied by AFP to counsel for the accused, the words “South Korea” have been blacked out. However, there is evidence already before me that two such draft statements sought by the subpoena in question were prepared in South Korea. Furthermore, there is evidence before me of the administrative arrangements involved in obtaining such statements. No public interest immunity can thus be claimed, but as is apparent the document is utterly irrelevant to any issue in the trial and serves no legitimate forensic purpose whatsoever. Having read each of the other such documents above referred to, I am satisfied that they are as equally irrelevant. I thus need not consider the issue of the public interest immunity claim that production of the documents might disclose the identity of the maker of the statements in question.
I turn to documents numbered 87, 325, 329, 330, 353, 425, 545, 554, and 555. The first thing to observe is that none of these documents relate to the issues which were the subject of my ruling of 17 March 2005 as to what might constitute a legitimate forensic purpose. They contain nothing that would in any way assist any of the accused in relation to their defence or indeed in any way relate to any issue in contention between the present accused persons facing trial and the prosecution. They are of no relevance to any legitimate forensic purpose. That being the case, the issue of any balance with any claim of public interest immunity does not arise but it is appropriate to say that had the question of consideration of any balance been in issue, there would be a basis to argue that disclosure of AFP methodology is against the public interest. Obviously that argument would be far less likely to prevail if there was anything in the material in question which was probative of innocence, or indeed if it assisted the accused in any material way. However, the documents being totally irrelevant to any issue in the trial of the current accused, the issue of balance does not so arise. Accordingly, I do not propose to order that the documents which have been produced before me should be produced in response to the subpoena.
In the course of further argument on 13 April 2005 in relation to these matters subsequent to the delivery to me of the documents, Mr Lewis again raised the question of whether there was a legitimate forensic purpose to be served in production of any documents relating to investigations conducted by the AFP into the part played by the People’s Republic of North Korea in the importation of the heroin. As stated by me previously I am far from convinced that any such legitimate forensic purpose arises in the proceeding before me. The fact, as I understand it is that the prosecution intends to lead no evidence of that, and does not contend that the importation of the heroin into Australia was state sponsored. Obviously if the prosecution was in possession of admissible evidence which would establish other persons’ responsibility for the commission of the offence that might be relevant to the defence of the proceedings by those accused who are now on trial such material could be of legitimate forensic use. No doubt the prosecutor in fulfilment of his duties would, as he did with the statements of the two defectors, inform the defence and the Court of any such material. However, the request for production of documents to establish that some speculative investigation conducted by the AFP which may or may not have taken place was either inconclusive or revealed no evidence, is not, in my opinion, the subject of a legitimate forensic purpose so as to require the production of such documents. It is a mere fishing expedition.
Accordingly, in so far as the subpoena seeks production of the documents referred to above it is struck out. I do not consider it appropriate to make any order for costs.
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