R v Choi (Pong Su) (No 23)

[2005] VSC 334

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1424 of 2004

THE QUEEN

v

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:	1 August 2005
DATE OF PUBLICATION:	22 August 2005
CASE MAY BE CITED AS:	In the Matter of the Pong Su (Ruling No. 23)
MEDIUM NEUTRAL CITATION:	[2005] VSC 334

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CRIMINAL LAW – Expert opinion – Opinion as to capacity to hide cargo upon a ship – Expert Opinion as to implied knowledge of senior crew as to cargo – Whether admissible.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr J. Champion, S.C. with Mr M.P. Cahill	The Solicitor for the Commonwealth Director of Public Prosecutions
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. The prosecution seeks to rely upon the evidence of one Captain John Milward.  Captain Milward has provided two statements dated 30 March 2005 and 19 May 2005 respectively.  In addition, he gave evidence before me on a "basha enquiry" on 14 June 2005.

1. Mr Hayden of counsel who appears for the Master of the Pong Su (“Song”), and Mr Papas of counsel who appears for the First Officer of the ship (“Jin Ri”) and Mr Russell of counsel who appears for the Chief Engineer (“Chon Ri”) object to certain aspects of the evidence proposed to be given by Captain Milward.

1. Captain Milward is a senior lecturer at the Australian Maritime College and has been so since 1991.  In his current position he is responsible for the academic content in the training of chief mates and the masters of foreign going merchant vessels.  He has extensive seagoing experience in the Asia-Pacific area having obtained his first command as a master in 1972 whilst in the employment of Swire Pacific Ship Management, a subsidiary of the China Navigation Co Limited which was then based in Hong Kong. 

1. It is not contended by counsel for any of the accused that Captain Milward is other than well qualified to express expert opinion in relation to issues of seamanship and matters relating to the management of an ocean going ship of the nature of the Pong Su. 

1. I have ruled previously in relation to other expert witnesses intended to be called by the prosecution in relation to maritime matters that evidence as to good maritime practice and as to matters of good seamanship are areas of expertise outside the ordinary experience of members of the community and is admissible as expert evidence.  I have ruled previously that in relation to matters of seamanship, specific experience sailing on a North Korean ship is not required as a basis for giving such evidence.[1]  Mr Hayden of counsel accepts that the basis of those rulings renders much of Captain Milward’s evidence admissible.  However, he submits that part of the proposed evidence of Captain Milward is inadmissible. 

   [1]See In the Matter of the Pong Su (Ruling No. 4) [2004] VSC 503 and In the Matter of the Pong Su (Ruling No. 6) [2005] VSC 5.

1. In his statement dated 30 March 2005, Captain Milward referred to the obligations of the senior officers of the crew of a ship such as the Pong Su in relation to cargo.  His statement concludes with the following paragraph:

“It is also inconceivable that the Master and senior officers was (sic) unaware of the packages or any other illegitimate cargo placed on their vessel.  Any legitimate cargo must be manifested.  If parcels are not manifested then they must appear on a parcel list and declared to Customs on the ship’s arrival in port.  You cannot hide items of this size on a small vessel such as the Pong Su without the notice of other crew members of the ship’s officers.  I do not believe that these items could be brought on board without being noticed in the first place.  Nor do I believe that they could be off-loaded into a small boat without the Master and his senior officers taking notice.”

1. First, Mr Hayden submits that the suggestion of whether or not contraband of the size and weight of the packages of heroin in this case could pass unnoticed by the senior officers on the ship is an appropriate issue to be considered by the jury and does not require expert opinion.  The jury will be shown extensive images of all aspects of the Pong Su.  The workings of the ship will be explained in detail.  It is, he submits, a jury issue as to whether the Master and senior officers were aware of packages upon the ship. 

1. Secondly, it is submitted that there is nothing in Captain Milward’s evidence to suggest that smuggling or the finding of contraband on ships forms part of an organised body of knowledge such as to be recognised as reliable and scientific so as to enable a court to receive expert evidence on the issue in question. 

1. Thirdly, it is submitted that even if there is a body of knowledge about smuggling, then Captain Milward did not profess knowledge of it. 

1. Finally, it is submitted by Mr Hayden that whilst the issue of expert evidence as to good seamanship and the sailing of the ship in North Korean waters has been ruled as being admissible, it is altogether a different issue for expert evidence to be given by Captain Milward about smuggling or the hiding of stowaways upon such a ship.

1. The prosecution submits that the environment of a small cargo ship is a “limited and specialised work place”, and an environment outside of ordinary human knowledge or experience.  It is submitted that the capacity to hide such  cargo as the heroin in this case, and the knowledge that the Master and senior officers would have had about the existence of such cargo is the subject of expert opinion.

