R v Choi (Pong Su) (No 5)
[2005] VSC 3
•30 March 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1424 of 2004
| THE QUEEN |
| v |
| TA SONG WONG 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: | 30 March 2005 | |
CASE MAY BE CITED AS: | In the Matter of the Pong Su (Ruling No. 5) | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 3 | |
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CRIMINAL LAW – Flight as evidence of consciousness of guilt – Ship and crew leaving the scene of alleged importation of heroin – Ship failing to stop when radio operator of ship ordered to do so – Whether evidence capable of amounting to consciousness of guilt on part of the Master, and/or other crew members charged with aiding and abetting the importation of heroin into Australia.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr J. Champion S.C. with Mr M.P. Cahill | The Solicitor for the Commonwealth Office of Public Prosecutions |
| For Ta Song Wong | Mr A.R. Lewis | Lethbridges |
| 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 with Mr T. Wraight | Leanne Warren & Associates |
HIS HONOUR:
The issue to be determined is whether the prosecution may rely upon the alleged flight of the accused persons, Man Sun Song (Song), Dong Song Choi (Choi), Man Jin Ri (Man Ri) and Ju Chon Ri (Ju Ri) by ship from the place of an alleged importation of heroin to Victorian shores, as evidence of consciousness of their guilt or the guilt of one or other of them of aiding and abetting such importation.
Background
The Pong Su is a 106.4 metre vessel built in Japan in 1980. It sailed from Nampo, a sea port on the North Korean coast, on 25 February 2003 to Tianjin, a temporary mooring place, and then to Xinggang for ship repairs. The ship departed Xingang on 11 March 2003 and arrived at Yantai on 13 March 2003, where a cargo of feldspar was loaded. On 25 March 2003 the Pong Su arrived at Singapore where nearly 450 metric tons of fuel was loaded. That day the flag of registration of the ship was changed from that of North Korea, to that of Tuvalu, a flag of convenience nation. On 28 March 2003 the ship arrived in Jakarta where the cargo of feldspar was unloaded. The ship departed Jakarta on 1 April 2003, declaring Melbourne as its next intended port of call.
The prosecution intends to lead evidence that no notification of impending arrival of the Pong Su was received by the Australian Quarantine Inspection Service, nor was an “Impending Arrival Report” or “Crew List” submitted to Australian Customs as is required prior to arrival at an Australian port.
At about 1.00 p.m. on 15 April 2003, local residents of Wye River observed a ship very close to shore. It was then observed to be travelling north to Boggaley Creek, about sixty nautical miles from the Port of Melbourne. During the course of the evening the ship was seen to be brightly illuminated close to shore. There was no communication from the ship with Melbourne Harbour Control.
A small inflatable dinghy was located on the shoreline at Boggaley Creek early on 16 April 2003. Later that morning the body of a deceased Asian male was discovered hidden under kelp on the beach at Boggaley Creek. Following a comprehensive search of the area, an Asian man, later identified as Ta Song Wong, was found the next afternoon, hiding in dense scrub above Boggaley Creek.
On the morning of 16 April 2003, two large packages of heroin were seized from the back of a Tarago van driven by Kiam Fah Teng. The fingerprints of the accused man Wong were located on the inner lining of one of the packages. Subsequently three packages of heroin were located by police approximately 1.8 kilometres west of Boggaley Creek.
Evidence will be led before the jury that at 9.53 a.m. on 16 April 2003 a chartered surveillance flight was undertaken by police near Boggaley Creek. The Pong Su was identified and videoed from time to time until 1.30 p.m. During the morning the Pong Su was observed to be approximately one kilometre from shore shortly before 11.00 a.m. It was seen to sail in a westerly direction towards Apollo Bay and then to turn and travel in a southerly direction away from land. At 4.30 p.m. on 16 April 2003 the master of the Tasmanian Police Patrol vessel, Van Dieman, was given instructions to intercept the Pong Su, and the Van Dieman left Point Beauty at approximately 9.30 p.m.
