Director of Public Prosecutions v Ho and Ors (Ruling No.1)

[2008] VSC 610

IN THE SUPREME COURT OF VICTORIA Not Restricted

CRIMINAL DIVISION

No. 1485 of 2006

DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH)

v

KAM TIN HO & ORS

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JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 December 2008
DATE OF RULING:	23 December 2008
CASE MAY BE CITED AS:	DPP v Ho & Ors (Ruling No.1)
MEDIUM NEUTRAL CITATION:	[2008] VSC 610	Revised 20 October 2009

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Criminal law and procedure – Trial - Slavery – Sex workers – Possessing a slave – Using a slave – Commonwealth Criminal Code s.270.3(1)(a) and (c) –Financial Transactions Reports Act 1988 (Cth) s.31(1) – Migration Act 1958 (Cth) s.234 – Joint enterprise – Different roles – Separate trial application – Ruling thereon.

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr J Champion	Director of Public Prosecutions
For the Accused Kam Tin Ho	Mr S Andrianakis	Theo Magazis & Associates
For the Accused Ho Kam Ho	Mr A Brand	Slades & Parsons
For the Accused Hoo	Mr J Bisas	Michael J Gleeson & Associates Pty Ltd
For the Accused Leech	Mr B Wilkinson	Brendan Wilkinson
For the Accused Rahardjo	Ms S Beech	Robert Stary & Associates
For the Accused Tran	Mr F Guastalegname	Caleandro Guastalegname & Co

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Ruling No 1

HIS HONOUR:

1. The six accused are the subject of an indictment filed in this court on 1 December 2008 of 19 counts.          The indictment was a consequence of committal for trial to this Court by the Melbourne Magistrates' Court in the following sequence, referring to the six accused. 

1. The first accused, Mr Kam Tin Ho, was committed for trial in this Court on 26 April 2006, as was his brother, the second accused, Mr Ho Kam Ho; the third accused, Mr Chee Fui Hoo, was committed to this Court on 29 May 2006; the fourth accused, Ms Sarissa Leech, was committed on 21 May 2007; the fifth accused, Mr Slamet Rahardjo, was committed on 17 December 2007; and the sixth and final accused, Mr Ba Tran, was committed on 22 May 2007.

1. Each of the accused is charged with a series of counts relating to one holistic enterprise, as the prosecution puts it.  The first accused, Mr Kam Tin Ho, is the subject of seven counts of intentionally possessing a slave, contrary to s.270.3(1)(a) Commonwealth Criminal Code; five counts of intentionally using a slave, contrary to s.270.3(1)(a) of the Code; two counts of entering into a commercial transaction involving a salve, contrary to s.270.3(1)(c) of the Code; and four counts of structuring cash transactions, contrary to s.31(1) Financial Transaction Reports Act 1988. It is the prosecution's contention that the first accused, Mr Kam Tin Ho, was the principal of the enterprise.

1. The second accused, Mr Ho Kam Ho, is indicted on four counts of intentionally possessing a slave, contrary to s.270.3(1)(a) of the Code; four counts of intentionally using a slave, contrary to s.270.3(1)(a) of the Code; two counts of entering into a commercial transaction involving a slave, contrary to s.270.3(1)(c) of the Code; and two counts of structuring cash transactions, contrary to s.31(1) Financial Transaction Reports Act 1988 of the Commonwealth.

1. The third accused, Mr Chee Fui Hoo, is indicted on three counts of intentionally possessing a slave, contrary to s.270.3(1)(a) of the Code, and one count of intentionally using a slave, contrary to s.270.3(1(a) of the Code.

1. The fourth accused, Ms Sarissa Leech, is indicted on one count of intentionally possessing a slave, contrary to s.270.3(1)(a) of the Code; one count of intentionally using a slave, contrary to s.270.3(1)(a) of the Code; and one count of presenting a false document, contrary to s.234 Migration Act 1958 of the Commonwealth.

1. The fifth accused, Mr Slamet Rahardjo, is indicted on two counts of entering into a commercial transaction involving a slave, contrary to s.270.3(1)(c) of the Code.

1. The sixth accused, Mr Ba Phuc Tran, is indicted on one count being of presenting a false document, contrary to s 234 Migration Act 1958 of the Commonwealth.

1. The prosecution alleges that there are seven subjects of the counts, all being slaves within the meaning of the legislation and the common law.  They are, on Counts 1 and 2, Ms N; on Counts 3 and 4, Ms Y; on Counts 6 and 7, Ms T; on Counts 7, 8 and 9, Ms K; on Counts 10 and 11, Ms R; on Counts 13 and 14 Ms K; and on Counts 16 and 17, Ms T.

1. I consider it is inappropriate to use the word "complainants" in relation to each of those persons because that term involves an erroneous focusing upon reporting rather than upon the actions alleged in relation to them.  The word "victim" involves an assumption in some cases of what needs to be proved.  Accordingly I propose to use the word "subject" as an appropriate neutral term in relation to each of them.

1. A helpful summary of the prosecution opening has been filed in this Court on 18 November 2008, of 74 pages and 269 paragraphs.  There are 22 volumes of depositional material.

