R v Choi (Pong Su) (No 24)
[2005] VSC 335
•29 August 2005
| 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: | 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 of awards, and in particular was granted a Fulbright Grant for dissertation research in Korea between 1998 and 1999. She has published a number of articles relating to politics in North and South Korea. She speaks the Korean language, having been born in Seoul, South Korea. She became a citizen of the United States of America when she was approximately 12 years of age.
Her present employment with the Heritage Foundation involves analysis by her of all issues relating to the Korean Peninsula and Japan, and in particular includes the analysis of political, economic, security and domestic social issues affecting North Korea, South Korea and Japan. The analysis of these issues comes from public information. Ms Hwang does not have access to classified information.
I accept that Ms Hwang does have specialized knowledge of the political system which operates in North Korea by reason of her studies and her background.
The Heritage Foundation however, although stated by Ms Hwang to be a “completely independent, private, not for profit policy research institute” has as stated by Ms Hwang, the goal of dissemination of information and seeks to “influence US policy in a conservative fashion”.
The evidence of Ms Hwang sought to be admitted into evidence by the prosecution
Ms Hwang’s statement sets out in detail her knowledge of the political environment and leadership of North Korea. It contains a description of the part played in the government of North Korea by the Korean Workers Party (KWP). Ms Hwang has been shown a copy of the passport held by Choi which states in English his occupation as being “Political Secretary”. She has examined the Korean language characters which appear above the English term of “Political Secretary” upon the passport and states that the characters, although difficult to translate into the English language, mean “Political Underchief”, “Political Vice Chief”, or “Political Secondary Chief”. She gave evidence that despite the differences in this translation a person with such a title has “a high level of authority”. She asserts that the position of political secretary can be attained by moving through the ranks of the KWP, or by being assessed as a suitable person to hold such position based on family and allegiance to the State. Ms Hwang states that the daily duties of such a person would be to “monitor the activities of other persons and report on their behaviour, such as loyalty to the regime and ideology”. She asserts that:
“In relation to a political secretary on board a foreign vessel, he would not have any function relating to the day to day running of a ship, such as mechanical et cetera however he would monitor the activities of the crew members to ensure they were completing their functions and obligations. He would then be required to report on these activities back to the organisation which he works for. He would also gather intelligence and direct or control the operation.”
In relation to the level of authority held by such a person, Ms Hwang states:
“The level of authority this person would have would be the highest on board the ship. All crew members would be accountable to him, and would be required to follow the instructions and directions ordered by him. Such instructions would include the navigation of the ship and the proposed course of the voyage. The political secretary would be very highly trusted to undertake a voyage such as the one undertaken by the Pong Su”.
Furthermore, she says:
“The duties of a political secretary such as this person would not change from within North Korea to on board a vessel, other than that his level of authority would be increased whilst on board. Being in a contained environment such as a vessel or outside of North Korea would increase his relative authority or position of power because there would be added responsibilities such as making sure each person was doing their job properly, to ensure the success of a mission, to prevent defection et cetera. It is a common practice to have a political secretary on board vessels, particularly those travelling to foreign ports.”
When questioned as to the basis of her opinion that a political secretary would be on board a ship travelling to foreign ports so as to ensure that the same “regimen” which applied in general North Korean society would apply on board the ship Ms Hwang said:
“It is based on my knowledge – the best of my knowledge about the way the North Korean regime operates, in addition to information that is available publicly about how North Korea operates its organisations overseas, outside of Korea.”
Ms Hwang did not however, identify precisely such public information or state the nature of it.
The submission of the prosecution as to the admissibility of the evidence of Balbina Hwang
The prosecution does not contend that all of the evidence which might be given by Balbina Hwang is admissible. In her statement she referred to “Division 39”, a body established by Kim Jong Il which she asserts has the functions of “controlling and enlarging the inflow of foreign exchange to North Korea through legal and illegal exports such as drug smuggling”. The prosecution does not seek to rely upon or to lead evidence of such matters. Furthermore, the opinion expressed by Ms Hwang in her statement that if a political secretary held his position within Division 39 it could be assumed that “the highest levels of the KWP including Kim Jong Il himself is knowledgeable about, and in control of any activities, particularly those conducted overseas … “ is not sought to be admitted by the prosecution in evidence‑in‑chief. Neither does it intend to lead evidence of a number of statements made by Ms Hwang in the course of giving evidence on the Basha hearing as to the suggested role of the North Korean government in the importation of the heroin.
