R v Choi (Pong Su) (No 28)
[2006] VSC 30
•7 February 2006
| 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: | 7 February 2006 | |
CASE MAY BE CITED AS: | In the Matter of the Pong Su (Ruling No. 28) | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 30 | |
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CRIMINAL LAW – Application for discharge of jury – Publication by newspaper of prejudicial material not the subject of evidence before the jury – Application dismissed.
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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’Brien |
| 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 trial of the four accused men commenced before a jury on 3 August 2005. Today is the 107th sitting day. Well over 100 witnesses have given evidence, including numbers of witnesses who have travelled from Hong Kong, Singapore, Jakarta, Queensland, New South Wales, Tasmania and South Australia.
The trial is at the stage where my address to the jury commenced last Thursday.
Last Sunday the Sunday Age published an article headed “What’s the truth behind the Pong Su?”
My first observation about the article is that it contains a number of factual errors. For example, the report asserts that the Captain gave evidence that the Pong Su had been chartered to “pick up a cargo of BMWs from Melbourne”. That is not the evidence of the Captain.
It reports that the Captain “Used charts to check for rocks and the depth of the sea before dropping anchor so the crew could carry out urgent engine repairs replacing one of the six cylinder heads”. That is not the evidence of the Captain.
However, the issue before me is not merely one of sloppy journalism.
The report contains two assertions which are not the subject of evidence before the jury. The first such assertion is that the “estimated street value” of the heroin imported is $150 million. The second is that the Pong Su is berthed in Sydney “reportedly costing more than $2,500 a day to maintain”. There is of course no evidence about these matters before the jury. It is conjecture on the part of the newspaper.
In consequence of those assertions, counsel for all accused now submit that the jury should be discharged. It is argued that there is a real risk that at least some members of the jury will have read the article in question and that the information about the value of the heroin being $150m and the cost of holding the Pong Su at $2,500 per day (i.e. something nearing $3 million since its arrest) is highly prejudicial to the accused persons. In particular, it is contended that the publication of the purported value of the heroin, in circumstances where such evidence is not before the jury has serious prejudice in circumstances where a considerable part of the prosecutor’s address to the jury was based upon an argument to the effect that “the owners of the drugs wouldn’t have left anything to chance …. they went to great steps to ensure it was well organised, co-ordinated”.
Mr Papas submits that those arguments addressed to the jury by Mr Champion have now had “extrinsic unauthorised support” in the form of a newspaper publication in relation to the value of the drugs. He submits that there is a risk that the jury will engage impermissibly in a course of reasoning that because of the very high value of the drugs it is inconceivable that the crew would not know of the existence of the drugs and that “the owners would have paid for or would somehow have ensured nothing would go to chance”.
It should be observed that throughout the trial the jury has known that the heroin is 150kg in quantity. Mr Champion referred to it in his address as a cargo of “immense value”. There can be little argument that the jury would know that the heroin in this case is extremely valuable but as pointed out there has never been a suggestion that its value is anything like $150m.
Likewise, however, Mr Hayden submits that the publication has created such unfairness that there should be a discharge of the jury. He submits that the publication of a purported value of the heroin adds significant weight to the prosecutor’s comments to the jury that the organiser would not take the risk that things could go wrong without the Captain knowing of the importation. Perhaps that is so. It might also add weight to the arguments addressed by the accused that those running this operation would take extra care to ensure that secrecy applied, and that as few people as possible would know. But that is not the point. We should not be speculating as to the effect of the publication of material that has never been put before the jury.
Mr Champion opposes the four applications made before me.
The test for the discharge of a jury is well established. In R v Boland[1] the Full Court said:
“The principle is really one of necessity. There must be evident ‘a high degree of need for such discharge’, that high degree being ‘such as in the wider sense of the word might be denoted by necessity’.”
[1][1974] VR 849 at 866.
As noted in Ross on Crime, R v Boland was approved in Crofts v The Queen[2] in the following terms:
“No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues, the stage at which the mishap occurs, the deliberateness of the conduct and the likely effectiveness of a judicial direction designed to overcome its apprehended impact.”
[2](1996) 186 CLR 427 at 440.
