R v Choi (Pong Su) (No 6)

[2005] VSC 5

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No.  1424 of 2004

THE QUEEN

v

MAN SUN SONG
JU CHON RI

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JUDGE:	KELLAM J.
WHERE HELD:	MELBOURNE
DATE OF RULING:	27 January 2005
CASE MAY BE CITED AS:	In the Matter of the Pong Su (No. 6)
MEDIUM NEUTRAL CITATION:	[2005] VSC 5

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CRIMINAL LAW – Evidence – Admissibility of evidence of Marine Surveyors – Expression of opinion of requirements of the International Convention and/or Australian Maritime Law – Expert evidence that engine of ship had not had a cylinder change recently – Whether admissible as expert evidence.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr J. Champion SC with Mr J. Cahill	Solicitor to the Director of Public Prosecutions (Cth)
For the Accused Man Sun Song	Mr P. Faris Q.C. with Mr I. Hayden	Ellinghaus & Lindner
For the Accused Ju Chon Ri	Mr Wraight	Leanne Warren & Associates

HIS HONOUR:

1. The prosecution seeks to call two marine surveyors, Mr Aubrey Wise and Mr Patrick McAuley, to give expert evidence about a number of matters relating to the operation and control of the ship the Pong Su whilst it was in Australian waters in April 2003.  In addition, Mr McAuley relies upon his examination of an engine room logbook in expressing his opinion as to the issue of whether the presence of the Pong Su near Boggaley Creek on the night of 14 April 2003 can be attributed to mechanical problems with the ship’s engine.  Mr Hayden of counsel who appears for the Master of the Pong Su, Song, objects to the admission of part of the proposed evidence of Mr Wise.  Mr Wraight of counsel who appears for the chief engineer of the Pong Su, Chon Ri, objects to the admission of part of the evidence of Mr McAuley and further submits that entries in the engine logbooks upon which Mr McAuley has relied in expressing part of his opinion are inadmissible as against his client.  The issue of the admissibility of entries in the engine log book will be the subject of a separate ruling. 

The Evidence of Mr Aubrey Wise

1. Mr Wise is a marine surveyor with extensive experience in the shipping industry as a marine surveyor.  Mr Hayden takes no exception to the qualifications of Mr Wise.  However, he submits that part of the proposed evidence of Mr Wise should be ruled as inadmissible on the basis that Mr Wise purports to express an opinion as to matters of law.  In his statement Mr Wise states in relation to the Master that:

“He is vicariously responsible for any breaches of the Australian Navigation Act 1912.  Eg pollution of the sea.  As the Master of a ship registered in Tivalu (sic) he should have held a Tivaluan Master’s Certificate of Competency, Foreign Going.  A North Korean Master’s Certificate would not be valid for the purpose of sailing as Master of the Pong Su.  North Korea and Tivalu are non-convention countries and each would have its own requirements.  When a non-convention ship arrives at a convention country’s port it would be subject to the laws of that country.  (In Australia the Navigation Act 1912 s. 206V refers.)”

Mr Hayden contends that the above statement involves matters of law about which Mr Wise cannot give evidence and, furthermore, is irrelevant to the issues before the jury. 

1. In addition to the above matter the statement of Mr Wise contains the following paragraph:

“Under the provisions of the International Maritime Organisation (IMO) each of the countries that are signatories to the Safety of Life at Sea Convention 1974, as amended, require their ships of over 300 gross tons to be fitted with a Global Maritime Distress Satellite System (GMDSS) after the 1^st February 1999.  The ‘Pong Su’ being over 300 gross tons would need to be equipped with this system which is a fully automated calling and listening radio system.”

As to this matter, Mr Hayden submits that it is irrelevant and that the prosecution should not be permitted to lead evidence of breach by the ship of any Convention or any international law except insofar as the prosecution may demonstrate that such breach has distinct relevance to the allegation of importation of heroin into Australia.

