R v Choi (Pong Su) (No 26)

[2006] VSC 1

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:	5 January 2006
CASE MAY BE CITED AS:	In the Matter of the Pong Su (Ruling No. 26)
MEDIUM NEUTRAL CITATION:	[2006] VSC 1

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. Champion SC 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:

1. In the course of the pre-trial deliberation of issues in this case submissions were made for counsel for each of the accused that evidence of the activities of the Pong Su subsequent to its departure from Boggaley Creek was evidence of post offence conduct which was in no way relevant to any fact in issue in the trial.  It was submitted that it was thus inadmissible.

1. At the time the prosecution contended that the evidence of the so-called flight of the ship was admissible as evidence of consciousness of guilt and capable of being used in each separate case against each accused man who was then on the ship in respect of his own state of mind.  At that time the prosecution contended that all four men were decision makers on the ship and were responsible for the movements of the ship.

1. The brief overview of the submissions made to me at a pre-trial stage appearing above is sufficient for present purposes.  Further detail of the submissions made are set out in ruling No. 5[1].

   [1]In the Matter of the Pong Su (Ruling No. 5) {2005] VSC 3

1. At that time I ruled that the evidence was admissible as part of the circumstantial case and that there was sufficient evidence to say that the Master of the Pong Su had authority and control over the ship and that the jury would be entitled, on the evidence, to draw the inference that he was responsible for the movements undertaken by the ship and for the making of decisions as to whether the ship should stop or endeavour to avoid apprehension.  I concluded that the evidence of the flight of the ship was admissible as part of the circumstantial case against him as evidence of his attempts to evade the consequence of his part in the illegal importation of narcotics into Australia.

1. The evidence of the conduct of the ship between Boggaley Creek and its arrest by the Australian Navy near Newcastle off the coast of New South Wales has now been led. In summary, the evidence is that the Pong Su departed the  area  of Boggalley Creek shortly before midday on 16 April 2003 and headed south. It was later intercepted in Western Bass Strait by a Tasmanian police boat, the Van Dieman. Radio contact was established at that time and the Pong Su was requested to go to Melbourne. The Pong Su did not comply with that request. Subsequently a NSW police boat, the “Fearless” intercepted the Pong Su and came into radio contact with it. Numerous demands were made for the ship to go to the Port of Eden and that having been ignored the ship was directed to proceed to Sydney. However the ship did not enter Sydney Harbour and was subsequently boarded by military personnel despatched from H.M.A.S. Stuart, at a point north of Sydney and near Port Stephens.[2]   

   [2]For a more detailed discussion of the pursuit of the Pong Su by Australian police, customs and military authorities, see Ruling No. 5.

1. In addition, however, the Captain of the ship has now given evidence.  He has said that he became aware of the departure of two men, (whom he said he believed to be agents of the charterer of the Pong Su), from the Pong Su only early in the morning of 16 April 2003.  He said that subsequently he received orders from his employers, the Pong Su Shipping Company, to depart the scene and to proceed to Papua New Guinea to take on a load of timber. 

1. Mr Hayden now submits that in such circumstances the departure of the ship from Boggaley Creek cannot be regarded as flight, in that the evidence now before the jury is that the Captain was acting under orders and that the departure from Boggaley Creek was, in effect, part of the normal commercial shipping activity of the Pong Su.  As I understand the submission of Mr Hayden, he contends that that evidence alters the basis upon which my earlier ruling was made and that likewise the evidence that the ship failed to comply with directions given to it by police, customs and naval personnel between the time that the police boat Van Diemen first became in radio contact with the Pong Su at a point slightly north east of Flinders Island until the time of apprehension by the HMAS Stuart off the north coast of NSW is likewise no longer capable of being regarded as consciousness of guilt. 

1. The prosecution contends that the evidence of the departure from Boggaley Creek in the particular circumstances where Wong and the deceased man had disembarked at around midnight of 15 April 2003 and in circumstances where those two men had failed to return to the ship, and in circumstances where the Captain gave evidence that he was aware that a dinghy which had been brought on board the ship was on the beach at Boggaley Creek’ are circumstances which render the departure of the ship from Boggaley Creek without notification to any Australian authority, is capable of being used as consciousness of guilt on the part of the Master.  Furthermore, the prosecution contends that such departure, combined with the evidence that the Master refused to comply with repeated requests to stop and pull into port render the circumstances of the voyage from Boggaley Creek to the point of apprehension as being capable of being seen as evidence of flight and thus used as evidence of consciousness of guilt on the part of the Master.

1. In my view the submission of the prosecution is correct, notwithstanding that there is now evidence before the jury from the Captain providing an explanation for his conduct, the explanation being that he left Boggaley Creek under the orders of his employer in order to undertake a further commercial transaction in Papua New Guinea, the purported prospective transaction in Melbourne having been cancelled.  That is an explanation provided by the accused.  However, in the end whether that explanation is accepted, or as is more properly stated, whether the jury is satisfied beyond reasonable doubt that it should not be accepted is a matter for the jury in all the circumstances.  In my view the evidence advanced by the prosecution as to the conduct of the ship under the command of the Captain is capable of establishing evidence of flight and thus of consciousness of guilt.  Of course, the jury must be provided with a direction pursuant to Edwardsv The Queen[3] which includes the explanation provided by the Captain, as well as other possible explanations and which makes it clear to the jury that they can use such evidence as evidence of consciousness of guilt only if they are satisfied beyond reasonable doubt that the evidence does amount to flight, and that such flight is incapable of being explained by any  hypothesis consistent with innocence. 

   [3](1993) 178 C.L.R. 193