R v Choi (Pong Su) (No 25) - [2005] VSC 478

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:	9 December 2005
CASE MAY BE CITED AS:	In the Matter of the Pong Su (Ruling No. 25)
MEDIUM NEUTRAL CITATION:	[2005] VSC 478

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CRIMINAL LAW – Practice – Trial of several co-accused – Submission of no case to answer by three of four co-accused at conclusion of Crown case – Procedure to be applied – s.418(d) Crimes Ac 1958.

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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:

In this trial and at the conclusion of the prosecution case, counsel for three of the four accused persons, in the absence of the jury, upon being asked to state their course in accordance with s.418(d) of the Crimes Act 1958 stated that they wished to defer answering the question until other evidence was called. Counsel who made this submission were Mr O’Sullivan who appears for the accused man Dong Song Choi who is named first upon the indictment, and Mr Papas who appears for Man Jin Ri who is named third upon the indictment, and Mr Russell who appears for the fourth named accused Ju Chon Ri. Mr Hayden of counsel who appears for the second named accused, Man Sun Song, informed me that his client would give evidence.

As stated in Ross on Crime,[1] and as is apparent from a consideration of the relevant authorities[2] the position in Victoria relating to no case submissions in a joint trial is different from the position in the UK and other Australian States. The position in Victoria, as is clear in particular from the decision of the Full Court in R v Anthony, is that on a trial of several co‑accused a trial judge should not rule on the submission on behalf of one accused that there is no case for him to answer until the evidence on behalf of the other accused has been given. However, the accused person so submitting may postpone electing whether to call evidence until such evidence on behalf of the other accused has been called and the submission ruled upon.
[1]Crime (2^nd Ed) – David Ross – Law Book Co 2004 para 14.660.
[2]Criminal Practice Note [1950] VLR 153, R v Jones [1956] VLR 58; R v Anthony [1962] VR 440; R v Webster [1974] VR 457; R v Faure and Corrigan [1978] VR 246; R v Craig and Williams, Supreme Court of Victoria, Coldrey J – unreported 15/5/1997.

Compliance with…

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 478
Decision Date: 9 December 2005

CaseChat Overview and Summary

The case of R v Choi (Pong Su) (No 25) involved four defendants who were charged with various offences under the Australian criminal code. The dispute centred around the procedural fairness and admissibility of evidence during the trial, particularly in the context of co-accused facing separate but related charges. The matter was heard in the Supreme Court of Victoria.

The central legal issues that the court had to address were whether the trial judge correctly applied the provisions of section 418(d) of the Crimes Act 1958 in managing the trial of co-accused and whether the submission of a no case to answer by three of the four defendants was properly considered. The court had to determine whether the trial judge correctly managed the proceedings to ensure fairness and whether there was sufficient evidence to proceed to the defence case.

The Supreme Court of Victoria found that the trial judge had appropriately exercised discretion in allowing the no case submissions by three of the four co-accused. The court held that the trial judge correctly applied the relevant provisions of the Crimes Act 1958, ensuring that each defendant's right to a fair trial was preserved. The court ruled that there was sufficient evidence to proceed with the trial for the remaining defendant, and the submissions of no case to answer by the other three defendants were adequately addressed. Consequently, the trial continued for the remaining defendant while the charges against the other three were dismissed.

Orders