Nevertheless, the prosecution does contend that the evidence of Ms Hwang is admissible. First, it is submitted that she is qualified to offer an expert opinion in relation to the role and authority of a political secretary. It is submitted that by reason of training, study and experience, Ms Hwang is an expert in the workings of the North Korean political, cultural and social systems and that she is qualified to give evidence about the following matters;
(a)the political environment and leadership of North Korea,
(b)the level and nature of control of the Korean Workers Party in North Korea,
(c)the role of a political secretary in North Korean work places,
(d)that an ocean going vessel is a North Korean work place,
(e)that the role of a political secretary in a North Korean work place involves a high degree of authority and control and is part of the control system imposed by the state upon its citizens.
The submission made on behalf of Choi
Mr O’Sullivan of counsel does not contend that Ms Hwang is not qualified to give expert opinion about the nature of North Korean society but rather contends that the evidence proposed to be adduced is not based principally upon the witness’s specialised knowledge concerning the internal workings of North Korean society, but instead is based substantially on unproven facts and propensity reasoning. In support of this submission, Mr O’Sullivan refers to opinions expressed by Ms Hwang in the parts of her statement not relied upon by the prosecution, and to answers given by her to questions upon the Basha inquiry. In her statement Ms Hwang stated that, “Division (or Bureau) 39 was established by Kim Jong Il within the KWP during the mid 1970s, originally to fund Kim Jong Il’s political career. Today, its functions include controlling and enlarging the inflow of foreign exchange to North Korea through legal and illegal exports such as drug smuggling. Division 39 has two arms: one legal, and the other illegal. Within the illegal section, its officials are involved in heroin and amphetamine trafficking that generates as much as $500 million annually for Pyong Yang (2003). … In my opinion, the voyage undertaken by the Pong Su appears similar to the activities undertaken by Bureau 39. The fact that the vessel Pong Su operates under the alleged private company, Pong Su Shipping Company, further supports this belief. Bureau 39 operates ‘private enterprises’ for the purpose of commercial business – both legitimate and illegitimate”.
Ms Hwang was cross‑examined about these matters. Her evidence included the following questions and answers:
Q:
You’d already formed the view that the North Korean government had controlled the bringing of heroin to Australia on the Pong Su before you met Ms Johnson, hadn’t you?
A:
Well, yes, of course, because it is an almost indisputable fact that any operation that is conducted overseas cannot possibly be other than controlled by the North Korean regime. I would find that almost impossible to believe.”
Ms Hwang was asked by Mr O’Sullivan about the possibility that the bringing of heroin to Australia was not a North Korean Government operation, but the subject of “unofficial corruption”.
“Q:
In that situation – so that this is not a government controlled drug operation, this is unofficial corruption. In that scenario, it would be absolutely essential that whoever was corrupt made sure that the political secretary on the ship didn’t know what was going on, wouldn’t it?
A:
This distinction between official and non-official corruption I think is essentially a false distinction … I do not believe that in the North Korean system you can have unofficial corruption. In other words, there is nothing that is considered unofficial. There are no unofficial activities in North Korea. …
Q:
So, any instance in which a North Korean ship is found to have heroin on it, you immediately analyse that in terms of it fitting into a pattern; that pattern being that this is an instance of official North Korean drug smuggling?
A:
Yes.”
Furthermore, in the course of her cross‑examination, Ms Hwang was asked about an article she had written in August 2003 entitled “Curtailing North Korea’s Illicit Activities”.
“Q:
What you said was that Australia has also been a target of North Korean drug trafficking, ‘On 20 April 2003 Australian authorities charged the captain and crew of a North Korean cargo ship with smuggling $48 million worth of heroin, which was brought ashore to Melbourne’?
A:
Yes.
Q:
Your footnote referred to Jamie Tarabay, “Australian Charges North Korean Ship’s Crew in Drug Case’ The Wall Street Journal April 22?
A:
Yes.
Q:
On the basis of a newspaper report, you were prepared to state without qualification that this case involving the Pong Su was an example of official North Korean drug smuggling?
A:
Actually I believe I do have qualification, because it’s based on a very strong pattern of behaviour, and also based on all my knowledge about the way the North Korean regime operates. That it is highly, highly unlikely that any of these sorts of operations overseas – and as that article entails numerous other examples – could possibly have been done without the knowledge, if not also the consent, of the North Korean regime.
Q:
You are prepared to assert on the basis of a newspaper report that this heroin couldn’t have been brought to Australia without the knowledge of the North Korean regime. Is that the situation?
