R v Choi (Pong Su) (No 9)
[2005] VSC 30
•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. 9) | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 30 | Revised 20 March 2006 |
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CRIMINAL LAW – Admissibility of documentary evidence – Ship’s engine log – Entries made by a number of persons – Whether contents admissible against chief engineer – Evidence Act 1958 s 55.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | 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 | Leanne Warren & Associates |
HIS HONOUR:
On the afternoon of 15 April 2003, local residents of Wye River on the Victorian south coast observed a ship sailing close to the shore. It was the Pong Su. Shortly thereafter, the Pong Su anchored near to Boggaley Creek where it remained until approximately 10.30 am on the morning of 20 April 2003. On the morning of 29 November 2003, the ship was boarded at sea by members of the Australian Navy at some distance from the New South Wales coast. The ship was then taken to Sydney. A search of the ship was conducted and the engine log book was located together with a number of other documents, including the deck log book. Upon examination, entries in the engine log book were found to not always accord with entries made for the same dates and times in the deck log book. The accused man, Ju Chon Ri (“the chief engineer”) was found to be in possession of keys on an engine ring marked “Engine Store Keys”. Subsequent examination of documents found upon the ship identify him as the chief engineer aboard the Pong Su.
On 23 June 2004, Mr Patrick McAuley, who is a marine engineer with extensive experience in the shipping industry in the UK, Asia and Australia, inspected the Pong Su in Sydney and prepared a report.
Subsequently, Mr McAuley gave evidence before me on a Basha enquiry. He gave evidence about the practice of keeping an engine log book (“engine log”) on 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 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 on duty at the time. The role of the chief engineer in relation to the engine log includes monitoring the log daily and looking for any trends that may indicate possible problems. Mr McAuley 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 and that the chief engineer would have ultimate responsibility for directing watch keeping engineers and would have ultimate responsibility for the engine log. I have ruled already that the evidence of Mr McAuley as to whether or not his inspection revealed a recent change of a cylinder head is admissible as expert evidence in these proceedings.[1]
[1][2004] VSC 5.
However, Mr Russell of counsel for the chief engineer submits that the engine log upon which Mr McAuley partly bases his opinion is inadmissible because it contains documentary hearsay.
There is no direct evidence as to the identity of the author of the individual entries appearing in the engine log book. The engine log book contains two broad categories of entries. The first category of entry records the details of engine temperatures and pressures taken at various times of each day (“log data”). The second category of entries consists of what might be called “particulars” or remarks relevant to the operation of the engine at various times. These were recorded from time to time and a perusal of the engine log suggests in general that at least one such entry was made each day.
Each page of the engine log book relates to a 24 hour period. It provides for hourly recording of “revolutions” of the engine, engine pressures, engine temperatures, and fuel and oil consumption that is, the log data. Each daily page of the log book has provision for a printed section headed by printed words which have been interpreted as “Particulars” under which printed words which have been interpreted as “Chief Engineer” and “Signature” appear.
An examination of the engine log book reveals that on various dates a number of entries appear under the heading “Particulars”. For example, on 13 April 2003 notes which have been interpreted as “Date 12th 2330 o’clock A oil” and “change the 1st Filter 05 o’clock” and “Change the 2nd (RAIS) filter 0350 o’clock” appear. Likewise, but of particular relevance, the recorded particulars for 15 April 2003 contain a number of remarks including “1230 stop”. Other remarks noted on that day’s engine log as translated state “Engine abnormal – 1400 hrs stop – inspected 2F. No 2 exhaust valve inspection” and “cylinder replaced” and “exhaust valve replaced”. The recorded particulars for 16 April 2003 contain the remark “9.50 am start engine”. The recorded particulars for 17 April 2003 contain the remark interpreted as “replace exhaust valve 2 – F side”. These records, if accurate, would indicate that during the time the ship was anchored at Boggaley Creek, repairs were undertaken to the engine.
The ship’s crew list records four engineers on board on the journey to Australia, namely, the accused chief engineer, the second engineer Ri Su Gun, and two engine officers Kim Sang Un and Mun In Son. The engine log shows that each of them was on watch at different times during the Pong Su voyage from Nampo in North Korea to Boggaley Creek and then on to Sydney. The engine log shows that all of the second engineer and the two engine officers were on watch regularly and in rotation with each other. According to the engine log, the chief engineer was on watch on each of the 6th, 7th and 8th of April 2003. It appears, therefore, that each of the four engineers made entries in the engine log at various times during his watch. The second engineer and the two engine officers have now returned to North Korea and their current whereabouts are unknown.