Of course that statement refers to something happening in the course of the trial itself, and not to interference by the press in the conduct of the trial, but it is nevertheless relevant to the circumstances before me.
In Webb v The Queen (1994) 181 CLR 41, Mason CJ and McHugh J reviewed the authorities and said:
“… the test to be applied in this country for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror or, in some cases, the jury is whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially.”
Once again, those remarks were made in relation to circumstances which differ from those before me. However, it appears, that the test for discharge is the same.
Therefore, the question I must ask myself is, “Is there a high degree of necessity for me discharge the jury?”
I accept that there is a risk that some members of the jury may have read the article and may have been surprised at the assertion that the heroin is worth $150 million and they may have been surprised at the asserted cost of maintaining the Pong Su. It should be observed that no member of Counsel seeks a direction from me to the jury that such matters must be ignored. The reason for that is obvious.
On numerous occasions throughout this trial I have warned the jury to ignore outside influences. I have directed them, well more than once, to put aside anything they hear or read. I have referred to the internet and told them how unreliable it is. I have pointed out to the jury that they are the only ones sitting in this court every day, and I have pointed out specifically that media representatives often come and go and their reports cannot be relied upon to be accurate.
As the senior prosecutor noted in his submission to me opposing the discharge, the jury of 13 people have behaved in an exemplary fashion throughout the hearing of the case. They have been punctual, attentive and obviously are taking the trial seriously. Time after time I have repeated to them that they are judges of the facts, bound by their oath to bring in a true verdict according to the evidence in this case and nothing else. Usually I have tied this direction to a statement to ignore anything they hear or see that is not the subject of the evidence. I have every reason to believe that they will comply with this direction.
As Kaye J said in R v Dupas:[3]
“… it is important not to overlook, or underestimate, the capacity of juries and the increasing sophistication of our juries. Historically juries have shown, time and again, the ability to focus on the evidence and the issues which are at large in a trial before them, unaffected by negative or sensational publicity which might have preceded the trial. Particularly in more recent decades, verdicts of juries, both in criminal and civil cases, have reflected the fact that juries do take seriously judicial directions given to them that they must bring in a verdict according only to the evidence, and not according to any prejudice which they may have about the parties or the cause which is before them.”
[3][2004] VSC 253 at para 53.
I accept that those words relate to a slightly different circumstance from that now before me, but I consider nevertheless that they are apposite to the matter before me.
Those words were approved by the Court of Appeal in R v Dupas (No. 2)[4] and in particular by the Chief Justice at paragraph 46.
[4][2005] VSCA 212.
Furthermore, the publication has occurred at a point of my address when I am about to spend at least a week summarising the evidence. The summary of the evidence commenced yesterday. It will be followed by a detailed summary of the way in which the addresses of all counsel analysed the evidence. Over the next two weeks there will be a concentrated consideration of the evidence given in the trial. In my view the fact that that is to occur at this point of time will reduce dramatically any impact of what has been published by the Sunday Age, in the event that a juror may have read it. Paradoxically, and notwithstanding the unfortunate nature of the publication, one could argue that at least it has occurred at a time when the jury are receiving a solid reinforcement of the evidence which has been given before them in the trial.
I might add that even if a juror were to mention to his fellow jurors that he had seen such an article, I am totally confident, taking into account my directions, and the demeanour of jurors noted by me throughout this trial, that such a juror would be reminded by other jurors of my directions. The jury have been told on numerous occasions that justice and their oath require a true verdict to be brought in on the evidence before them, and on nothing else.
As stated by me at the start of this ruling, this trial has occupied many days and consumed huge public resources. The accused men have been held in custody for nearly three years. To discharge this jury at this stage would be a grave step indeed, with many repercussions. However, if I were to come to the conclusion that there is a risk of an unfair trial by reason of a reasonable apprehension or suspicion that the jury would not discharge its task impartially, I would not only have no hesitation in doing so; I would be obliged to do so.
After consideration I am satisfied that in all the circumstances the publication by the Sunday Age of impermissible material is such that it does not give rise to a reasonable apprehension or suspicion on the part of a fair minded member of the public that the jury will not discharge its task impartially. In particular, this jury has behaved in such an obviously responsible manner throughout this long trial that I am doubly confident they will comply with their oath. There is no necessity to discharge the jury.