At about 6.30 a.m. on 17 April 2003 Federal Agent Flohr, on board the Van Dieman, attempted to make radio contact with the Pong Su. By radio he said that he was aboard a “Police and Customs vessel” and ordered the ship to travel to Melbourne. A person responded to the Federal Agent by radio that “we cannot return to Melbourne.” In this and subsequent communications, until about 7.30 a.m., the person told Federal Agent Flohr that he was seeking advice from the captain and his government. He said that the ship was heading for Papua New Guinea to pick up timber.
Having identified himself as one Choi Ryong Kon, the radio operator stated at 9.40 a.m. that ‘they’ were considering the order to proceed to Sydney and at 10.00 a.m. communicated an intention to comply with this request. At 1.00 p.m. the radio operator said that the Master would permit the course to be changed and that the ship would head for Sydney.
At approximately 2.30 p.m. the ship was requested by radio transmission from the Van Dieman to alter its course to proceed to the port at Eden, on the south coast of New South Wales. The radio operator Choi stated in response that further instructions from the owner were that the Pong Su was to continue to its destination of the Solomon Islands.
At about 5.35 p.m. on 17 April 2003 the New South Wales police vessel Fearless was put to sea in order to maintain surveillance of the Pong Su. At 11.35 p.m. the radio operator of the Pong Su, in response to a direction issued from the Fearless to sail to Eden, said that the Pong Su was suffering a mechanical breakdown and that they were going to shut down the engine to effect repairs. Smoke from the funnel of the ship ceased and the “Not under Command” lights were illuminated on the ship. Repeated endeavours to be in touch with the Pong Su by radio transmission from the Fearless met with no response throughout that night.
At 5.30 a.m. on 18 April 2003 it was observed by those aboard the Fearless that smoke was coming from the chimney of the Pong Su, although it was still not making its way under steam.
At 7.10 a.m. the Fearless contacted the Pong Su requesting a status report on repairs and repeating directions for it to make its way to Eden to which the radio operator replied that it would make for Eden after “breakfast”. Shortly thereafter the Pong Su started at a speed of 10–12 knots in an easterly direction away from the Australian coast. At 7.29 a.m. the radio operator of the Pong Su enquired of the Fearless “What will you do if we do not alter course?” The response was “You are in breach of the Australian Customs Act”. The Fearless chased the Pong Su for several hours with siren and lights activated.
Between 8.35 a.m and 9.16 a.m. the Fearless with lights and sirens activated cut across the bow of the Pong Su on numerous occasions but otherwise stayed alongside within 100 metres of the ship making constant demands by radio transmission to the Pong Su to alter course and head for Twofold Bay.
Due to deteriorating weather conditions the Fearless terminated pursuit at 11.20 a.m that morning. The Pong Su continued in an easterly direction away from the Australian coast.
HMAS Stuart, a Frigate of the Australian Navy, began tracking the Pong Su at approximately 7.30 p.m. on 18 April 2003 and it maintained tracking of the location and heading of the Pong Su until 20 April 2003. At 6.50 a.m. on 20 April 2003 the Commanding Officer of the HMAS Stuart issued an order to conduct the boarding of the Pong Su. This commenced at 7.34 a.m. with the Australian Navy subsequently taking over command and navigational responsibilities of the Pong Su.
Subsequently it was ascertained that the accused man Man Sung Song is the master of the Pong Su. Dong Song Choi is said to be the “political secretary” of the ship. Man Jin Ri is the first officer and Ju Chon Ri is the chief engineer. The indictment filed against each of them is that between 25 January 2003 and 16 April 2003 at Boggaley Creek in Victoria and elsewhere they did aid, abet counsel or procure the importation of narcotics into Australia.
Submissions on behalf of the accused
Each of the abovenamed four accused persons submits that all evidence of the activities of the ship subsequent to its departure from Boggaley Creek is inadmissible as being post offence conduct which is not relevant to any fact in issue in the trial. In particular they all submit that there is no basis upon which the prosecution may be permitted to rely upon the evidence of the flight of the ship from Australian authorities as consciousness of guilt on any of their parts.