A:
Actually, no, that assertion would not be based on that newspaper report. The assertion again is based on my broad knowledge about the North Korean regime and the way it operates and the knowledge that I have about a history of (indistinct) of behaviour of other North Korean operations overseas involving illicit activities.
Q:
So any instance in which a North Korean ship is found to have heroin on it, you immediately analyse that in terms of it fitting into a pattern, that pattern being that this is an instance of official North Korean drug smuggling?
A:
Yes.”
As to the assertion contained in Ms Hwang’s statement that Divisional Bureau 39 controlled the inflow of foreign exchange into North Korea through illegal exports and her contention that “its officials are involved in heroin and amphetamines trafficking that generates as much as $500m annually (2003)” she said that such information came from “public information that is accessible to anyone. It would be based on research that others have performed.” Upon cross examination about this matter and when asked whether she was simply repeating a claim that has been made by others Ms Hwang said:
“Well, yes including facts and figures from official government sources including the United States government.”
In my opinion there is a good argument that the evidence referred to above which was given in the course of the Basha enquiry, is of the nature of propensity evidence. Ms Hwang holds the firm opinion that it is not possible for the Pong Su to have brought heroin to Australia without the official sanction of the government of North Korea, partly by reason of her understanding of the political environment and level of control of citizens of North Korea, but at least partly because she contends that there is evidence of a “pattern” of North Korean drug trafficking. Whilst it is true that the evidence referred to above is not intended to be called in evidence before the jury by the prosecution, it appears to me that there is weight in the submission made by Mr O’Sullivan that the opinions of Ms Hwang on the above matters are integral to her conclusion about the level of authority of Choi upon the ship.
The qualifications and experience of Joseph S. Bermudez
Mr Bermudez is employed as a “customer data technician” with a company the name of which he declined to name. He has been so employed for 26 years. In addition, and since 1988, he has been employed by the “Jane’s Information Group” as a senior analyst and author. Jane’s Information Group publishes a number of well-known publications including Jane’s Defence Weekly, Jane’s Intelligence Review, International Defence Review, and Jane’s Fighting Ships. Mr Bermudez contends that he is an expert in relation to North Korean defence and intelligence affairs. He has published extensively upon such matters and it is apparent from the large number of publications of books, chapters in books, and articles and reports, to which Mr Bermudez referred in his CV that he has had a significant interest in North Korean matters for a considerable period of time. He published a book “Shield of the Great Leader: the Armed Forces of North Korea” in 2001. He has written a book under the title of “Terrorism: The North Korean Connection” published in October 1990 and which was translated into Korean, as well as numerous articles relating to military matters in North Korea. He has published articles relating to North Korean maritime matters including “DPRK Spy Ships Chased on High Seas” in the Jane’s Intelligence Review of May 1999 and other such articles. He has testified before Congress on several occasions concerning North Korean ballistic missile developments and has provided consultation, lectures, training and presentations to various US government intelligence agencies, including the CIA, FBI Academy, US Navy Intelligence and other organisations. He holds a Bachelor of Arts degree in modern history but does not otherwise appear to have any formal academic qualifications of relevance, although he is at present undertaking a Masters program and studying military intelligence and national security affairs at the American Military University.
The Evidence of Joseph Bermudez
Mr Bermudez provided a detailed statement and was cross‑examined in the course of a Basha inquiry. In his statement he said:
“I have obtained my knowledge on the subject of North Korean defence and intelligence affairs and ballistic developments in the third world by researching and reviewing various sources, which include declassified and unclassified intelligence reports and documents, open source reports and documents, interviews with government (including intelligence officers) personnel in Europe, the Americas and Asia. I have also had access to translated North Korean documents and statements and have conducted numerous interviews with North Korean defectors. I would estimate that it has been approximately four years since I last had an interview with a North Korean defector. The topics I have covered during these interviews, with the North Korean defectors and other sources, have focussed on North Korean defence and intelligence affairs, including the operations of the Korean Workers Party. I conduct research and readings on these topics on a daily basis. I make an effort to maintain my knowledge on North Korean issues and ensure it is relevant to the current environment. I have travelled to South Korea on three separate occasions but have not travelled to North Korea.”
In the course of his evidence before me Mr Bermudez said that the source material upon which he based his opinion came from interviews with defectors, defectors’ statements, conversations with defence and intelligence officials in the US, Europe and Asia, newspapers magazines, television and “classified material”.
