R v Choi (Pong Su) (No 8)
[2005] VSC 8
•27 January 2005
| 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 SUNG SONG DONG SONG CHOI |
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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 (Ruling No. 8) | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 8 | |
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CRIMINAL LAW – Evidence – Expert witness – Political scientist – Expression of opinion as to function of “political officer” on ship – Basis upon which opinion formed not clearly demonstrated – Evidence ruled as inadmissible.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr J. Champion, SC with Mr M.P. Cahill | The Solicitor for the Commonwealth Office of Public Prosecutions |
| For Man Sung Song | Mr P. Faris, Q.C. with Mr I. Hayden | Ellinghaus and Lindner |
| For Dong Song Choi | Mr J. O’Sullivan | Galbally & O’Bryan |
HIS HONOUR:
Mr O’Sullivan of Counsel for Dong Song Choi makes objection to the evidence of Professor Cotton proposed to be called by the prosecution.
The prosecution intend to call evidence that Choi was listed in the crew list of the Pong Su as “Political Secretary”. It is alleged that his passport contains further reference to his occupation as political secretary. Furthermore, it is alleged by the prosecution that other documents seized by investigators confirm the role of Choi as political secretary of the Pong Su.
The prosecution contends that given the role of the political secretary on the Pong Su, the entry of the ship into Australian waters and its travel to the Victorian coastline were circumstances that must have occurred with the full knowledge of Choi. It is submitted that given his position of authority as political secretary Choi must have been aware of events of the voyage which included the boarding of the accused Wong and another person upon the ship, the refuelling of the ship at Singapore, the changing of the flag of the ship to Tuvuluan registration, the lack of legitimate cargo on the Pong Su when travelling in Australian waters, the movement around and the anchoring of the ship off the coast of Boggaley Creek, the launching of the inflatable dinghy from the Pong Su and the departure of the Pong Su from Boggaley Creek in circumstances where Wong and the deceased had not returned to the ship. It is submitted that taking into account these and other matters a jury would be entitled to draw a proper inference that Choi aided and abetted the importation of heroin into Australia by Wong.
Accordingly, it is apparent that the jury must have evidence before them of precisely what the position of political secretary entails and what powers and authority such a position commands, before it can give consideration to the evidence upon which the prosecution relies to draw inferences of guilt against him. The prosecution proposes to prove such matters by calling expert evidence in respect thereof.
Professor James Cotton is the Professor of Political Science at the University of New South Wales at the Australian Defence Force Academy. He holds the degrees of B.A. in Politics, M.Sc. and PhD in Government from the London School of Economics, and holds a Master of Arts in Oriental Studies. He has held academic appointments in political science in Australia, the UK, Singapore, South Korea, Sarawak and Hong Kong. He has published widely, and of particular relevance has edited or published a number of books and chapters of books, and articles relating to both North and South Korea. He gave evidence at the committal hearing that his area of expertise is “that of a political scientist” with a “particular interest in North Korea”.[1] He was a career foundation lecturer in Seoul in 1989 and has made six visits to North Korea, in 1986, 1990, 1991, 1993, 1996 and 2001. He has travelled extensively in North Korea and received briefings by party and state officials. He has published approximately 30 academic papers on North Korea as well as journalistic pieces on the subject.
[1]At p.631 of committal transcript.
In his statement he describes the political environment of North Korea. Professor Cotton’s description of the nature of the political environment of North Korea is not without polemic. He states, for instance, “It is nothing less than extraordinary to reflect on the fact that otherwise serious scholars, some prominent Australians among them, for many years considered this regime to be an authentic revolutionary and socialist creation, rather than the third rate dictatorial travesty it has been from its inception”. Professor Cotton devotes a significant part of his statement to the living conditions in North Korea and to the monetary system. In relation to the issue of the authority and power of a political secretary, Professor James Cotton stated as follows:
“Given that the ship was foreign flagged, the crew and officers of the vessel would most likely be employees of a state trading company. The function of the political officer would be to ensure the complete political loyalty of all the North Korean (sic) aboard to the country’s leader and his ideology. He would most likely be the highest ranking individual aboard, and would come from one of the North Korean intelligence services.
North Korea is a system that functions on a blend of loyalty and fear, the further the distance from the political centre, the more important fear would be as a determinant of action. Disloyalty or insubordination on the part of the crew members of such a vessel might result in their being sent to a prison camp on their return to the country. It is estimated that there are 200,000 inmates in North Korean prison camps. Family members of the crew might be expected to have some privileges in North Korea, but these would be lost in the event of the crew member being punished for a political offence, and they might themselves even be sent to a prison camp.”
The statement contains no other discussion of the structure of North Korean society, nor any detailed discussion in relation to the position of a political officer either in the general political or economic circumstances of North Korea nor upon a ship.