1. The prosecution submits that the evidence in question is relevant and admissible.  In particular it is submitted that it is part of the circumstantial case against each of the accused crew members of the Pong Su that the ship changed its flag of identity shortly before commencing its voyage to Australia.  It is submitted that this piece of evidence is a relevant part of the circumstantial case which goes to the issue of whether the Pong Su was carrying illegal cargo, and whether those accused who are members of the crew, had knowledge of the nature of the cargo on board.  As to the evidence relating to the GMDSS, the prosecution submits that such evidence is relevant to demonstrate that information would have been transmitted to and from the ship.

Ruling as to the admissibility of the evidence of Mr Wise

1. The opinion expressed by Mr Wise that a North Korean Master’s Certificate would not be valid for the purpose of sailing as master of the Pong Su is an opinion of law.  There is of course no reason why Mr Wise cannot produce the legislation and/or relevant conventions upon which he bases his statement to that effect, but the issue is either clearly established by the relevant law or it is not.  That is not a matter for expert evidence by a marine surveyor.  However even if the legislation is produced the question of relevance remains.  The prosecution submits that the evidence of the change of flag by the Pong Su to that of Tuvalu is relevant as part of the circumstantial picture which goes to the issue of whether or not illegal cargo was carried by the ship and to the knowledge of the relevant accused members of the crew of such cargo.  Whether evidence of the conduct of changing the registration of the ship is admissible is a matter upon which counsel for the Master and counsel for Choi seek to make submissions.  However, assuming that such evidence is admissible, unless evidence that any failure of the master of the Pong Su to hold the relevant master’s ticket can be relevantly connected to the fact that there was a change of flag to a “flag of convenience” by the ship, I do not consider this evidence to be relevant at an appropriate time.  I will reserve to the prosecution the right to argue that there is some relevant connection should it be so desired.

1. As to the admission of the evidence by Mr Wise that the ship should have had a GMDSS by reason of the relevant International Maritime Organisation Convention, similar issues arise.  Assuming that the ship was not in compliance with the relevant Convention, which would need to be proved by a production of the Convention, the mere fact of non-compliance does not appear to me to be relevant to the issues before the jury.  The fact that the ship is required by the Convention to have a GMDSS does not prove that the ship had such a system, and thus prove that “information would have been transmitted to and from the ship” as submitted by the prosecution.  Thus in the absence of any other material connecting the evidence to the issues before the Court, this evidence is not relevant.  I will reserve to the prosecution the right to make further submissions as to relevance if other material exists. 

The evidence of Patrick McAuley

1. Mr McAuley is a marine engineer with extensive experience in the shipping industry in UK, Australia and Asia.  His extensive experience includes sailing under Hong Kong flags, United Kingdom flags as well as Australian flags with British crews, Hong Kong crews, Taiwanese crews, Barbados crews and with mixed crews including those from the United Arab Republic.  He has worked as a technical superintendent for a fleet of ships in the United Kingdom and has represented the Australian Maritime Safety Authority in undertaking surveys on vessels being built in South Korea.  He has undertaken numerous surveys of ships other than those carrying an Australian flag.  Mr McAuley was requested by Federal Police to conduct an examination of the Pong Su in Sydney in June 2004.  He was provided with copies of the engine log book and the deck log book at the time of the request to inspect the ship.  He prepared a report for police on 12 July 2004 and has prepared a supplementary statement.  In addition, Mr McAuley was called to give evidence before me on a “Basha Inquiry” on 25 November 2004.