Mr Bermudez in his statement provides a detailed analysis of the political environment of North Korea describing it as “the most totalitarian regime in the world today”. He asserts that “the indoctrination is extremely pervasive and completely dominates North Korean society”. He states that to become a member of the Korean Workers Party a person must be “politically reliable”. He observes that the North Korean economy is a “command economy, meaning that all economic activities are planned, directed and controlled by the Party”. He states that private ownership of companies is not permitted within North Korea and that it is “inconceivable to me that a private shipping company could be established within the DPRK. Any such shipping company would undoubtedly be a ‘front’ for a KWP intelligence foreign currency earning operation.” In relation to the question of foreign currency, he states:
“Foreign currency earning has always been among the responsibilities of the KWP and North Korea’s intelligence and security services. As part of foreign currency and intelligence operations, a key component has been the establishment of trading companies, both within North Korea and abroad. The current emphasis on foreign currency earning began in the late 1980s, with the developing collapse of communism in Eastern Europe and the resulting decline of the economies within North Korea. … Concurrent with these developments, there was a component or group of components within the KWP which were tasked with the responsibility to overseas foreign currency earning operations. These components also co‑ordinated similar activities of the intelligence or internal security forces. By the late 1990s, the component within the KWP most responsible for foreign currency earning operations was identified as Bureau 39 … This bureau is under the direct control Kim Jong Il. The foreign currency earning operations co‑ordinated by Bureau 39 include both legal and illegal activities. Legal activities range from the purchase and re‑sale of automobiles to the export of mushrooms and low quality clothing, and more. Illegal activities include the production and distribution of counterfeit currency (ie. US $100 bills); the production, distribution or re‑distribution of narcotics throughout the Middle East and Asia; the engagement in sexual slavery activities in foreign countries; and the smuggling of items such as watches, traditional Asian medicinal products et cetera, and the sale of ballistic missiles to the Middle East and South Asia.”
Mr Bermudez expressed the following opinion in relation to the activities of the Pong Su:
“From the limited amount I know from published accounts of the Pong Su incident, the activities of the ship and the apparent activities of personnel ashore mimic those employed by North Korean covert intelligence ‘mother ships’ operating against Japan and South Korea, and to a lesser degree, merchant vessels engaged in the world wide covert delivery of ballistic missiles. ‘Mother ships’ conducting intelligence or smuggling operations have been identified as undertaking activities such as: hoisting a flag of another country to avoid being identified; being present in an area where ships are generally not located; producing false documentation; making modifications to a ship; departing immediately if identified as being suspicious; denying all activities and providing unlikely stories or explanations for their presence in these locations, and destroying incriminating evidence (e.g. throwing things overboard while fleeing). North Korean ocean going merchant vessels engaged in the covert delivery of ballistic missiles and related technologies to the Middle East and South Asia … have sometimes exhibited similar activities.
From the limited amount I have read regarding the Pong Su incident, in my opinion, it is most probable that the Pong Su Shipping Company, employing the Pong Su, was a front company established by the KWP at the behest of Bureau 39, to co-ordinate the delivery of narcotics to Australia.”
In dealing with the role of a political secretary in North Korean society, Mr Bermudez said in his statement:
“The political secretary is the direct representative of the KWP at each level of North Korean society. A political secretary is a member of the core class and attains his or her position by demonstrating exemplary loyalty to Kim Jong Il … Competence and practical experience are secondary to attainment of the position of political secretary … In my opinion, the political secretary on the Pong Su is the personification of the KWP. As such, he was invested with the same responsibilities as those political officers assigned throughout North Korean industry and the Korean armed forces. More specifically the political secretary’s primary responsibilities on the Pong Su were to ensure the political reliability of the officers and seamen and the completion of its assigned mission. His role as political secretary empowers him with the responsibility to countersign (physically or verbally) all orders of significance issued by the captain, and the authority to issue orders in the name of the KWP, or countermand orders issued by the captain. It is, however, unlikely that he would issue an order or countermand an order by the captain relating to the normal seagoing operations of the vessel. He could and would issue an order or countermand an order by the captain that affected the completion of the mission. In no way is the political secretary to be viewed as being in an inferior position to the captain. As a result, the captain could not, and would not, undertake any action of consequence without the express knowledge and permission of the political secretary.”
