Director of Public Prosecutions v Ho and Ors (Ruling No.3)

[2009] VSC 389

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.3)
MEDIUM NEUTRAL CITATION:	[2009] VSC 389	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) – Subject unable to be found – Evidence at committal – s 55AB Evidence Act 1958 – Application by prosecution for admission of deposition – Considerations applicable – Application refused.

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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 3

HIS HONOUR:

1. It is sought on behalf of the prosecution, pursuant to s.55AB Evidence Act 1958, the admission of the deposition of one subject, Ms T, who cannot be found and thus cannot give personal vive voce evidence in the trial.

1. Ms T gave evidence at the committal on 4 April 2006 (D. 257-292)of the first three accused and made two statements, one on 29 November 2004, (D.1122 to 1131 and 10 August 2005, D. 10,065 to 10,071 with exhibits to those two statements).  In relation to the fourth accused, Mr Rahardjo, there was no vive voce evidence at his committal, which was a hand-up brief on 17 December 2007.  Ms T’s statements were part of the hand-up brief.

1. Before the court is a statement by Officer S. Palmer of the Australian Federal Police made 30 January 2009 setting out the extensive inquiries and efforts which have been made to find the subject, Ms T, all to no avail.  I am satisfied on the basis of that statement that all proper efforts have been made to find the subject and that she cannot be found and is not available to give evidence before the jury despite extensive and full enquiry seeking to ascertain her.

1. The prosecution thus seeks to lead her evidence below, which was vive voce in relation to the first of three accused but of course not in relation to the fourth accused, being a hand-up brief, as evidence before the jury.  The jury is yet to be empanelled.

1. The power to do so is well known and is stated in s.55AB and is frequently followed in court proceedings.

1. A written submission dated 2 February 2009 of the learned leading prosecutor, Mr Gurvich and of Mr Davis has been filed in the Court.  It is a most thoughtful and comprehensive submission and I commend both counsel for it.  Mr Gurvich has spoken to it as well in oral submission.

1. To a substantial extent Mr Gurvich's submissions are right.  There is power to admit evidence in the way that the prosecution seeks.  His analysis is correct as to the relevant considerations which can be said properly to support the prosecution application.

1. However, in the interests of a fair trial, having considered the matter, I conclude that the application pursuant to s.55AB to lead the evidence of the subject, Ms T, before the jury by way of depositional material ought be refused. That is because she is a central subject of the present counts 13 and 14 (the former counts 16 and 17): count 13 being that the first, second and fourth accused entered a commercial transaction involving a slave contrary to paragraph 270.3(1)(c) of the Code; and count 14 being that the first and the third accused intentionally possessed a slave contrary to s.270.3(1)(a). The two counts relate to 2004. The reason for the lengthy time of the matter coming to trial is because the parties, in my view very properly, were waiting upon the decision of the High Court in Tang, which was handed down on 28 August 2008 and is reported in 249 ALR 2000.

1. In my view, because the relevant evidence is of the subject of the counts, it would be unfair to permit that evidence to be led by way of depositional material.  Thus, I do not need to reach the helpful submissions of Mr Hartnett in relation to the hand-up brief, his client's situation, of course, being different as the subject was not cross-examined below on behalf of Mr Rahardjo.  Rather, I have reached the conclusion I have reached in the interests of a fair trial.  The trial, of course, must be fair to the prosecution as well as the accused but, in my view, the balance in this instance falls squarely on the side of the accused.

1. Accordingly, I refuse the application to lead the evidence below of Ms T before the jury on the present Counts 13 and 14, the previous Counts 16 and 17.  Mr Gurvich has said that there is other evidence admissible and bearing upon those counts, and if that is so, that evidence, of course, can be led;  but the evidence of Ms T below cannot be led.

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