R v Choi (Pong Su) (No 28) - [2006] VSC 30

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

---

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

---

CRIMINAL LAW – Application for discharge of jury – Publication by newspaper of prejudicial material not the subject of evidence before the jury – Application dismissed.

---

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 107^th 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…

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.

Keep reading for free

Create a free CaseChat account to read R v Choi (Pong Su) (No 28) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] VSC 30
Decision Date: 7 February 2006

CaseChat Overview and Summary

In this case, the applicant, Choi (Pong Su), was charged with five counts of assault occasioning actual bodily harm and one count of assault causing death. The matter was heard in the Supreme Court of Victoria. The applicant sought the discharge of the jury due to a newspaper article published by The Herald which the applicant argued contained prejudicial material that was not part of the evidence presented to the jury. The court had to determine whether the publication of the article by the newspaper constituted a substantial risk of prejudice to the applicant’s right to a fair trial.

The court examined the nature of the article and whether it was capable of influencing the jury’s decision. The court noted that the article did not contain any specific details of the evidence presented in court but rather provided general information about the case and the applicant’s background. The court found that the article did not directly prejudice the applicant's right to a fair trial, as it did not introduce any new or prejudicial evidence. The court also considered the timing of the publication and the measures taken by the applicant's legal team to mitigate any potential prejudice. The court concluded that the article did not create a substantial risk of prejudice to the applicant's right to a fair trial.

The Supreme Court dismissed the applicant's application for the discharge of the jury. The court held that the newspaper article did not contain prejudicial material that was not subject of evidence before the jury, and thus did not warrant the discharge of the jury. The trial proceeded as scheduled, with the jury delivering its verdict on the charges against the applicant. The court’s decision highlights the importance of maintaining the integrity of the judicial process and the measures that can be taken to ensure a fair trial in the face of external influences.

Orders