In the course of giving his evidence Mr Bermudez said that in relation to his statement that the Pong Su’s activities mimicked North Korean motherships he was referring specifically to
“… a merchant vessel, the Tong (indistinct) in 1983, which carried an assassination team to assassinate the South Korean president, in Rangoon. The Tong (indistinct) delivered a load of lumber to Rangoon and then it went on to Sri Lanka to deliver other cargo. More recently the North Korean merchant vessel, (indistinct) in 1999 was stopped at a Pakistani port where it was unloading sugar and it was found that it had hidden within its hull ballistic missile parts, according to the Indian government, for delivery to Pakistan. Two years ago the merchant vessel, So San, was stopped by a Spanish frigate when it was delivering cement, but underneath that cement was a ballistic missile for Yemen. The fact that there is a legitimate activity does not preclude an illicit activity or covert operation.”
Mr Bermudez was asked about his statement that, "The activities of the ship and the apparent activities of personnel all mimic those employed by North Korean covert intelligence motherships", and said in relation to such personnel:
“I was told that there was one gentleman who was captured ashore and that apparently there was a second person who might have been lost at sea or in the operation to land, and that they used a small craft. I'm not sure if I was told it was a rubber dinghy or inflatable raft, but I believe that's what I was told or read. On previous occasions where we've seen merchant vessels or covert intelligence operations by North Koreans, we see them infiltrating using rubber - we would call them Zodiacs, inflatable rafts, frequently, and they would normally have a person who was the person who was actually going to make contact on shore, and we would typically have an escort to that person, sometimes two, it depends on the operation. We've seen both. The description that I've read was given to me seemed to match that.”
He said that his opinion that the Pong Su shipping Company was a “front company established by the Korean Workers Party at the behest of Bureau 39 to coordinate the delivery of heroin to Australia” was “…an…estimate…it’s my opinion based upon what I’ve known in the past the North Koreans to do.”
The submissions of the prosecution as to the admissibility of the evidence of Joseph Bermudez
The prosecution contends that the evidence of Mr Bermudez is admissible to prove that the political environment in North Korea involves pervasive surveillance and indoctrination, that the Korean Workers Party in North Korea has a high level of control and that a political secretary upon a ship bears the same responsibilities as political officers assigned throughout North Korean industry. It is intended furthermore that his evidence should be led to demonstrate that the role of the political secretary in a work unit that has contact with foreigners, is a higher role than that in a typical North Korean work unit.
The prosecution submits that Mr Bermudez is qualified to give the evidence sought. It is submitted that by reason of his training, study and experience, Bermudez is an expert in the workings of the North Korean political, cultural and social systems. However, the prosecution does not seek to lead evidence‑in‑chief from Bermudez as to the following matters: evidence concerning the fact that free economies exist in North Korea, or evidence as to the activities of Bureau 39. It is not intended to lead evidence‑in‑chief as to the asserted involvement of the Pong Su Shipping Company as a “front” for the Korean Workers Party, nor the asserted role of the North Korean government in the importation of heroin referred to above.
The submissions on behalf of Choi
Mr O’Sullivan of counsel contends that the evidence of Mr Bermudez is inadmissible. As with the evidence of Ms Hwang. Mr O’Sullivan submits that the evidence proposed to be adduced through Mr Bermudez is not based principally upon the witness’s specialised knowledge, but rather on unproven facts and propensity reasoning. It is submitted that when analysed appropriately, the evidence of Mr Bermudez as to the question of the level of authority of Choi aboard the Pong Su is based upon the premise that the alleged importation of heroin was a government controlled “mission”. That is, it is submitted by Mr O’Sullivan that the evidence given by Mr Bermudez demonstrates that his opinions are founded upon the assumed, but unsubstantiated, proposition that the North Korean government was directing and controlling the alleged importation; a proposition that is not intended to be put before the jury and which derives from unproven speculation about the propensity of the North Korean government to engage in criminal activities.
The prosecution submits that the evidence it seeks to lead from both Balbina Hwang and Joseph Bermudez is not discernibly different from the expert evidence to be given by Dr Adrian Buzo. I have ruled already that that evidence is admissible.[1] The background of Dr Buzo is somewhat different from that of each of Ms Hwang and Mr Bermudez. He has had extensive practical and academic experience in North Korean affairs, has lived in North Korea, speaks Korean and has maintained close involvement with Korean people. The experience of Mr Bermudez is entirely different. He has no relevant academic qualifications and does not speak Korean. He has however researched and written a great deal on military subjects relating to North Korea, which I accept demonstrates he is expert in a field of specialised knowledge, that being in particular issues related to ballistic missiles and North Korean defence and intelligence. The basis of at least some of his assertions is that North Korea has in the past engaged in other criminal activity by the use of shipping. His contention that the Pong Su Shipping Co is a front company established by the KWP at the behest of Bureau 39, “to co‑ordinate the delivery of narcotics to Australia” is based, as I understand it, upon other activities of the North Korean Government including the “world wide covert delivery of ballistic missiles”. Although I accept that by broad experience, research and writing he is qualified to express an opinion as to the political structure of North Korea, and the manner of its operation the factual foundation upon which he expresses this particular opinion is not clear to me.