Furthermore, in the course of the committal proceeding Professor Cotton was cross‑examined about these matters. He conceded that his knowledge of the North Korean shipping industry was “limited”. He conceded that he has no expertise in relation to the North Korean shipping industry, that he had never been present upon a North Korean ship, nor had he ever spoken to a senior crew member or to a “political officer” upon a ship. He said that he was not aware of anything in the literature relating to the role of a political officer upon a ship. In answer to the question, “You say the political officer would most likely be the highest ranking individual aboard?” Professor Cotton said, “That would be my supposition”. In answer to the question, “And you say this political officer is a member of one of the North Korean intelligence services?” Professor Cotton said, “I would expect that to be the case, yes.”
Mr O’Sullivan contends on behalf of Choi that these answers “eloquently demonstrate” the non-expert basis of Professor Cotton’s suppositions and expectations about the position of political secretary on the Pong Su. It is submitted by Mr O’Sullivan that the evidence of Professor Cotton should not be admitted. Mr O’Sullivan relies upon the joint judgment of Gummow and Callinan JJ in Velevski v The Queen.[2]
“The trial judge has a continuing responsibility, particularly in a criminal trial where a witness has been allowed to express an opinion on a critical issue, to ensure that such opinion is not left to the jury’s consideration where it has become clear that the person who has expressed that he has no qualification to do so or has provided no factual or scientific foundation for the opinion expressed [see Bugg v Day (1949) 79 CLR 442 at 456 – 457 per Latham CJ; Inch (1989) 91 Cr App R 51 at 54; R v Marquard (1993) 85 CCC (3d) 193 at 225]. Although it is, of course, true that it is for the judge to decide whether an expert’s opinion is admissible and for the jury to decide whether the opinion is credible and what weight it should be given, it is also true that an opinion is only as good as the factual or scientific basis upon which it is expressed, and if no such basis is given or if given, can be seen to be speculative or irrelevant to the opinion expressed, then the opinion will be worthless [R v Turner [1975] QB 834 at 840 per Laughton LJ].”
[2][2002] HCA 4 (14 February 2002) at paragraph 165.
Mr Cahill of Counsel on behalf of the prosecution contends that the evidence of Professor Cotton is admissible. First, Mr Cahill submits that political science is a recognised subject upon which expert testimony is admissible. He relies upon the decision of R v El-Yanni.[3] In that case the appellant was charged with importing heroin. There was no dispute that he had done so. The sole issue was whether he had done so voluntarily. The appellant, who came from Lebanon, alleged that an armed member of the Syrian Secret Police had threatened to kill him and his family if he did not take two suitcases to Australia in which “medicine” to be used as “anaesthetic” was hidden. The trial judge rejected evidence, without any voir dire examination, of a claimed expert who would describe the involvement of and the control exercised by the Syrian Army in the political and cultural affairs of the relevant area of the Lebanon. Finlay J, with whom Hunt CJ at CL and James J agreed, concluded that the evidence of a senior lecturer in sociology who had lived in the Middle East and who had written and read widely in that subject was expert in relation to the matter of the control and influence of the Syrian Army in Northern Lebanon at the relevant time and that the expert evidence had been wrongfully rejected.
[3]NSWCA (unreported) 6 July 1993.
Furthermore, Mr Cahill submits that the evidence of Professor Cotton is clearly relevant to a fact in issue, that fact being the power and authority of the political secretary Choi on the ship Pong Su. Mr Cahill contends that the argument that Professor Cotton does not possess knowledge of maritime matters is not to the point, which is that the power and authority of Choi derives not from the fact that he was on the ship but from his position within the political structure of North Korea as a political secretary. It is submitted that Professor Cotton does not require knowledge of maritime matters to offer his opinion on the position and role of the political secretary. Furthermore, it is submitted that the attack by Mr O’Sullivan upon Professor Cotton’s evidence given at the committal whereby he used the word “supposition” and spoke of his expectation that the political officer would be a member of the North Korean intelligence services, reflected merely a pedantic scrutiny of his answers and does not demonstrate a lack of sufficient knowledge on the part of Professor Cotton.
Conclusion
The prime duty of an expert witness is to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions.[4] In R v Jenkins, ex parte Morrison[5], Fullagar J said that an expert witness must “explain the basis of theory or experience, upon which conclusions stated are supposed to rest for courts cannot be expected to act upon the opinions the basis of which is unexplained”. Beaumont J in Trade Practices Commission v Arnotts Limited (No. 5)[6] approved the remarks of Wigmore on Evidence, Vol. II (Chadbourn revision, 1979) para 672:
“The key to the situation, in short, is that there may be two distinct subjects of testimony – premises, and inferences or conclusions; that the latter involves necessarily a consideration of the former; and that the tribunal must be furnished with the means of rejecting the latter if upon consultation they determine to reject the former, i.e. of distinguishing conclusions properly founded from conclusions improperly founded.”
[4]See Hayden JA in Makita (Australia) Pty Ltd v Sprowles (2000-01) 52 NSWLR 705 at 729.
[5][1949] VLR 227 at 303.
[6](1990) 21 FCR 324 at 327.
