R v Choi (Pong Su) (No 25)
[2005] VSC 478
•9 December 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: | 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 (2nd 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 this procedure is not difficult where there are two or more accused and one only of those seeks to make a no case submission. R v Faure and Corrigan is an example of such a case. At the close of the Crown case, counsel for the first accused informed the trial judge, Chief Justice Young, that his client would give evidence. Counsel for the second accused sought to make a submission on behalf of his client that there was no case to answer.
The question then arose as to whether the Chief Justice should question counsel for the second accused. The Chief Justice decided in the circumstances of that case that he would permit counsel for the second accused to defer announcing what course was to be followed until all the evidence proposed to be adduced on behalf of the first accused had been called.
An entirely different situation had faced Menhennitt J in the earlier case of R v Webster. In that case there were five accused. At the conclusion of the Crown case all counsel for all accused intimated their desire to make no case submissions. His Honour gave consideration to the rules set out in the Practice Note and said:
“Having regard to the reason for the rule, this case is, in my view clearly governed by the rule. This leads to the result that in the case of [the first and second accused] I am not to entertain or pronounce upon their submission that there is no case to answer until I know whether it is proposed to adduce evidence on behalf of the other accused persons. Likewise in the case of each of the other accused persons, it leads to the result that I would not entertain a submission on their behalf that there was no case to answer until I knew whether or not it was proposed to adduce evidence by or on behalf of [the first and second accused].”[3]
[3]At p.459.
His Honour determined that the proper course was to require all counsel to respond to his question as to whether they intended to adduce evidence.
As Young CJ later observed in R v Faure and Corrigan, Menhennitt J was confronted with a situation whereby “something in the nature of an inextricable circle existed … “.[4]
[4]At p.239.
In R v Craig and Williams, Coldrey J was faced with the same problem when at the end of the Crown case each of the two accused indicated that he wished to make no case submissions. His Honour considered the authorities and said:
“The effect of these authorities is that where all accused wish to make a no case submission, unless exceptional circumstances exist, such a submission should not be made until all of the evidence to be called by the defence is before the jury.”
Coldrey J required defence counsel to state the course they proposed to adopt pursuant to s.418(d) of the Crimes Act. He said any evidence should be placed before the jury prior to any no case submission being made.
To return to the circumstances of the case before me, and upon the close of the Crown case, counsel for the first, third and fourth accused informing me that they wished to each defer announcing his course and to submit that there was no case to answer, I invited each of them to state briefly the nature of his submission, so that I could determine whether the proposed submissions were fit to be argued. Having determined that the proposed submission outlined by counsel for the first accused, Choi, was not fit to be argued I asked Mr O’Sullivan to state his course and he advised me that he intended to call no evidence. I had already been informed by Mr Hayden that he proposed to call his client, the second accused, to give evidence. In such circumstances, it did not appear to me to be either appropriate or necessary at that stage to require counsel for the third and fourth accused to be required to state their course and I permitted them to defer doing so until after the evidence called by Mr Hayden was heard. I concluded that no prejudice would be suffered by any party by reason of such a course and furthermore that the nature of the proposed submissions could well be affected by the evidence about to be given. The evidence called by Mr Hayden is now complete. Both Mr Papas for the third accused and Mr Russell for the fourth accused continue to seek to make submissions of no case to answer.
As stated by Menhennitt J in Webster:
“It appears to me that the rationale for the rule is that the evidence by or for the accused person may throw light on the total crime and all issues involved. It appears to me to be stating the rule too narrowly to suggest that it is because evidence of one accused may implicate another. In my view, the reason is a much broader one, namely that the evidence of an accused person may throw light and reveal relevant facts as to the whole crime and every aspect thereof.”[5]
[5]At p.459.
Furthermore, as Young CJ said in Faure and Corrigan:[6]
“The problem which arises here is to reconcile the rule that a ruling should not be given upon a submission that there is no case to answer until the evidence on behalf of a co-accused has been given, with the requirement of the statute that the presiding judge shall, at the close of the case for the prosecution, question counsel for the accused as to what course the defence proposes to follow. It might be said that no reconciliation is necessary and that the statute should be literally applied. But, to require an accused person to elect what course he will follow before he has heard all the evidence against him would, in my opinion, be repugnant if it can be avoided to our notions of fairness and justice. It should not be required unless the legislature has given a very clear direction to that effect.”
[6]At 248.
His Honour said further:[7]
“It is clearly desirable that there be some rule of practice, whether embodied in a practice note or in the decisions of the Court, to guide a trial judge in the solution of problems similar to that which arises in this case and, moreover, the contents of the paragraph accord, if I may say so with respect, with justice and common sense.”
[7]At 248.
It should be noted that in the passage above and in referring to “the paragraph” the Chief Justice was referring to paragraph (b) of the Criminal Practice Note of 1950.
His Honour the Chief Justice concluded that the second accused, Corrigan, had a submission which was fit to be argued but that the submission could not be made or ruled upon until “after all the evidence to be given in the case is complete”. Of course in that case the first accused Faure announced through his Counsel that his course was to call evidence and he made no submission of no case to answer.
In the case before me we are now in the position that evidence having been called by Mr Hayden, two accused persons continue to seek to make submissions of no case to answer. Mr Papas for the third defendant seeks to defer formally announcing his course and defer making his submission of no case to answer until after Mr Russell has made his submission of no case to answer. In the course of doing so he has informed me “informally” that his intended course is to lead no evidence. Mr Russell contends that in such circumstances he is entitled to make his no case submission first, and then, depending upon my ruling announce his course, at which point Mr Papas will make his no case submission, either immediately following such announcement if no evidence is to be called, or no doubt at the conclusion of the evidence. It is contended that the consequence of the decisions referred to above cannot be to prevent Mr Russell’s client from obtaining the benefit of being the last named person on the presentment, and being able to contend that all evidence against him has been called and that there is no case for him to answer. It is submitted that because Mr Papas has intimated that he intends to call no evidence, Mr Russell’s client is in precisely the same position as he would be in the circumstances of a trial where two accused are on trial and the first accused has announced his course and not called any evidence.