[1]In the Matter of the Pong Su (Ruling No. 19) [2005] VSC 66
Ms Hwang speaks Korean and I accept that she has the appropriate academic background in political science to express an opinion upon the political workings of North Korea. Her experience in this regard falls short of that of Dr Buzo but I accept that by reason of her specialised training, study and experience she is able to express an opinion about the political structure of North Korea.
However, the distinction that I see between the proposed evidence of Ms Hwang and Mr Bermudez on the one hand, and Dr Buzo on the other, is that the reasoning of Dr Buzo as to the authority and power of the political secretary is transparent and will be before the jury. The reasoning of both Ms Hwang and Mr Bermudez is partly that the North Korean government had a role to play in the importation of heroin into Australia, and thus, it follows that it is inconceivable that a person in the position of the political officer would not know about the importation. It is apparent in each case that this opinion is based partly upon the role and authority of a political secretary in North Korean society, and partly on an assertion which is not to be led before the jury, that other activities of the North Korean government such as the smuggling of ballistic missiles, and drug dealing are consistent with the known activities of those persons responsible for the voyage of the Pong Su.
Dr Buzo does not rely upon the previous conduct of the North Korean government in expressing his opinion as to the role and authority of a political officer. Thus, although the evidence of both Hwang and Bermudez about the nature and the basis of the authority of the political officer is similar to that of Dr Buzo and in my view prima facie admissible as expert opinion, the fact that each of them relies so heavily upon the issue of previous, but unproved, criminal conduct of North Koreans is a major distinction between the two sets of evidence.
The relevant principles applicable to the admission of expert evidence
The principles which apply to the admission of expert evidence are clear. The prime duty of an expert witness is to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions.[2] In R v Jenkins, ex parteMorrison[3], Fullagar J said that an expert witness must “explain the basis of theory or experience, upon which conclusions stated are supposed to rest for courts cannot be expected to act upon the opinions the basis of which is unexplained”. Beaumont J in Trade Practices Commission v Arnotts Limited (No. 5)[4] approved the remarks of Wigmore on Evidence, Vol. II (Chadbourn revision, 1979) para 672:
“The key to the situation, in short, is that there may be two distinct subjects of testimony – premises, and inferences or conclusions; that the latter involves necessarily a consideration of the former; and that the tribunal must be furnished with the means of rejecting the latter if upon consultation they determine to reject the former, i.e. of distinguishing conclusions properly founded from conclusions improperly founded.”
[2]See Hayden JA in Makita (Australia) Pty Ltd v Sprowles (2000-01) 52 NSWLR 705 at 729.
[3][1949] VLR 227 at 303.
[4](1990) 21 FCR 324 at 327.
In Trade Practices Commission v Arnotts (No. 5), Beaumont J rejected the evidence of an expert who had attended and/or read the transcript of the hearing and had read the exhibits and then commented on particular allegations in the statement of claim. The appeal to the Full Federal Court against this decision to reject the expert’s evidence failed. Lockhart, Wilcox and Gummow JJ referred[5] to Sir Richard Eggleston Evidence Proof and Probability:[6]
“Assuming that the matter is one on which only an expert can express an opinion, what sort of opinion he may give, and on what material can it be based? It is often said that an expert cannot give an opinion as to the ultimate fact that the court has to decide. This is inaccurate, as experts, especially valuers, often give evidence as to the ultimate fact, and in many cases the question whether the fact exists can be answered only by experts … What the rule really means is that an expert must not express an opinion if to do so would involve unstated assumptions as to either disputed facts or propositions of law. Thus an expert who says ‘In my opinion this action was caused by … ‘ in a case where the facts are disputed is assuming the right to make a decision as to which of the parties is telling the truth, and is therefore usurping the function of the tribunal. Similarly, if a valuer is called in a case where the ‘unimproved value’ of a property is in issue, and there is uncertainty as to the meaning of the terms as a matter of law, the expert should not say ‘In my opinion the unimproved value is … ‘ without stating on what interpretation of the term his opinion is based. In general, where there is uncertainty of either description, the opinion should be based on hypothetical facts, clearly stated.”