The prosecution contends that the entries in the engine logs are relevant to facts in issue. First, the prosecution case is that the purpose for which the Pong Su stopped near Boggaley Creek on 15 and 16 April 2003 was to discharge a cargo of heroin and that that is a fact in issue in the trial Secondly, the prosecution contends that the ship’s officers knew that the cargo to be discharged at Boggaley Creek contained narcotics and it contends that notes made in the engine log to the effect that a cylinder was replaced on 15 April 2003 are false and designed to cover up the true reason for the ship’s stopping at Boggaley Creek. Whether or not the ship stopped near Boggaley Creek by reason of the need for engine repairs, or whether instead it did so for reasons connected with the importation of heroin into Australia is a fact in issue.
The prosecution seeks to rely upon the engine log in two separate but distinctly different ways. First, it seeks to rely upon the engine log data, being the details of temperatures and pressures recorded in the course of daily operations by one or more of the engineers on watch, as to the truth of the data. This data is relevant to the opinion of Mr McAuley as to whether there was any evidence of a need to conduct urgent repairs to the engine. In addition, however, the prosecution seeks to rely upon the remarks, or the particulars, entered in the engine log, not as to their truth, but upon the basis that such entries and in particular those made in the pages which purport to record what occurred in relation to the engine on 15 and 16 April 2003, is evidence of an attempt to “cover up” the true purpose for stopping the ship at Boggaley Creek.
It is submitted that the engine log is admissible on four distinct bases. First, that it forms part of the Pong Su Shipping Company business records; secondly, as part of the res gestae; thirdly, on the basis that the chief engineer had access to and control of the engine log, and finally, as a relevant part of the prosecution circumstantial case to rebut the suggestion that the Pong Su stopped at Boggaley Creek to make engine repairs.
It is apparent that the issue of whether or not the Pong Su was stationary at Boggaley Creek by reason of engine trouble is a fact in issue. The response of the chief engineer to the summary of the prosecution opening which has been filed pursuant to s.7 of the Crimes (Criminal Trials) Act 1999, whilst being seriously deficient as an adequate response, contains the somewhat delphic statement “The Pong Su engine was old, as is often the case on ships, and required ongoing repairs on a regular basis.” However, the response of the Master puts the matter clearly in issue by stating that the Pong Su became stationery at Boggaley Creek when “the engineers effected engine repairs”.
Turning to the first way in which the prosecution submits that the engine log is admissible as part of the business records of the Pong Su Shipping company, reliance is placed upon s.55(2) of the Evidence Act 1958 which provides:
“(2)In any criminal proceeding where direct oral evidence of a fact would be admissible, any statement contained in a document and tending to establish that fact shall be admissible as evidence of that fact if the document is, or forms part of, a record relating to any business and made in the course of that business from information supplied (whether directly or indirectly) by persons who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in the information they supplied, and the person who supplied the information recorded in the statement in question is called as a witness in the proceeding.”
I am satisfied that the above section applies to records of businesses which are conducted not only in Australia but anywhere in the world.[2]
[2]See R v Ernst [1984] VR 593 and R v Jenkins [1970] Tas SR 13
In my view it is clear enough that the engine log book is a record relating to the Pong Su Shipping Company business of running a cargo ship, and was made in the course of that business by persons who had or may reasonably be supposed to have had personal knowledge of the matters recorded. Counsel for the chief engineer does not contend otherwise. However, s.55(2) provides further that a business record is admissible if the person who supplied the information recorded is called as a witness to the proceeding. It is apparent that a considerable part of the data entered in the engine log was entered by the second engineer and the two engine officers who have now been returned to North Korea. Thus they will not be called as witnesses in the proceeding.
Section 55(5) of the Evidence Act contains a proviso to sub-s.(2) in the following terms:
“(5)Notwithstanding anything to the contrary in the foregoing provisions of this section, the condition that the maker of the statement or the person who supplied the information, as the case may be, be called as a witness need not be satisfied where -
(a)he is dead, or unfit by reason of his bodily or mental condition to attend or testify as a witness;
(b)he is out of Victoria and it is not reasonably practicable to secure his attendance;
(c)he cannot with reasonable diligence be found or identified;
(d)no party to the proceeding requires the attendance of the witness; or
(e)the parties to the proceedings consent to his not being required to attend.”
The prosecution contends that the proviso contained in s.55(5)(b) and (c) should be applied to the engine log book which contains entries made by the chief engineer and the three other engineers. Each of the other three engineers is out of Victoria and cannot be found.