Accordingly, I conclude that the four applications made before me should be dismissed.
However, the fact that on the 107th sitting day of this trial I have declined to discharge the jury renders the conduct of the Sunday Age no less culpable.
It is incomprehensible to me that a newspaper that would no doubt represent itself to its readers as being a responsible publication, could so recklessly place the interests of the community and the accused at the risk of discharge of this jury. The negligence revealed by the publication of this article at such a critical stage of this trial is of staggering proportions. There have been suppression orders on foot relating to the pleas and sentences of co-accused. Throughout this trial the Courts Information Officer has reminded the press repeatedly that only matters which have been the subject of evidence before the jury should be published.
The press complain, (sometimes with justification), about too many suppression orders being made. However, when conduct as grossly irresponsible as this is occurs, it is hardly surprising that some judicial officers would prefer to exercise caution rather than tolerate the risks caused by incompetent or reckless journalists and editors.
If the jury were to be discharged in this case undoubtedly the cost to the community would be several million dollars. The inconvenience to 13 jurors who have all now given up six months of their lives would be intolerable. The prospect of the accused men, (who it should be remembered are in detention) having their trial delayed by a year or more would be totally unjust. The likelihood of getting this number of witnesses together again would be remote, and even if possible would be costly indeed. That leaves aside the risks to a fair trial and to the proper administration of justice caused by failing memory and delay since the events in question.
The trial is likely to end soon. Indeed, the article says, “The trial before Judge (sic) Murray Kellam is expected to end this week.” That statement, like other statements in the article, is not correct but it shows the state of mind of the author. Why would risks of this description be taken by the Sunday Age when the trial is to end soon? At the minimum, the publication has caused these applications to be made. I have had to cease work on my charge at this critical stage of the trial to deal with this matter. These applications are not without their own cost to the community in that hearing time has been consumed. The jury is sitting patiently in their jury room now as I am handing down this ruling when they should be listening to the charge.
This conduct of the Sunday Age is a clear example of the necessity for newspapers and other media representatives to have experienced court reporters dealing with court proceedings. It is a clear example of the necessity for reporters and editors to take care to ensure that reporting is accurate and that material which is not the subject of evidence placed before the jury is not to be reported whilst the trial is underway.
Because of the gravity of the conduct of the Sunday Age, I intend at the conclusion of the trial, to give consideration as to whether the matter should be referred to the Prothonotary for advice to be taken from the Solicitor-General as to contempt proceedings.
I might add that part of the evil of the publication of extraneous material is that the trial judge often cannot correct it by appropriate direction. When, as here, material which is not evidence put before the jury is published, it is often not possible for the judge to direct the jury specifically without drawing attention to the matter. That makes the publication of such material of much greater gravity than misstatements as to the evidence led before the jury. The case before me is such a case. To direct the jury to ignore the material would aggravate the matter.
I propose to direct the Courts Information Officer to send a copy of this ruling to relevant media outlets to ensure that they have a clear understanding of their responsibility.
Finally, the question of whether I should suppress the publication by the media of the fact of this application, of the submissions made, and of this ruling, now arises. I should add that up until last Sunday morning the question of suppression of publication of a ruling made in the absence of the jury, would rarely have warranted consideration. As I have said the Courts Information Officer repeatedly warns the media about the risks of publication of matters not before the jury in the period before and in the course of trials. Experienced court reporters and the responsible media understand this clearly. I do not intend to make an order suppressing the publication of the making of these applications and of this ruling. However, the irresponsibility displayed by the Sunday Age last Sunday compels me to say, what prior to this, I had believed to be obvious to the media. The publication during a trial of material relating to an accused person, which material is not the subject of evidence before the jury, is on the face of it a serious contempt of court. The same applies to anything said in the absence of the jury, be it by witnesses, counsel or by the trial judge.
Quite clearly the publication of the fact of these applications, of the cause of them, or anything said in the course of them, and this ruling prior to the verdict in this case would be a contempt of the highest order.
I direct that the original article be placed upon the Court file.
Finally, I was informed by Mr Champion yesterday that the article in question was on the Sunday Age web site. It should be removed forthwith!
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