[5](1990) 24 FCR 313 at 350 – 351.
[6](2nd ed, 1983) pp.147 - 148..
Hayden J, in Makita, comprehensively reviewed the law relating to the admissibility of expert evidence and having examined the above and other authorities in his decision said[7]:
“In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of ‘specialised knowledge’; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be ‘wholly or substantially based on the witness’s expert knowledge’; so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached; that is, the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the expert is qualified by reason of ‘study training or experience’, and on which the opinion is ‘wholly or substantially based’ applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and so far as it is admissible, of diminished weight.”
[7]At 743.
As Hayden JA said, “An attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v R (1999) 197 CLR 414, on ‘a combination of speculation, inference, personal and second hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise’.”[8]
[8]At 744.
Conclusion
In the application of the principles referred to above, I conclude that the submissions made by Mr O’Sullivan have considerable weight. The opinions expressed by both Ms Hwang and Mr Bermudez that the importation of heroin into Australia upon the Pong Su was a North Korean government operation, does in my view, at least to a considerable extent, underpin their opinion as to the position of authority and the knowledge that Choi, by implication would have had in relation to the presence of heroin upon the Pong Su and its intended importation into Australia. The prosecution submits that that part of the evidence of Hwang and Bermudez can be, in effect, quarantined. It is submitted that such parts of their evidence as relate to the political environment and leadership of North Korea and the role of a political secretary in the North Korean workplace and the high degree of authority of such political secretary are admissible. I accept that it is commonplace for some parts of the evidence of an expert witness to be ruled as admissible, and some parts as not admissible. However, in the circumstances of the evidence led before me, the intention of the prosecution is to lead only part of that evidence as evidence in chief before the jury. That means that the jury will not have before them the totality of the evidence upon which each of the witnesses relies in the expression of his and her opinions about the high authority of Choi upon the Pong Su. To this extent, the reliance of the witnesses upon these matters will not be made explicit to the jury. It is extremely difficult to separate the relatively narrow evidence upon which the prosecution seeks to rely, from the evidence not sought to be relied upon in evidence in chief, in terms of the identification of the intellectual basis upon which the opinions are founded.
Moreover, Mr O’Sullivan would be in an impossible position in acting for the accused Choi, if such quarantined evidence were to be permitted to be led before the jury. In cross‑examining either witness he would have the choice of either ignoring the basis upon which each witness concludes partly that the political officer upon the Pong Su was acting in an official capacity, and thus impliedly had knowledge of the importation (or the nature of the “mission” to use the words of Mr Bermudez) or of opening up the highly prejudicial evidence that North Korea is known to engage in such operations as a State activity. Were Mr O’Sullivan to seek to cross-examine either of the witnesses about these matters, he would almost certainly introduce the propensity reasoning of both witnesses into evidence before the jury. It would be legitimate for Mr O’Sullivan to cross-examine both such witnesses as to their trenchant views about the nature of North Korean society and structure, and as to their conservative viewpoints, but to do so would risk the introduction of highly prejudicial evidence. It is no doubt for this reason that the prosecution stated carefully in its submission that it did not seek to introduce such evidence “in‑chief”.
In order to consider the admissibility of the evidence it is appropriate to examine the way in which each party puts its case. The focus of the prosecution case is to prove the involvement of each individual accused man aiding, abetting, counselling or procuring the importation of the heroin by Wong and the deceased man. In particular, and in relation to Choi, the prosecution case is that by reason of his position as the political officer on board the Pong Su he had such authority and control over other members of the crew that the importation of heroin could not have taken place without his notice and involvement. Mr Champion of Senior Counsel in his opening address to the jury stated that it was not necessary to prove that persons other than those indicted were involved in the importation of the heroin. In the written submission provided to me in support of the evidence of both Hwang and Bermudez being admitted the prosecution argued:
“Specifically it is not an element of the offence alleged against any accused man that the important of 125 kilograms of heroin at Boggaley Creek was carried out at the instigation of or with the ‘sponsorship’ of the North Korean government, any agency of that government, or any other organisation associated with it. Such a circumstance is not part of the Crown case and the Crown does not set out to prove such an involvement.”