It is submitted by Mr Hayden of counsel for the master, that the prosecution case in relation to flight as evidence of consciousness of guilt does not reach the threshold of admissibility for post offence conduct. Mr Hayden relies upon R v Hartwick[1] where it was said:
“For such material to be used to demonstrate a consciousness of guilt in a case such as the present, the jury must be satisfied that the conduct of the accused cannot be explained by any other reasonable hypothesis.”
Mr Hayden submits that the evidence is that the Pong Su was on a journey, acting under instructions from the owners of the ship, who employed the accused, and it is not possible for the Crown to exclude other explanations for the actions of the master in being in charge of a ship which refused to stop when ordered to do so. In particular Mr Hayden submits that the prosecution cannot exclude the fact that the master may have been acting upon instructions from the Pong Su Shipping Company.
[1]Unreported, Victorian Supreme Court of Appeal, 20 December 1995
The most significant other possible explanation for flight, it is submitted by Mr Hayden, is a political one. The evidence is that the ship was the first North Korean ship known to enter Australian waters for 17 years and was operating in an alien area. The Iraq War had recently commenced and, it is submitted that at the time there were a number of statements being made by “western powers” about North Korea. In the submission of Mr Hayden, all of this amounts to a reasonable hypothesis consistent with the flight of the ship not demonstrating any consciousness of guilt on the part of his client. Accordingly the evidence ought not be admitted because it does not reach the threshold, which he submits to be, that the evidence must be capable of sustaining an inference of consciousness of guilt excluding other explanations or other hypotheses which may be consistent with innocence.
Mr Wraight of counsel, who appears with Mr Russell for the chief engineer relies upon the evidence that the only reason given to the radio operator of the Pong Su for orders given to the Pong Su to stop, was that of “customs offences”. No information was passed on to the ship in relation to the allegation of importation of heroin. Accordingly, Mr Wraight submits that those on the ship could equally have been fleeing because they had “committed an immigration offence”.
It is submitted that the second reason why the argument that the evidence should be admitted as showing consciousness of guilt fails, is that it is not clear what responsibility the Crown can allocate to each separate accused person. The only person who spoke on behalf of the Pong Su during the pursuit was the radio operator. It is submitted that any statements made by him amount to hearsay and the Crown is not in a position to attribute his statements to any of the accused men.
Mr Wraight further submits that the circumstances here are unique and that a “moveable object” with a number of men on board and which is departing from the place where a crime has been committed is an entirely different situation from the flight of a group of persons from an assault or a robbery.
Finally it is submitted by Counsel on behalf of each of the accused master, political officer, first officer and first engineer, that if the evidence were to be admitted as consciousness of guilt, it would be prejudicial if the defence were required to introduce prevailing political matters at the time that the Pong Su sailed around the east coast of Australia. In reliance on the authority of R v Hartwick, where it was considered by the Court to be unfair for the accused to have to introduce evidence of a second armed robbery to rebut the notion of consciousness of guilt, it is submitted that it would be unfair for the four accused men to have to contemplate introduction of politics to explain a fear they may have had of the Australian authorities. It is submitted that this would be extremely prejudicial and, accordingly, an appropriate basis for an exclusion of the evidence in exercise of judicial discretion.
The Prosecution Submission
The prosecution contends that the Pong Su left the vicinity of Boggaley Creek in an attempt to evade the Australian authorities and that during the following days it maintained a concerted attempt to avoid apprehension. In making this submission it points to the occurrence of the following alleged events:
·The disembarkation of two men, Wong and the deceased man, from the Pong Su late on 15 April 2003 or early on 16 April 2003;
·The transfer of a commercial quantity of heroin from the ship to the shore;
·The failure of the two men to return to the ship;
·The likely observation by those on the ship as to the arrival and involvement of police on shore at Boggaley Creek; and
·The event of leaving and taking flight being contemporaneous with the dispatch of heroin and the loss of the two men.
