Director of Public Prosecutions v Ho and Ors (Ruling No.2)
[2009] VSC 388
•5 February 2009
| 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 | |
DATES OF HEARING: | 3 - 4 February 2009 | |
DATE OF RULING: | 5 February 2009 | |
CASE MAY BE CITED AS: | DPP v Ho & Ors (Ruling No.2) | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 388 | Revised 20 October 2009 |
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Criminal law and procedure – Trial – Slavery – Sex workers – Commonwealth Criminal Code s 270.3(1)(a) and (c) – Financial Transactions Reports Act 1988 (Cth) s 31(1) – Possessing a slave – Using a slave – Public identification of subjects (formerly complainants) – s 18(1)(c) Supreme Court Act 1986 – Considerations applicable – Prohibition order made.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr D Gurvich with Mr R Davis | Director of Public Prosecutions |
| For the Accused Kam Tin Ho | Mr J Dickinson SC | Theo Magazis & Associates |
| For the Accused Ho Kam Ho | Mr J Montgomery SC | Slades & Parsons |
| For the Accused Hoo | Mr J Bisas | Michael J Gleeson & Associates Pty Ltd |
| For the Accused Rahardjo | Mr L Hartnett | Robert Stary & Associates |
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Ruling No 2
HIS HONOUR:
Before the Court is an application by the prosecution for non-publication of the names and identities of the subjects (previously called complainants) of the counts in the Indictment.
The indictment originally before the Court of 19 counts filed on 1 December 2008 and, as a consequence of my Ruling No.1 given on 23 December 2008, now of 16 counts is a set of counts contrary primarily to the provisions of s.270.3 Commonwealth Criminal Code. What is alleged in this case is that each of the accused has played a part in a holistic scheme to bring Thai women to Australia and profit from their willingness to work for minimal reward in the sex industry in Australia. It is alleged that the female subjects were variously traded, possessed and used as items of property, thereby reducing them to the condition of slavery.
Slavery is defined by s.270.11 of the Code as:
the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such a condition results from a debt or contract made by the person."
Under s.270.3(1) slavery offences are stated as:
“(1)A person who, whether within or outside Australia, intentionally
(a)possesses a slave or exercises over a slave any of the other powers attaching to the right of ownership; or
(b)engages in slave trading; or
(c)enters into any commercial transaction involving a slave; or
(d)exercises control or direction over or provides finance for
(i)any act of slave trading; or
(ii)any commercial transaction involving a slave."
The numerous counts oscillate around that section and related financial transactions under the relevant legislation.
There are seven subjects as to whom the application is made.
There is undoubted power to make the order sought pursuant to s.18(1)(c) Supreme Court Act 1986. Thereby is provided:
"The Court may, in the circumstances mentioned in s.19 -
…(c) make an order prohibiting the publication of a report of the whole or of any part of a proceeding or of any information derived from a proceeding."
The relevant ground relied upon by the prosecution in the application is in s.19(b) which provides:
"The Court may make an order under s.18 if in its opinion it is necessary to do so in order not to -
(b) prejudice the administration of justice."
The application is formally opposed on behalf of each of the four accused but, properly, counsel for the accused did not advance any specific arguments in relation to the matter.
Although the power to grant such an order is undoubted, the power is sparingly exercised. Frequently in the courts, and particularly in the criminal jurisdiction, matters which are embarrassing, personal or intimate are the subject of public process and, traditionally and rightly, the courts have always taken the view that embarrassment, even humiliation and stress, are not grounds for closure or partial closure of court proceedings. The courts stand firm against closure, including partial closure, by way of non-publication. I say "partial closure" by way of non-publication, because in modern society the media is the door to the open court.
The basal considerations in relation to open justice and militating against closure or partial closure are well known. In McPherson v McPherson[1], Lord Blanesburgh for the Board stated:
"Publicity is the authentic hallmark of judicial as distinct from administrative procedure."
In Re S(a Child) (Identification; Restrictions on Publication)[2], Lord Stein, in whose speech the other Lords agree, stated:
"A criminal trial is a public event. The principle of open courts puts, as has often been said, the judge and all who participate in the trial under intense scrutiny. The glare of contemporaneous publicity ensures that trials are properly conducted… Full contemporaneous reporting of criminal trials and progress promotes public confidence in the administration of justice. It promotes the values of the rule of law”.
[1](1936) AC 177 at 200.
[2][2005] 1 A.C. 593 at 607 -608.
It may be said that such general principle has but tangential application to limited applications such as this for prohibition of identification. But Lord Shaw in Scott and Anor v Scott[3] said:
[3][1913] A.C.417 at 477 - 478.
"The right of the citizen and the working of the Constitution in the sense that I have described have upon the whole since the fall of the Stuart dynasty received from the judiciary - and they appear to me still to demand of it - a constant and most watchful respect. There is no greater danger of usurpation than that which proceeds little by little, under cover of rules of procedure, and at the instance of judges themselves."
A like warning was sounded by Lord Wolfe MR in R v Legal Aid Board; ex parte Kaim Todner:[4]
[4][2005] 1AC 593 at 607-608 and in whose speech the other Lords agreed.
"The need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases."
Thus that well-known and proper judicial methodology of “exceptions to grow by accretion as the exceptions are applied by analogy to existing cases" (Lord Wolfe MR) and "that which proceeds little by little, under cover of rules of procedure, and at the instance of judges themselves" (Lord Shaw) properly needs to be strictly contained, for the basal reasons I have stated.
Thus it is that I would refuse this application on the grounds of embarrassment, shame, humiliation or stress, harsh that may personally seem. It is not the harshness which in the end is the determinating factor but the essential of courts being open including open to the media.
However, I consider in this case, given the nature of the counts preferred, that the application ought be acceded to. That is because the nature of the counts preferred are slavery counts in a sexual context.
There is a powerful public interest in certain categories of offence not disappearing into the shadows but being brought out into the full light of the administration of justice. A number of categories are well known: informers, victims of extortion, and blackmail. The category of slavery in my view falls squarely within the principles and necessity of the administration of justice just as those categories traditionally have. Like reasoning was expressed by the Court of Criminal Appeal of the Supreme Court of New South Wales in R v Kwok[5], and I consider that the nature of these counts being slavery counts warrants their being treated as exceptions to the powerful general principle I have previously stated.
[5](2005) 158 A.Crim.R 160.
At the committal of the first three accused in the Melbourne Magistrates' Court on 27 March 2006, evidence was given before the learned Magistrate by Agent D.C. Skewes, Agent G.S. Chadwick and Agent L. Palmer, they being officers of the Australian Federal Police attached to the Transnational Sexual Exploitation and Trafficking Team in Melbourne. His Honour Magistrate Hodgens at D.25 - 26 gave reasons for ruling pursuant to the provisions of the Magistrates' Court Act s.126(1)(b) of a like Order being made below. His Honour’s reasons were clear and articulate and insofar as the Magistrates’ Court is concerned I agree with him.
At this trial level I consider that a like consequence should follow, because of the nature of the counts preferred in the indictment.
Accordingly I grant the Order sought that no person shall publish or cause to be published in any newspaper or journal or broadcast by means of radio or television or any other means any photograph, picture or other matter including name which might directly or indirectly refer to or enable identification of any of the following subject witnesses in this trial, namely Ms N, Ms Y, Ms T, Ms K, Ms R, Ms K and Ms T.
I shall sign an Order to that effect.
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