In Trade Practices Commission v Arnotts (No. 5), Beaumont J rejected the evidence of an expert who had attended and/or read the transcript of the hearing and had read the exhibits and then commented on particular allegations in the statement of claim. The appeal to the Full Federal Court against this decision to reject the expert’s evidence failed. Lockhart, Wilcox and Gummow JJ referred[7] to Sir Richard Eggleston Evidence Proof and Probability[8]:
“Assuming that the matter is one on which only an expert can express an opinion, what sort of opinion he may give, and on what material can it be based? It is often said that an expert cannot give an opinion as to the ultimate fact that the court has to decide. This is inaccurate, as experts, especially valuers, often give evidence as to the ultimate fact, and in many cases the question whether the fact exists can be answered only by experts … What the rule really means is that an expert must not express an opinion if to do so would involve unstated assumptions as to either disputed facts or propositions of law. Thus an expert who says ‘In my opinion this action was caused by … ‘ in a case where the facts are disputed is assuming the right to make a decision as to which of the parties is telling the truth, and is therefore usurping the function of the tribunal. Similarly, if a valuer is called in a case where the ‘unimproved value’ of a property is in issue, and there is uncertainty as to the meaning of the terms as a matter of law, the expert should not say ‘In my opinion the unimproved value is … ‘ without stating on what interpretation of the term his opinion is based. In general, where there is uncertainty of either description, the opinion should be based on hypothetical facts, clearly stated.”
[7](1990) 24 FCR 313 at 350 – 351.
[8](2nd ed, 1983) pp.147 - 148..
Hayden J, in Makita, comprehensively reviewed the law relating to the admissibility of expert evidence and having examined the above and other authorities in his decision said[9]:
“In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of ‘specialised knowledge’; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be ‘wholly or substantially based on the witness’s expert knowledge’; so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached; that is, the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the expert is qualified by reason of ‘study training or experience’, and on which the opinion is ‘wholly or substantially based’ applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and so far as it is admissible, of diminished weight.”
[9]At 743.
As Hayden JA said, “An attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v R (1999) 197 CLR 414, on ‘a combination of speculation, inference, personal and second hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise’.”[10]
[10]At 744.
I am satisfied on the material before me that the field of political science is a field of specialised knowledge. I am satisfied that Professor Cotton has demonstrated that by reason of his training, study and experience he is an expert in the political system which pertains in North Korea. I am satisfied that much of what he has to say in his statement, although perhaps somewhat floridly expressed, is properly the subject of expert knowledge and is not within the realm of the ordinary member of the community. I do not accept the submission of Mr O’Sullivan that Professor Cotton necessarily has to have detailed knowledge of the North Korean shipping industry in order to express an opinion as to the position and role of a political secretary upon the Pong Su if his statement properly established the basis of such opinion. The difficulty that I have with the single line conclusion expressed by Professor Cotton that “the function of the political officer would be to ensure the complete political loyalty of all the North Korean (sic) aboard to the country’s leader and to his ideology” and that he would “most likely be the highest ranking individual aboard” is that the statement does not establish the basis upon which that opinion is expressed. The statement does not demonstrate or examine the intellectual or factual basis upon which the conclusion is reached. The statement is merely an assertion of Professor Cotton following a discussion by him of the political environment, living conditions, pay scales and monetary system of North Korea.
The evidence upon which the prosecution seeks to rely in relation to the authority of the accused Choi is a most important aspect of the case. There is little evidence against Choi other than his title of political secretary. The prosecution seek to ask the jury to draw inferences of guilt in relation to the aiding and abetting of the importation of heroin into Australia from the evidence it proposes to lead to establish the nature, authority and power of the position of political officer. In such circumstances it is necessary that the nature of the expert evidence be exact, and that the basis upon which the opinion is propounded be transparent so as enable there to be confidence that the opinion is based wholly or substantially on the expert’s specialised knowledge. In the circumstances of the present statement by Professor Cotton there is, in my view, a real risk that the opinion expressed by him is based upon a combination of “speculation, inference, personal and second hand views” as to the likelihood, or indeed merely the possibility of the circumstances relating to Mr Choi by reason of his title of political officer. In the circumstances, the statement upon which the prosecution seeks to rely is not admissible.
The admissibility of part of the evidence of Mr Aubrey Wise
Mr Wise is a marine surveyor who I am satisfied is well qualified and experienced to give evidence as an expert in relation to matters of marine and shipping which require the application of expert evidence and which are within his field of expertise.
In his statement dated 3 July 2003, however, Mr Wise stated as follows in relation to the role of political secretary on the Pong Su.
“This position (political secretary) is that of a communist country. He is a member of the polit bureau (sic) and is responsible to see that the North Korean government’s policy is upheld.”
At the committal hearing Mr Wise was cross-examined about this statement. He said that he had never been to South Korea and when asked what he knew about the duties of a crew on a North Korean ship he said he did not “specifically” know. Mr Wise has not demonstrated by reason of specified training, study or experience that he has any expertise upon which he might express an opinion as to the functions of a political secretary either in North Korean society or in a North Korean Ship. This part of his evidence is inadmissible.
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