It is submitted that from the point at which the ship left the area of Boggaley Creek until the point at which it was finally the subject of interception there was a deliberate failure by those operating the ship to comply with repeated requests of Australian authorities to stop and pull into port. The pursuit of the ship was overt and, it is submitted that this conduct is capable of constituting consciousness of guilt on the basis that the conduct is capable of precise identification; it was deliberate and it is capable of being seen as connected materially to the offence that was committed at Boggaley Creek.
It is submitted that the evidence of flight of the ship as evidence of consciousness of guilt is 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. The prosecution case is that all of the four men were decision makers on the ship and were responsible for the movements of the ship.
Counsel for the prosecution likened the pursuit of the ship to a group of men present in a car, leaving the scene of a crime in which they were all implicated, being obviously chased by the police. Counsel distinguished the authorities of R v Hartwick and R v Chang[2], noting that in Hartwick there was another offence which had been committed by Hartwick thus preventing him from defending the Crown argument of consciousness of guilt, as to do so would necessarily have revealed the existence of the second offence.
[2][2003] VSCA 149
Chang was distinguished on the basis that the defence was that a lesser offence had been committed and any consciousness of guilt could have sprung from the commission of either offence. In the case of the accused men aboard the Pong Su, it is submitted on behalf of the Crown that whilst there may be other explanations for the flight, these are matters of evaluation for the jury. Accordingly, provided that the jury is directed properly as to the other explanations, the evidence of flight should be led as consciousness of guilt.
Ruling
First, it must be kept firmly in mind that there are four separate trials being heard together in relation to the four accused persons who, the prosecution submits were, by their post offence conduct of fleeing the scene, conscious of their guilt of aiding and abetting the importation into Australia of a quantity of heroin. Criminal responsibility for flight does not attach to the ship, rather the ship was, like a motor car or an aircraft, the vehicle by which the alleged flight occurred. Any evidence of flight, and any consequent use of alleged consciousness of guilt derived therefrom is capable of being used only in each separate case against each accused man and only in relation to his own state of mind.
It is the prosecution case that by reason of their positions of authority on the vessel as master, political officer, first officer and chief engineer, all of the four accused persons had a state of mind that reveals their individual consciousness of guilt. However, clearly mere knowledge will be insufficient grounds to obtain conviction. The jury will need to be satisfied by the evidence that each such person played an active role in assisting the commission of the offence.
To a certain degree, the admission of evidence of flight as consciousness of guilt is circular. The contention of the Crown is that the Pong Su, under the direction and control of the four accused men, fled the vicinity of Boggaley Creek because it had delivered the two men and the heroin there and, subsequently, became aware of police investigations on the beach. Not wanting to be caught by Australian authorities, the accused men on the Pong Su departed. Accordingly, it requires an acceptance of the prosecution case that heroin was imported into Australia by use of the Pong Su in order to be a viable argument.
In The Queen v Burrows[3] Burrows was accused of shooting another man and then fleeing the state by car. There Charles JA drew the distinction between situations where the conduct has no probative value, and others where evidence of post offence conduct is proper to be put to the jury but the jury must be instructed properly so as to ensure that the evidence is not misused. He referred to the Canadian case of R v White[4] where the Court said that:
“It has been recognised, however, that when evidence of post-offence conduct is introduced to support an inference of consciousness of guilt it is highly ambiguous and susceptible to jury error. … In particular, a jury might impute a guilty conscience to an accused who has fled or lied for an entirely innocent reason, such as panic, embarrassment or fear of false accusation. Alternately, the jury might determine that the conduct of the accused arose from a feeling of guilt but might fail to consider whether that guilt relates specifically to the crime at issue, rather than to some other culpable act.”