1. In my view it is apparent that Captain Milward can give evidence as to the usual cargo handling procedures upon a ship such as the Pong Su. The evidence proposed to be given by him as to the technical matters of sailing a cargo ship and the operation of such a ship in international waters is admissible in my opinion.  He can give evidence as to the necessity of customs declarations to be made by the Master and the procedures to be undertaken in relation to legitimate cargo.  By reason of the requirement for such declarations Captain Milward can give evidence as to the usual processes undertaken upon a ship to avoid the carriage of contraband upon such a ship.  However, in my view, his statement that it is “inconceivable that the Master and senior officers” were unaware of the packages or any other illegitimate cargo placed upon the vessel is not the subject of appropriate expert evidence.  The question of what inferences may be drawn from the circumstantial evidence about the knowledge, and/or the state of mind of each of the accused men in  this case, is a major (if not the principal) issue, and an issue to be determined by the jury.  No doubt Captain Milward can give expert evidence, which together with other evidence might lay the foundations for the prosecution submitting to the jury that the Master (and/or others) would not have been unaware of the existence of the heroin upon the ship.  However, the final conclusion which has been reached by Captain Milward is in my view beyond that which is permissable.

1. A further issue in relation to the proposed evidence of Captain Milward has been raised by Mr Papas of counsel on behalf of Jin Ri and by Mr Russell on behalf of Chon Ri. 

1. Captain Milward made the following statement:

“It would also have been impossible for the two men to launch the rubber inflatable dinghy without the aid of several of the crew on board, most likely under the control of the chief officer, who is in charge of the deck crew.  It would have been necessary for the Master to make a lee with the ship providing calm water on one side of the vessel.  This could have been done while still at anchor or with the ship manoeuvring close to the shore.  In each instance the engines would have had to be used with frequent stopping and starting and engineers through the Chief Engineer, would be aware of what was going on.  Manoeuvring with this precision would almost certainly have involved the Chief Engineer at the engine control.”

1. Mr Papas objects to the admission of the evidence by Captain Milward that it would not have been possible “for two men to launch a rubber inflatable dinghy without the aid of several of the crew on board, most likely under the control of the chief officer, who is in charge of the deck crew”.  Mr Papas submits that although Captain Milward can give evidence as to how he thinks the dinghy might have been launched from the ship, and if such a method of launching the dingy was adopted the number of men required to launch such dinghy, but he cannot, as he has, conclude that such an exercise took place “most likely under the control of the chief officer”.  In my view, the objection of Mr Papas is soundly based.  Captain Milward can give evidence as to the duties of the chief officer on a ship such as the Pong Su.  He can give evidence as to the manner in which a boat might be launched from the ship.  He can give evidence as to the number of personnel who would be involved in such an operation.  No doubt he can give evidence as to the responsibility of the chief officer for supervision of the “deck crew”.  However, he cannot give evidence, as he has purported to do, that the first officer was “most likely” in charge of the deck crew at the time of the launching of the dinghy from the Pong Su at Boggaley Creek.  The most he can say in the realm of his expertise is that the duties of a first officer include being in charge of the deck crew, and in the course of a legitimate process of launching a boat his duties are such that he could be expected to be supervising such launch. 

1. Likewise Mr Russell takes objection to the foregoing passage of evidence of Captain Milward.  He objects to the evidence of Milward that in order to launch an inflatable dinghy over the side of the Pong Su it would have been necessary for the master to make a lee with the ship providing calm water in which case the chief engineer would have been involved in the frequent stopping and starting of the engine.  Mr Russell submits that in circumstances where another witness, Captain Oxley, who has given evidence that the likely method of launching an inflatable dinghy would be by use of a swinging derrick, that the evidence of Captain Milward is speculative.  He submits that there is no evidence that a lee was created and that in circumstances whereby Captain Milward had conceded in cross‑examination that, “You could certainly do it without making a lee but, again, it’s going to be a far easier, simpler job to make a lee”, the evidence of Milward relating to the chief engineer should be ruled as inadmissible. 

1. In my view, the evidence of Milward in this regard is generally admissible.  He has given evidence that the most probable method of launching a dinghy from the side of the ship is that it was lowered by ropes.  It is not to the point that another witness, Captain Oxley, has a contrary view.  It is a matter entirely for the jury whether they accept one or other or neither of the opinions given by such expert witnesses.  Milward’s evidence is that in order to effect such a launch of the dinghy it is probable that a lee would have been created.  In my view, the evidence of Milward in this regard is also admissible.  The basis of his opinion as to the methods which might be adopted to launch the dinghy is clear and capable of being analysed and cross‑examined upon.  As I understand his evidence, it is that the preferable way of launching an inflatable dinghy from the deck of the Pong Su would be by two men with ropes lowering it to the water.  As I understand his evidence, it is that in the weather conditions which prevailed at the time it would be necessary for a lee to be created.  His evidence is that if a lee was necessary to be created it would require starting and stopping of the engine which would have been a matter the subject of the responsibility of the chief engineer.  Obviously, if it was not necessary for a lee to be created the starting and stopping of engines was unnecessary.  That is a matter which is capable of being examined in detail in the course of cross‑examination.  In the end, it is a matter for the jury as to whether they accept that the weather conditions were such that a lee had to be created in order for a dinghy to be launched from the ship.  In my view, the evidence of Captain Milward is not speculative, rather it is an opinion based upon an assumed set of facts which facts may or may not be proved to the satisfaction of the jury.  However, that said, and although he may give evidence of the usual duties of a Chief Engineer, he cannot assert that the Chief Engineer was in fact operating the engine, if it was so operated. Subject to that matter the evidence of Captain Milward in this regard is admissible. 

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