Mr Russell submits on behalf of the chief engineer that there is no basis upon which the entries made in the remarks column of the engine log, as compared with the entries concerning the data relating to the condition of the engine, can be described properly as business records. It is submitted that the prosecution has not identified the person who made the entries, nor is there evidence as to whether the chief engineer saw or verified the entries, nor is there evidence as to when the entries in the remarks column were made. In particular, Mr Russell observes that the prosecution intends to rely upon the alleged falsity of entries made in the remarks column, yet does not intend to call the person who made those entries, and who he submits is the person who could prove whether the entries are false. Mr Russell submits that the purpose of s.55 of the Evidence Act is to facilitate the tendering of non‑controversial material without the need to call the author of a document and that the intention of the section has never been to permit the prosecution to lead evidence that is “crucial evidence”, in a case against an accused. Furthermore, Mr Russell relies upon s.55(9) of the Evidence Act which provides:
“(9)The court may in its discretion reject any statement or defer the admission of and subsequently reject any statement notwithstanding that the requirements of this section are satisfied with respect thereto, if for any reason it appears to it to be inexpedient in the interests of justice that the statement should be then admitted or, as the case requires, should be admitted at all.”
Mr Russell contends that in the proper exercise of my discretion I should exclude the engine logs in their entirety. In particular, he submits that the prosecution should not be permitted to rely upon the exception created by s.55(5) in circumstances whereby the makers of entries which form the engine logs have been deported from Australia at the instance of the Commonwealth Government.
However, the prosecution contends further that the entries in the engine logs are in any event admissible as part of the res gestae, because they are representations made by the ship’s engineers concerning the operation of the ship’s engine which representations are contemporaneous with the ship’s voyage to Australia. Thus they are so connected with the ship’s voyage as to assist in explaining the purpose of the voyage, and the ship’s anchoring and manoeuvring close to the shore at Boggaley Creek. The prosecution submits that the entries are statements contemporaneous with and accompanying the criminal transaction of bringing the heroin on the ship to Australia. In this regard the prosecution relies upon R v Benz and Anor[3] where on a trial of a mother and daughter for the murder of the mother’s de facto husband there was evidence that the deceased’s body was found in a river downstream from a bridge and that he had suffered serious injuries before drowning. Evidence was given at trial by a driver who passed over the bridge on the night when the murder was alleged to have occurred. His evidence was that he had spoken to two women who were facing over the edge of the bridge and asked them if everything was all right. One of the two women turned to him and said that her mother was just feeling sick. In the course of his judgment Dawson J said[4]:
“The Crown sought during argument to justify the admission into evidence of the younger woman’s statement upon the basis that it was part of her res gesta. It was of course part of the res gesta constituted by the presence of the two women on the … bridge. Their presence at that time and place was one of a series of actions constituting the entire criminal transaction which the Crown sought to prove. Statements accompanying a relevant act are clearly admissible as part of the res gesta – see Phipson on Evidence 13th ed. (1982) paras 7–15 and the cases there cited – and the statement in question accompanied the act of being present on the bridge.”
[3](1989) 168 CLR 110.
[4]At pp.134, 135.
Thus the contention of the prosecution is that the entries are statements contemporaneous with, and accompanying the criminal transaction of bringing the heroin on the ship to Australia. However, Mr Russell submits that in the circumstances of this case the principle of res gestae has no application sufficient to permit the admission of the evidence in circumstances where s.55 of the Evidence Act has not permitted its inclusion. The normal basis for the admission of evidence by way of res gestae is that the spontaneous and contemporaneous nature of the statements sought to be admitted tends to exclude the possibility of concoction. Mr Russell relies upon Rattan v R[5] in this regard. He submits that there is no evidence as to when the entries were made and in such circumstances there is no basis to admit the engine logs into evidence as part of the res gestae.
[5][1972] AC 378.
In the further alternative, the prosecution contends that a person who has access to and control over the contents of the engine log may have proved against him the statements contained in it as evidence of the truth of the documents. Cross on Evidence[6] states:
“If it is clear that a party had access to and control over the contents of a document they may be proved against him as evidence of their truth.”
[6]7th ed. par 33510.
The prosecution contends that there is evidence upon which a jury could conclude that the ship’s chief engineer, despite his apparent practice of not signing the daily engine log, had access to and control over the engine log. I accept that there is evidence upon which the jury could conclude that the chief engineer did have access to and control over the engine log. Mr McAuley gave evidence on the voir dire that the purpose of keeping an engine log is to enable the chief engineer and the shipping company to monitor the engine’s and the ship’s performance, that a competent chief engineer would monitor the log daily to enable proper management of the engines, and that the chief engineer has the ultimate responsibility for directing the watch keepers, and for the engine log. Furthermore, the chief engineer was found to have keys on a key ring marked “engine store keys” and there are entries by him in the log on various dates. However, it is apparent that such access to and control of the engine log permits only the admission of the contents of the engine log to be proved against him, as evidence of the truth of the document. The prosecution goes beyond seeking to prove the truth of the document and seeks to use the engine log and in particular the remarks appearing in it for the dates of 15 and 16 April 2003 as a piece of circumstantial evidence to enable the jury to decide whether false entries were made to “cover up” the purpose of the stopping of the Pong Su near Boggaley Creek.