[3][2003] VSCA 130
[4](1998) 125 CCC (3) 385 at 398-9
As Charles JA said in R v Chang[5], it is well recognised that, particularly in relation to flight, evidence of post offence conduct may be both highly ambiguous and susceptible to error. In R v Chang Ormiston JA discussed the relevance of particular pieces of evidence in a complex circumstantial case, such as this. He said[6]:
“Arguably, if the prosecution is not going to be permitted to argue that inferences relevant to guilty intent should be drawn from evidence of later circumstances, then that evidence should be excluded entirely from the trial as irrelevant. More often than not, nevertheless, such evidence may be admitted for a limited purpose such as showing that some account of the accused cannot be relied upon or, perhaps not so frequently, to support a circumstantial case intended to establish the res gestae.”
[5](2003) 7 VR 236 at 251.
[6]At 238.
Furthermore, Ormiston JA made it clear that where evidence of this kind is admitted in support of a circumstantial case and where the purpose is to establish the guilt of an accused, or where it can be said that conduct such as “flight of itself may lead the jury to the conclusion that the accused is guilty, or more precisely that the accused had a guilty mind at the time the facts and circumstances making up the constitutional elements of offence took place”[7] that an appropriate warning to the jury such that would satisfy the requirements of Edwards v The Queen[8] is required.
[7]At 239.
[8](1993) 178 C.L.R. 193
This was also the conclusion of the Court in the matter of R v Nguyen[9], a case where the post offence lies and conduct of Nguyen were admitted without the provision of an Edwards direction by the trial judge. Winneke P said of this at 487:
“Post-offence conduct, including lies, only becomes probative because it stems from a consciousness of guilt. The strength of its probative value, however, will depend upon its nature and the use which is sought to be made of it. It will rarely be the case that its strength is such that it can prove guilt directly. Generally, as here, it will form part of the body of circumstantial evidence from which the jury is asked to infer the guilt of the accused. Where that is the case, it has been said that the employment of the term ‘consciousness of guilt’ is misleading because it suggests a conclusion about the conduct which undermines the presumption of innocence. However, where the conduct is being used, and is capable of being used, to prove guilt, the trial judge must, in my view, be astute to the clear possibility that the jury will so use it, and to give such directions as are needed to ensure that it is not misused.”
[9](2001) 118 A Crim R 479
Care needs to be taken in the manner in which evidence of post offence conduct is introduced. In R v Nguyen, the President found that although the prosecutor avoided the words “consciousness of guilt” he intended that the jury use that conduct in proof of guilt. There was a real risk in that case that the jury would reason that the conduct of the accused was capable of proving that a shooting of a victim was not an accident, whereas the conduct was capable of having an explanation other than that.
The issue to be determined by me involves the question of whether the conduct of each of or one or other of the accused men in resisting attempts by the Australian authorities to bring the Pong Su into an Australian port is probative of guilt. Put another way, does such conduct demonstrate that the accused person in question had a guilty mind at the time of the alleged importation of narcotics into Australia?
In my view the endeavours of those who had control of the ship to depart from Australian waters and the resistance of those who had such control of the ship to comply with the clear directions of Australian authorities to bring the ship to port in Australia is probative of guilt. Clearly if that conduct is equivocal then it should not be permitted to go to the jury as evidence of guilt. The alternative explanation, or hypothesis, which has been argued before me is that those in control of the ship may have been complying with orders of others, and in particular the Pong Su Shipping Company in taking the actions they did and/or that being a North Korean ship in Australian waters they had a genuine fear that their apprehension may cause them some harm. A further alternative hypothesis suggested by counsel for the first officer is that because the radio transmissions to the Pong Su made allegations to the ship that the ship was in breach of the Australian Customs Act those in authority on the ship may have concluded that they were being pursued by the authorities for offences which may have been committed by them other than the involvement in heroin importation.
The submission that an alternative explanation is that those in charge of the ship may have been under instructions from the owners of the ship not to comply with the requests of Australian authorities is not the basis of any evidence but rather is based upon speculation. In any event, it ignores the fact that the master has control and responsibility for the conduct of his ship.
