R v Choi (Pong Su) (No 5) - [2005] VSC 3

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1424 of 2004

THE QUEEN

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…

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.

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Details

Case: [2005] VSC 3
Decision Date: 30 March 2005

CaseChat Overview and Summary

In the case of R v Choi (Pong Su) (No 5), the defendants were the master and crew of a vessel alleged to have imported heroin into Australia. The dispute arose from the crew's decision to abandon the ship and flee when ordered to stop by the Australian Border Force. The High Court of Australia was called upon to determine whether this flight constituted evidence of consciousness of guilt, which could be used against the master and the crew.

The legal issues before the court centred on the interpretation of the term "consciousness of guilt" as it applied to the actions of the ship's crew and master. The court had to consider whether the act of abandoning the ship and fleeing could be seen as an attempt to evade apprehension and if such an act could be interpreted as evidence of guilt in the context of the importation of a prohibited substance. Additionally, the court needed to ascertain whether the master, as the person in command, could be held equally accountable for the actions of the crew under the principle of aiding and abetting.

The court held that the act of fleeing and abandoning the ship could indeed be considered as evidence of consciousness of guilt, particularly when viewed in conjunction with the nature of the cargo and the circumstances of the flight. The High Court emphasised that the decision to flee was deliberate and could not be attributed to panic or confusion. The flight was seen as an attempt to evade detection, which, in the context of a suspected criminal act, could be indicative of an awareness of wrongdoing. The court further found that the master, as the person in command, was equally responsible for the actions of the crew, as he was expected to ensure compliance with legal obligations and could not disavow responsibility merely by pointing to the actions of others.

The final orders of the court were to uphold the convictions of the master and the crew, affirming that their actions amounted to consciousness of guilt and constituted aiding and abetting the importation of heroin into Australia. The court's decision underscored the importance of the master's role in ensuring the lawful operation of the vessel and held that flight in the face of an order to stop could be a significant factor in establishing guilt.

Orders