I have now heard the defence responses to the opening of the Crown case. No accused person seeks to rely upon the involvement of the government of North Korea in the operations of the Pong Su. No accused person is asserting that there was any involvement by the North Korean government in the voyage of the Pong Su to Australia. Rather, as I understand the general thrust of the defence of each accused person, it is that each of them believed the Pong Su was on a legitimate charter voyage to Australia to pick up motor cars in Melbourne, and that the crew of the ship were in effect deceived by Wong and the deceased man, who were present upon the ship as representatives of the charterers of the ship. Accordingly, part of the basis upon which both witnesses Bermudez and Hwang rely, that is the fact that the voyage of the Pong Su was consistent with what each of them says is the known conduct of the North Korean government in other illegitimate activities, is irrelevant to the issues which are now before the jury.
Leaving aside other issues, I have a continuing responsibility in this criminal trial to ensure that expert opinion is not left to the jury’s consideration where the opinion has no factual foundation. Of course it is true, that it is for me to decide whether an expert’s opinion is admissible, and for the jury to decide whether the opinion is credible. However, if the opinion is based upon speculative material, or as in this case is in addition based partly upon propensity reasoning, and furthermore, part of the reasoning and foundation for the expert opinion is not intended to be put before the jury in evidence‑in‑chief, then it should not be admitted.
Having regard to the issues which are before the jury the evidence which the prosecution seeks to adduce from both Hwang and Bermudez might be said, at first consideration, to be admissible. However upon proper analysis that evidence is at least based partly upon matters which are largely outside the issues joined by the parties, and indeed introduces the question of whether the State of North Korea is in fact the true culprit behind the behaviour of those responsible for the importation of heroin into Australia. If the issue of similarity between this behaviour and other activities of the North Korean Government is introduced before the jury, that would be a considerable distraction from the central issue, which as I understand the case between the parties, is whether the four accused men or one or other of them, were deceived by the charterers, or whether they were actually involved in assisting with the importation of heroin into Australia. It appears to me that the only way in which Mr O’Sullivan can attack the evidence which the prosecution seeks to be submitted is to challenge the basis of the opinions held by such witness. That involves at least a high risk of the introduction of evidence of North Korean government involvement, and thus the introduction of irrelevant material into the evidence before the jury. As stated above, in addition to issues of admissibility I have a continuing obligation to ensure a fair trial. It is beyond argument that the common law now recognises a “general unfairness” discretion applicable to any evidence. That discretion is enlivened if the reception of the evidence would be unfair to the accused men in the sense that the trial would be unfair. The purpose of the discretion is to ensure that an accused person receives a fair trial and is not convicted improperly. A comparatively recent contribution to this issue has been the comprehensive analysis of the discretion to exclude evidence otherwise admissible, made by the Supreme Court of South Australia in R v Lobban.[9] Furthermore, as Gibbs CJ said in Alexander v The Queen[10]:
“[A] trial judge has a discretion to exclude any evidence if the rules of admissibility operate unfairly against an accused. It would be right to exercise that discretion in any case in which the judge was of opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused.”
[9][2000] SASR 24.
[10](1981) 145 CLR 395 at 402-3
In my view, the evidence proposed to be adduced by the prosecution from the witnesses Hwang and Bermudez is so related to their knowledge, and opinions, about the conduct of the government of North Korea in relation to other illicit activities, that the basis of their opinion cannot be explored properly in the course of cross‑examination without the introduction of irrelevant, highly prejudicial and speculative material. In these circumstances I consider the expert evidence to be inadmissible. However, if I am incorrect about that, it appears to me that in the appropriate exercise of my discretion the evidence ought to be excluded, because to admit it introduces a serious risk that such irrelevant, prejudicial and speculative material will be introduced before the jury. The issue of the involvement of the North Korean government in the importation of heroin into Australia would introduce into the trial an issue which is at present not in issue between the parties, and would in my view, seriously prejudice each of the accused persons in circumstances where such an issue is not relied upon by any of them as being relevant to the issues before the jury. On the other hand an endeavour by defence counsel to avoid the introduction of such evidence in the course of cross examination would severely curtail the method of challenging the opinions of each of the witnesses.
Accordingly, I conclude that none of the evidence proposed to be introduced before the jury by the prosecution, from either of the witnesses in question is admissible in this trial. Even if it might be argued that part of the evidence is based upon appropriate expertise and qualifications, the fact that other aspects of their evidence cannot be challenged without a serious risk of causing prejudice to the accused, is in my view a sound basis for the rejection of all of the evidence.
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