In my view the suggested alternative hypothesis that those in control of the ship might have some fear of apprehension by reason of “political issues” is, at least on the evidence before me, somewhat fanciful. It should be observed that the precise nature of that fear has not been articulated by Mr Hayden or by any other counsel. No evidence was put before me to establish the basis of such fear. Mr Hayden merely pointed out that there were international issues applicable at the time whereby some western leaders had made remarks about North Korea being a party to an “axis of evil”. He did not articulate however, what consequence this matter had or might arguably be said to have had in relation to the state of mind of the accused men. It should be remembered that the ship was sailing under a Tuvaluan flag; it had been in Australian waters for many days having travelled down the west coast of Australia and across the southern coastline. As I understand the case for the accused it is asserted that it was intended to bring the ship to port in Melbourne, and to pick up a legitimate cargo of motor cars. Thus, if there was a fear of what Australian authorities might do in relation to a ship sailing legitimately under Tuvaluan registration, but manned and owned by North Korean persons, why did such fear not exist as the ship travelled down the heavily patrolled north western waters of Australia? What precisely is the nature of the fear that provides the alternative hypothesis? Is it, that notwithstanding the fact that Australia has diplomatic relations with North Korea, and that North Korea has an embassy in Canberra, and that both countries are signatories to international maritime conventions, that Australian authorities would breach international and its own domestic law? The above observations make it clear to my mind that the loosely articulated “political issue” upon which the accused men rely (at least on the evidence now before me) cannot be considered to be a reasonable alternative hypothesis so as to say that the conduct of flight by those in authority upon the ship is so equivocal that it should be excluded from the considerations of the jury.
The argument advanced on behalf of the first officer that because advice given to the radio officer that the ship was required to go to an Australian port because of alleged breaches of the Customs Act, and because there was no mention by Australian authorities that the proposed apprehension was by reason of heroin importation, an alternative hypothesis for the flight might have been a belief by those in authority that other offences, such as migration offences may have been committed is in my view not compelling.
As part of the circumstantial case of the prosecution that the Pong Su came to Australia with 32 persons on board, that two persons took a dinghy loaded with 150 kg of heroin to the shore to meet a waiting shore party, that the dinghy became inoperable, that one occupant died, that the remaining occupant did not and could not return to the ship, and that the ship left and those in authority defied attempts to have the ship stop, the evidence of flight is probative. It appears to me to be both sensible and proper that the jury have the opportunity in all the circumstances of this case, to consider whether or not that what the persons in authority upon the Pong Su did shortly after the importation of the heroin into Australia, shows them to be acting with the intention to escape punishment for their crime. This evidence, in my view, can be considered properly as evidence of a circumstantial kind and as part of the evidence, and in combination with all the other evidence in the circumstantial case against such of the accused as may be proved to have had authority and control over the conduct of the ship.
Clearly however, such evidence, if admitted, must be the subject of an appropriate direction to ensure that the jury do not misuse it.
I turn now to the issue raised by counsel for the accused that the presentation of the proposed alternative hypothesis for the flight of the ship, that its crew may have been for some reason fearful of “political” matters in which North Korea and Australia may have been involved. It will be necessary in this trial to ensure that irrelevant matters of a potentially prejudicial nature do not intrude into the considerations of the jury. The jury will receive clear directions about this matter. I have no doubt that they will comply with their oath. They will receive directions about the use that may be made of the evidence and if it is contended that an alternative hypothesis does have political overtones of some prejudice, they will receive a direction in relation to the matter. I do not consider that this issue is so prejudicial as to negate the probative nature of the evidence of flight.
The next matter is whether the evidence in question is probative of the guilt of any and if so which of the four accused crew members.
I am satisfied that there is sufficient evidence to say that the Master of the Pong Su had authority and control over the ship. 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.
In such circumstances I conclude that the evidence of the flight of the ship under his command is 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.
However, I am not satisfied at this stage that the evidence is capable of being used in this manner against the other members of the crew who have been charged with aiding and abetting the importation of the heroin into Australia. However, that issue may be considered further at the close of the evidence, and appropriate directions may be given to the jury in respect of the manner in which the evidence may be used.
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