1. In essence the prosecution case is that this is a joint and holistic enterprise to bring the subjects from Thailand to Australia and to enslave them in Victoria in sexual servitude. 

1. The prosecution does not allege a conspiracy strictly so called, but alleges a joint and holistic enterprise.  The prosecution acknowledges that the various accused, from the principal Kam Tin Ho down, took different parts in the enterprise: some more significant than others, some broader than others, some much more discrete and limited; but the prosecution says that all six were part of one operation, one scheme, one enterprise.  The first accused, Mr Kam Tin Ho, is said to have the major part; the sixth accused, Mr Ba Tran, the least part; the fourth accused, Ms Sarissa Leech, a limited and discrete part, but not an insubstantial part of the enterprise.

1. It is a fundamental principle of law that a joint enterprise should be heard at the one time, by the one jury, if founded upon the same facts or upon facts of a similar character or a series of offences of the same or similar character. That is provided for by s.371 Crimes Act 1958 and Rule 2 Presentment Rules and by the common law upon the matter.[1]  Thus at the outset it is apparent that the presentment on its face is proper and competent for a joint and holistic enterprise.

   [1]R v Demirok (1976) VR 244, R v Gibb and McKenzie (1983) 2 VR 155, R v Alexander and McKenzie (2002) 6 VR 53 and the authorities referred to therein.

1. However, most helpful submissions have been made, seeking severance of the presentment and separate trials, by Mr Wilkinson on behalf of Ms Leech, the fourth accused, and by Mr Guastalegname on behalf of the sixth accused, Mr Tran.

1. Mr Wilkinson has sought a separate trial for Ms Leech together with Mr Tran, apart from all the other accused and apart from all the other counts than Counts 7, 8 and 9.  Counts 7, 8 and 9 all relate to the one subject, Ms K.  She is not the subject of any other counts and to that extent, of the seven subjects, Counts 7, 8 and 9 can properly be said to be separate from the other counts.  Count 7, possessing a slave, is pleaded against the first accused, Mr Kam Tin Ho, and the fourth accused, Ms Sarissa Leech.  Count 8, exercising power over a slave, is likewise pleaded against Mr Kam Tin Ho and Ms Sarissa Leech.  Count 9, the presentation of a false document, namely a Protection Visa, is pleaded against the fourth accused, Ms Sarissa Leech and the sixth accused, Mr Tran.  That relates to their presentation on 27 July 2003.  The period of the allegations is an extensive period.  Count 9 is of a specific date.

1. The reason the matters have taken so long to come to trial is because the parties, and in particular the prosecution, quite rightly, were waiting upon the decision of the High Court in R v. Tang which was handed down on 28 August 2008, being 2008 HCA 39 now reported in [2008] 249 ALR 200. That authoritative decision of the High Court directly bears upon the elements to be proved in this case and thus it was proper that the proceedings awaited that decision.

1. Mr Wilkinson, on behalf of the fourth accused Ms Leech, has submitted that a separate trial for her and Mr Tran or, if that application were unsuccessful, a separate trial for her, Mr Kam Tin Ho and Mr Tran on Counts 7, 8 and 9 be held, as distinct from all the other accused and all the other counts.

1. Essentially the reasons Mr Wilkinson advanced, in a most helpful submission, were first, that the case against his client Ms Leech is different in nature and ambit than that in relation to the principal or principals of the enterprise.  He acknowledged that it can be said that the allegations against his client properly can be construed as part of a whole, but he nonetheless submitted that the case against her is different in nature and in ambit.  The dealings with the one subject - in his client's case Ms K - he submitted were not only different but of a less oppressive order than in relation to a number of the other subjects.

1. He further submitted that a separate trial in relation to his client and Mr Tran or alternatively his client, Mr Tran and Mr Kam Tin Ho, would take some three to four weeks, as distinct to three to four months for the trial as a whole; and he relied upon the principles of fairness and oppression as to that, to which matter I shall return.

1. He further submitted that there is a risk of guilt by association that his client might be overwhelmed in the jury's consideration by the vast amount of evidence against various other accused in various other transactions, including lengthy telephone intercepts and in relation to various other subjects.  Pausing there, I am unsatisfied as to that submission.  I am quite confident that if his client were tried with the other five accused, she would receive proper and separate consideration by the jury and her separate trial would not be overwhelmed in consideration or prejudice by association with the other accused.

1. Mr Wilkinson in a submission, whose novelty I commend him for, submitted that as his client had not made a police statement, she might be obliged to give evidence before the jury because other accused did make statements to the police.  As I said to Mr Wilkinson in discussion, I am strongly in favour of the right to silence, but I do not think that should provide a double benefit of then getting a separate trial on top of the judicially approved right to silence.

1. Mr Wilkinson also relied upon the oppression of the possibility of Ms Leech if she gave evidence, being cross-examined by counsel for five other accused, which is a matter I take into account, but I do not regard as of itself persuasive.