Mr Russell submits that the appropriate course to be followed in the circumstances facing me is that each individual accused person’s case should be dealt with in the order of the presentment. He submits that if an accused person has a no case submission that is “fit to argue” then the trial judge may defer an indication of what course that accused intends to take. He submits that at that point the trial should proceed until all evidence is called in the cases that have not been deferred. He submits that the trial judge may then entertain the no case submissions of the remaining accused and rule upon them. If any submission made on behalf of each such accused is unsuccessful, then that accused would be required to state the course to be followed and call evidence as appropriate.
Mr Russell submits that the course proposed by him is the only logical way of dealing with the “conundrum that has developed in the case law”.
At first glimpse, the argument advanced by Mr Russell has some attraction to it. There is, however, a logical flaw to the argument when consideration is given to the relevant authorities, and in particular to R v Anthony which is binding upon me. By reason of the decision of the Full Court in R v Anthony, the law in Victoria 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.
Mr Russell submits that when Gavan‑Duffy J said in R v Jones that the submission would be allowed only “when all the evidence has been given, whether for the Crown or defence”[8] he misread the Criminal Practice Note of 1950. That error, Mr Russell submits, was continued by Menhennit J in R v Webster. In my view that submission is not correct. It is apparent that the Criminal Practice Note of 1950 amplified a previous Criminal Practice Note[9] by the inclusion of a mechanism for an accused who seeks to submit that there is no case to answer to refrain from announcing his course until “all evidence adduced by or on behalf of the other accused person or persons has been given … “.
[8]At p.98.
[9][1949] VLR 269.
Although Gavan‑Duffy J, in his ruling in R v Jones did not refer specifically to the Criminal Practice Note of 1950 it is apparent that he was following a long established practice of the Court. He said:
“I propose to follow a long-established practice in this Court, at any rate where there is more than one accused, and not rule on a submission that the Crown evidence is not sufficient to prove the offence charged at the close of the evidence, but to allow an application for a direction to the jury to find a verdict of not guilty, when all the evidence has been given, whether for the Crown or for the defence.”[10]
[10]At p.98.
It should be recalled that in R v Anthony the decision of Gavan‑Duffy J was expressly approved by the Full Court. The Court said:
“It appears to us to be sound and fair, and in accordance with long practice in this state”.[11]
[11]At p.443.
In such circumstances the submission made by Mr Russell that both Gavan‑Duffy J and Menhennit J fell into error must be rejected. It is apparent that the Full Court in R v Anthony were confirming that the long established practice in Victoria, consistent with the Criminal Practice Note of 1950, is that a no case submission should not be ruled upon in a joint trial until all the evidence against all accused has been given. Whilst it is true that there may be exceptions to the rule, such as where it is clear beyond doubt that the case against all accused cannot be made out,[12] and whilst it is also true that there is a discretion to be exercised judicially[13] in relation to the deferral of the announcement of the course to be followed under s.418(d) of the Crimes Act 1958, I am satisfied that the law in this State is that in a joint trial, where more than one accused seeks to make a no case submission, no such submission can be made until all of the evidence to be called is before the jury.
[12]See R v Webster p.459 and R v Craig & Williams per Coldrey J.
[13]See R v Faure and Corrigan p.248-249.
Whilst it is true that the course submitted by Mr Russell is a course proposed in circumstances where it would appear that all of the evidence against his client has been led, that ignores the fact that it may be the case that not all the evidence in the case has been called. If I reject the submission of Mr Russell, it may be that he will call evidence. That evidence might be relevant in relation to Mr Papas’ client. Furthermore, I take into account the view of Menhennitt J in Webster’s case, that the rationale for the rule is broader than merely the suggestion that evidence of one accused may implicate another. He determined that the principal reason for the rule is that the evidence of an accused person may throw light upon and reveal relevant facts as to the whole crime and every aspect thereof. The case before me is a circumstantial case against all accused who are each alleged to have aided and abetted the importation of heroin into Australia. The evidence of any accused person may well throw light onto the whole crime and be relevant to the circumstantial case against one or more of the separately accused persons. In such circumstances it appears to me to be clear that I should follow the same course as did Menhennitt J in R v Webster, that is, I should not entertain or pronounce upon either submission to be made by Mr Papas and/or Mr Russell, until I know whether it is proposed to adduce evidence on behalf of Mr Russell’s client. If Mr Russell intends to call evidence, that evidence should be called before I hear any submission from Mr Russell or Mr Papas that his client has no case to answer. In the circumstance before me I consider that there is no difference between the situation facing me and the situation facing both Gavan‑Duffy J in R v Jones and Menhennit J in R v Webster.
I rule that at this stage I should not entertain any of the applications that are made by counsel for the third and fourth accused persons on the indictment to submit that there is no case to answer until such time as I am satisfied that there is to be no further evidence led in the case. In effect, I perceive that I cannot rule upon such a submission until I know that all evidence in the case relevant to any accused person who seeks to make such a submission has been led. Accordingly, the appropriate course is for me to ask Mr Papas and Mr Russell in turn whether or not they intend to adduce evidence on behalf of their clients before any consideration can be given by me to the submissions of no case to answer, or of a submission that there should be a direction made to the jury to acquit.
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