|
|
 |
Home - My Yahoo! - Help |
 |
| | | | | | | | | | | | | | | | |
| |||
Monday July 31 8:03 PM ET
Onus on Crown to disprove duress defence in migrant-smuggling, says
judge
VICTORIA (CP) - A B.C. Supreme Court judge told a jury Monday that it's up to the Crown to prove a Korean ship's crew was not being forced to transport migrants to Canada. The jury in the trial of nine Korean sailors began its deliberations after Justice Ronald McKinnon's 45-minute charge, which touched on the defence's claim the crew was under duress from Chinese people smugglers.
"The defence offered by these accused - that they were hijacked and threatened with death - raises in law what we refer to as a defence of duress, or compulsion," McKinnon said.
This defence is available to excuse what would otherwise be criminal conduct, the judge said.
"The Crown must prove beyond a reasonable doubt that this defence of duress can not succeed," said McKinnon.
"The accused does not have to prove anything."
He told the 11 jury members - a woman was excused after having a baby - that even if they didn't accept that defence, they must acquit the men if they still had a reasonable doubt about their guilt.
"You may only find him guilty if after you consider all of the evidence, you are satisfied that the Crown has proved its case beyond a reasonable doubt," McKinnon said in an address broadcast live on local cable TV.
The nine men face five criminal and immigration charges of smuggling 131 Chinese migrants into Canada aboard a cargo ship last August.
They have been in custody since their arrest as they tried to flee Canadian waters.
The trial began in February but several weeks were taken up with various legal arguments, including an application by news organizations that led to cameras and microphones being allowed to record portions of the proceedings.
The defence didn't dispute that the small cargo vessel dropped the migrants on a remote island off the northern B.C. coast.
Defence lawyers insisted the sailors were forced to take part in the human smuggling operation - one of four that saw almost 600 Chinese brought to the B.C. coast last summer.
Capt. Chong Un Kim, the skipper and the only accused to testify, said the boat and crew were hijacked in the East China Sea by people he called pirates.
These Chinese enforcers knew details of his own family and his crew, and their lives were threatened, Kim testified.
Kim said the smugglers brought the migrants aboard and forced the crew to sail to Canada.
But Crown prosecutor Peter La Prairie questioned whether the tale of hijacking could be believed.
La Prairie reminded jurors in his closing comments that Kim failed to mention seeing any weapons during the voyage, and failed to call for help once his ship was spotted by a Canadian Forces plane off the B.C. coast.
The trial made legal history in British Columbia - the first where news cameras and microphones were allowed to record proceedings.
McKinnon allowed the lawyers' final arguments and his charge to the jury to be recorded. But he ordered the jurors and the accused could not be shown or heard.
There are no laws banning electronic recording and cameras in Canadian courtrooms, but they are normally prohibited.
Television cameras are allowed at the Supreme Court of Canada, at public inquiries and many quasi-judicial procedures across Canada.
Cameras have been allowed into courtrooms on occasion in Ontario, Newfoundland and Alberta. The issue has been argued on a case-by-case basis.
Television cameras were allowed at a B.C. Supreme Court civil trial eight years ago, but only when a jury was taken out of the courtroom to view railroad tracks where an accident had taken place.
Meantime, federal officials say 18 of the original 131 who arrived on the Korean ship have been deported from Canada.
Citizen and Immigration spokeswoman Therese Vermette said 54 remain in detention. Of the rest, some have been released on conditions, while others, including 14 minors, have disappeared and warrants have been issued.
Four of the migrants who face charges of organizing illegal entry into Canada will be in court in November. At his trial, Kim identified the men as pirates. © The Canadian Press, 2000
| | | | | | | | | | | | | | | | |