1. Mr Champion submitted that, although the part alleged against Ms Leech is acknowledgedly a discrete and finite and limited part, nonetheless that is nothing out of the ordinary in joint trials of substance.  It is frequently the case that in joint trials of substance, one or two or more accused have a case against them which is limited, finite and discrete and but a part of a larger whole and I agree with Mr Champion in that regard.

1. Mr Champion relied upon, quite rightly, that the essential case here is that the group acted as part of one holistic enterprise; but he conceded properly that it is not contended that the group acted in a conspiratorial way in a strict sense over the same period of time or in the same circumstances or on the same facts.

1. Finally, Mr Champion properly acknowledged that were Ms Leech to be separated out on Counts 7, 8 and 9 with Mr Tran from the trial as a whole, that would not cause havoc to the prosecution case.

1. In the end I consider I should order a separate trial for Ms Leech on Counts 7, 8 and 9.  Essentially that is because of the principles of fairness.  I consider it would be unfair on Ms Leech, who is said to have a finite and limited part in this enterprise, to face trial with a number of other accused as to whom the allegations are much more substantial and more extensive.  Whilst as I have said I consider that she would not be unfairly treated by a jury, nonetheless I consider that as a matter of fairness, she should not be required to face up to a four month trial when a separate trial in relation to her could take three weeks or thereabouts.

1. Accordingly, and in circumstances to which I shall come, I propose to grant her a separate trial from all the other accused on the other counts than on Counts 7, 8 and 9.

1. I turn next to submissions made by Mr Guastalegname on behalf of the sixth accused, Mr Tran.

1. Mr Guastalegname applied formally for a separate trial alone of Mr Tran on Count 9, or, if unsuccessful, a severance of Count 9 from the indictment and a separate trial of Ms Leech and Mr Tran on Count 9.  It was that latter submission which he primarily pressed, having sensibly acknowledged the difficulty in having a separate trial as a stand-alone matter of Mr Tran on Count 9, separate from Ms Leech.

1. In support of that submission, Mr Guastalegname first submitted that Mr Tran was on the periphery of the enterprise, even according to the prosecution case.  He was a migration agent charged on one count out of 19 on one particular aspect standing alone and not at the centre of the enterprise.  He further submitted the evidence against his client was of a very short compass and the trial, he submitted, would take only about one week.  He further submitted that there was a specific issue in his trial, the accuracy of the translation, Mr Tran not speaking Thai, which was a specific matter which properly ought to be separated out and heard separately in any event.  He, like Mr Wilkinson for Ms Leech, also relied upon the general principle of overflow and overwhelming prejudice if tried with five other accused on 19 counts.  Finally, in a cri de couer, Mr Guastalegname put that his client, a person of unblemished character, has been visited with financial ruin by reason of being charged with this one single offence and has fallen upon financially and personally most difficult times and is now working as a store manager under personal circumstances and financial circumstances of great difficulty.

1. While I have every sympathy for Mr Tran in relation to his personal situation, I am not persuaded that his case ought to be separated out from the other two accused on Counts 7, 8 and 9, that is the first accused, Mr Kam Tin Ho, on Counts 7 and 8, and the fourth accused, Ms Sarissa Leech, on Counts 7, 8 and 9. 

1. That is so for the following reasons.  First, to separate out Mr Tran or to separate out Count 9 would involve the subject, Ms K, having to give evidence twice.  That is a matter which should not lightly be undertaken.  Second, I agree with Mr Champion in his submission that there is a close factual matrix of events relied upon in proof of Count 9 which involve primarily Mr Tran and Ms Leech but also the first accused, Mr Kam Tin Ho.  Mr Champion pointed out that the prosecution says that Ms Leech and Mr Tran committed the offence together in Mr Tran's office at the same time; and Mr Champion submitted that the normal principles of facts which are said to occur at the same time, at the same place with the same people, should not be the subject of separate counts - first, by a priori reasons of due process, and second, to avoid the risk of inconsistent verdicts.  I agree with Mr Champion in that regard.  Also, in paragraph 12 of the summary it is said that Mr Kam Tin Ho was also present in the course of the relevant event.

1. I understand Mr Guastalegname's submission of oppression on behalf of his client but his client at least has the benefit of a three to four months trial now being reduced to a three to four week trial, if Counts 7, 8 and 9 are separated out and are heard on a later occasion than all the other counts.

1. The final matter which has concerned me is the matter of the first accused having to face two trials.  I have given that matter careful consideration because I do not think that also is something which should lightly be undertaken.  It has been rightly put to me by Mr Andrianakis that his client would be oppressed by having two trials.  I agree with Mr Andrianakis about that.  However, very properly, Mr Andrianakis could not point to any specific prejudice or specific harm to his client's case by the two trials being separated out.  On balance, given the factors that I have recited in relation to the application on behalf of Mr Tran, I consider that the proper resolution of the matter is that Mr Ho, Ms Leech and Mr Tran jointly face a separate trial on Counts 7, 8 and 9 from all the other counts on the presentment and at a later time from the main trial.

1. For those reasons I direct that Counts 7, 8 and 9 be separated from the indictment and heard by a separate jury on a separate occasion.

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