R v Choi (Pong Su) (No 24) - [2005] VSC 335

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1424 of 2004

THE QUEEN

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:	29 August 2005
CASE MAY BE CITED AS:	In the Matter of the Pong Su (Ruling No. 24)
MEDIUM NEUTRAL CITATION:	[2005] VSC 335

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CRIMINAL LAW – Expert opinion: opinion as to the authority of a political officer on a North Korean cargo ship – Evidence to be based partly on prejudicial matter not intended to be led before jury – Evidence ruled inadmissible.

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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 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:

The prosecution seeks to call two witnesses to give expert evidence in the trial of the accused man Dong Song Choi, as to the role of a political officer upon a North Korean cargo ship. There is evidence that Choi occupied the position of political officer upon the Pong Su. Mr O’Sullivan of counsel who appears for Choi submits that the evidence proposed to be adduced by the prosecution from the two witnesses is inadmissible. I am required to determine the matter.

The first such witness is Balbina Hwang. She made a statement dated 7 April 2005, and in addition on 7 June 2005, gave evidence on a “Basha inquiry” via a video link from Washington DC.

The second witness is Joseph Bermudez who made a statement dated 11 April 2005. Likewise he has given evidence on a “Basha inquiry” by video link from the United States. He did so on 8 June 2005.

The qualifications and experience of Balbina Hwang

Ms Hwang is employed by the Heritage Foundation, Washington DC, as a policy analyst for North East Asia. She has been so employed since 2001. She graduated Bachelor of Arts from Smith College, Massachusetts in 1989, having majored in the subjects of Government and Philosophy. In 1993 she graduated MBA from the University of Virginia and holds a Master of International Affairs degree which was granted by Columbia University School of International Public Affairs, New York. She has completed a Doctorate of Philosophy (PhD) in Government, the title of her “dissertation” being “Globalisation, Strategic Culture and Ideas: Explaining Continuity in Korean Foreign Economic Policy”. As I understand the position, Ms Hwang has completed the PhD but it is yet to be awarded. She has lectured at the School of International Studies at American University, Washington DC in “Korean Politics and Foreign Policy” and in addition has lectured at the Department of Government at the Georgetown University, Washington DC. She has been granted a number…

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 335
Decision Date: 29 August 2005

CaseChat Overview and Summary

In the case of R v Choi (Pong Su) (No 24), the Crown sought to rely on the testimony of an expert witness who was expected to provide an opinion on the authority of a political officer on a North Korean cargo ship. The defendant, Choi, argued that the evidence should be excluded as it was based on prejudicial material that was not intended to be presented to the jury. The matter was heard in the High Court of Australia. The central legal issue before the court was whether evidence that was partly based on prejudicial matter could be admitted. The court had to determine the admissibility of the expert's opinion in light of the prejudicial content it was based on.

The court examined the nature of the evidence and the potential for prejudice to the defendant. It was acknowledged that the expert's opinion was relevant to the case, but the court had to weigh this relevance against the prejudicial content that formed part of the basis for that opinion. The court concluded that the prejudicial material was not incidental to the expert's opinion and that its inclusion could lead to an unfair bias against the defendant. As a result, the court ruled that the evidence was inadmissible. The court's decision hinged on the balance between the probative value of the expert's opinion and the prejudicial impact of the material upon which it was based.

The High Court determined that the prejudicial nature of the evidence outweighed its relevance, leading to the exclusion of the expert's opinion. The court held that the evidence was not admissible because it was based on material that was not intended to be presented to the jury and which could unfairly prejudice the defendant. The court's reasoning underscored the importance of maintaining a fair trial by ensuring that evidence does not unfairly sway the jury through the inclusion of prejudicial content. The court's ruling in this case serves as a reminder of the need for careful consideration of the admissibility of expert evidence, particularly when it is based on material that could be prejudicial.

Orders