Finally, the prosecution submits that the engine log is part of the “accumulation of detail” referred to in R v Kotzmann[7]; R v Kotzmann (No. 2);[8] and Rich v R[9] and is admissible as a piece of circumstantial evidence to enable the jury to decide whether or not engine repairs were carried out whilst the Pong Su was stationary at Boggaley Creek. In this regard it is contended that the statements contained in the log are not hearsay. The prosecution submits that whether or not any statements contained in the engine log are hearsay depends upon how they are sought to be used. In Kamleh v The Queen[10] Gleeson CJ and McHugh J said[11]:
“Whether evidence of a statement made out of court by a person who is not called as a witness at a trial is hearsay depends upon the use that is sought to be made of that evidence. Subramaniam v Public Prosecutor [1956] 1 WLR 965 at 970; Ratten v The Queen [1972] AC 378 at 387; Walton v The Queen (1989) 166 CLR 283 at 301. If what is relevant is the fact that the statement was made, rather than the truth of what was said, so that the statement is not relied upon to prove the facts narrated in the statement, then what is involved is not hearsay. As Ferguson J put it in a note in the first volume of the Australian Law Journal (1927) 1 Australian Law Journal 195 at 196:
‘The hearsay rule does not forbid the proof of what somebody said out of Court. What it does forbid is the proof of a fact by telling what somebody said about that fact out of Court, a very different matter. Whether the evidence in any particular instance is admissible or not depends upon the question what fact it tends to prove.’ ”
Here the prosecution seeks to rely upon the remarks entered in the engine log of 15 and 16 April not as proof of the fact that the engine repairs were made as asserted by the remarks, but as proof that the assertion was made and which goes directly to a fact in issue in the trial, that fact being the reason why the Pong Su became stationary at Boggaley Creek.
[7](1999) 2 VR 123 at 129.
[8](2002) 128 A Crim R 479.
[9][2002] VSCA 17 per Brooking JA at par 61.
[10][2005] HCA 2 (3 February 2005).
[11]At para 12.
In my view the engine logs are admissible as part of the circumstantial case against each of the accused. Clearly the question of whether the Pong Su was brought to a stop at Boggaley Creek for the purpose of engine repairs, or whether it was then for a reason connected with the importation of heroin into Australia is a fact in issue. The engine log is prima facie admissible under s 55(2) and (5) of the Evidence Act. The engine log book is a record relating to the business of operating a cargo ship and the entries contained therein are made by persons who, it may reasonably be presumed, had knowledge of the matters the subject of the entries. I am satisfied that three of the persons who made entries cannot be now found. I do not accept the argument of Mr Russell that the prosecution should not be permitted to rely upon the incapacity to find those three persons in circumstances whereby they have been returned to North Korea by the Australian Government. It could hardly be suggested that they should have been detained following the conclusion of legal proceedings against them and not permitted to return to North Korea so that they might be called to give evidence about their entries in the engine log book. The question then arises as to whether in the interests of justice my discretion should be exercised to exclude any part of the entries in the engine log. Mr Russell submits that the loss of opportunity to cross-examine the three engineers is significant and predicates the exercise of discretion against the admission of the engine log. In my view the submission of the prosecution that nothing more has been lost than the opportunity to test the memory of the makers of the entries is correct. In any event I am satisfied that insofar as the remarks relating to the ship’s engine repairs are concerned the prosecution is entitled to rely upon this admission into evidence on the basis that they are evidence of a fact in issue on the basis referred to in Kamlek v R. Furthermore, I accept the submission of the prosecution in relation to the chief engineer that there is evidence whereby the jury would be entitled to conclude that he had access to and control over the engine log and that its contents may be proved against him as evidence of the truth of the contents of the log.
In the circumstances, I do not consider it necessary to rule upon the submission of the prosecution that the entires made in the engine log are admissible as part of the res gestae.
The question now arises as to whether any entries in the engine log can be used beyond their relevance as rebuttal of the suggestion that the reason the Pong Su stopped at Boggaley Creek was to effect engine repairs and as evidence in support of the fact that it stopped there for the purposes of transferring heroin to the shore. The prosecution submits that those entries which refer to the change of cylinder head can be demonstrated to be false, and that what flows from that is that such falsity was designed to cover up the purpose of the stopping at Boggaley Creek and is therefore evidence of consciousness of guilt. The prosecution does not state in its submissions precisely who it asserts had such consciousness of guilt. In my view it is clear, in circumstances whereby the maker of the entry relating to the change of the cylinder head is unknown, and when the time of the making of the statement is unknown, that such evidence cannot be used as consciousness of guilt against any person other than the maker of the statement and in particular cannot be used as such against the chief engineer. Although, I am satisfied that the engine log is admissible in evidence for the reasons set out above, it is a further step again to say that certain remarks contained in the log are directly admissible against a person who cannot be proved to be the maker of the remark in question as consciousness of his guilt.
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