1. Mr McAuley gave evidence about the practice of keeping an engine log in a ship.  He said that the purpose of keeping an engine log is so that the chief engineer, and thereby the company owning the ship, can monitor engine and ship performance against various criteria.  He said that the type of engine information required to be kept varied from company to company but the basic things that would have to be recorded for the engine logs to be of any use include exhaust temperatures, engine revolutions and fuel consumption.  He gave evidence that normally entries are made by the watch-keeping engineer at the time.  The role of the chief engineer in relation to the log includes monitoring the log daily and looking for any trends which may indicate possible problems arising.  He gave evidence that both Australia and North Korea are signatories to the International Maritime Conventions under the International Maritime Organisation and the requirement for safe management of a vessel arising from those Conventions requires knowledge as to whether engines are running correctly.  Mr McAuley’s evidence was that the chief engineer would require entries into the engine log to be recorded accurately that he would have ultimate responsibility for directing watch-keeping engineers and would have ultimate responsibility for the engine log.  In relation to his inspections of the engine of the Pong Su, Mr McAuley said that the engine appeared to have been running for a considerable period of time without being cleaned.  He explained his reasons for this opinion as being based on the presence of carbon build up around the fuel injector.  His evidence that the engine appeared to have been running for a considerable period of time was in contradiction of the entry into the engine log dated 15 April 2003 which asserted that “cylinder was changed” and contradicted a similar entry into the deck log on 16 April 2003.  He gave evidence that the build up of carbon within the number 2 cylinder head of the ship was consistent with an extensive running period in excess of 60 hours and more reasonably 720 hours.  It should be observed that the approximate running time between Boggaley Creek and the arrival of the Pong Su in Sydney was 60 hours.  Mr McAuley gave evidence of his examination of the two spare cylinder heads and tests carried out on them.  He concluded that both spare cylinder heads were serviceable.  He expressed his opinion that it would take between four and six hours to change cylinder heads and that due to the mass of the cylinder head and the issue of safety of the equipment and the crew a change of cylinder heads at sea should be avoided unless a smooth sea condition existed at the time.  Mr McAuley analysed both the deck log and the engine log for the ship and gave evidence as to the discrepancies between entries in both in the same period.  He gave evidence that when a vessel is anchored close to shore, particularly in inclement weather, good seamanship, and the safety of the ship, would require that an engine would be maintained in a state of readiness for immediate start. 

Submissions on behalf of the Master Man Sun Song

1. Mr Hayden of counsel does not submit that Mr McAuley is insufficiently qualified by reason of his qualifications and experience to express the opinions that he did.  Rather, Mr Hayden contends that Mr McAuley’s opinion that the suggestion that there had been a cylinder head change on the ship was not consistent with his observations of the carbon build up, nor with the nature of the weather conditions which applied at the time.  Mr Hayden submits that these matters are issues for the jury and not matters which fall into the area of expert evidence.  Furthermore Mr Hayden contends that Mr McAuley is not qualified to give evidence of the practices and customs in North Korea as to the keeping of deck logs and engine logs.  Mr Hayden does not take objection to the evidence that Mr McAuley has examined both logs and his interpretation of what they reveal.  However he objects to any opinion formed by Mr McAuley on the basis of what is proper practice of ships sailing in Australian waters by comparison with the practice upon a North Korean ship. 

Ruling

1. Subject to the issue of the admissibility of the engine log books with which I propose to deal separately, I am satisfied that Mr McAuley, who is a highly experienced marine engineer, has the specialised knowledge to express his opinion as to whether a cylinder head had been recently changed or not.  That is a matter of specialised expert knowledge which would not ordinarily be available to a jury based upon their own life experience.  Mr McAuley in giving evidence before me on the voir dire explained adequately the basis upon which he expressed such an opinion and that is a matter which is capable of being analysed and tested before the jury.  Furthermore the opinion of Mr McAuley as to the time it would take to change a cylinder head on an engine of the type installed in the Pong Su and of the difficulty of undertaking such a task in anything other than smooth sea conditions is a matter upon which a suitably qualified person, as I am satisfied Mr McAuley is, may be permitted to give evidence before the jury.  The basis upon which such evidence is to be given by Mr McAuley has been explained adequately by him and can be tested in cross-examination.  Insofar as Mr Hayden contends that Mr McAuley has no knowledge of the actual practice in the conduct of North Korean ships it appears to me to be clear that Mr McAuley has extensive knowledge of the practice of operation of ships from an international viewpoint.  He will produce evidence that both Australia and North Korea are signatories to the International Maritime Conventions under the International Maritime Organisation.  In all the circumstances, I conclude that Mr McAuley can give evidence about what is good practice in terms of maintaining an engine and undertaking repairs as required to such an engine and the capacity to do so in certain sea conditions.  Any attack upon him in relation to any distinction between the operation of a ship in accordance with International Maritime Conventions and what might occur upon a North Korean ship is a matter of weight only and does not go to the principle issue of the admissibility of Mr McAuley’s evidence.

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