Director of Public Prosecutions v Ho and Ors (Ruling No.9)

[2009] VSC 392

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:	12 March 2009
DATE OF RULING:	12 March 2009
CASE MAY BE CITED AS:	DPP v Ho & Ors (Ruling No.9)
MEDIUM NEUTRAL CITATION:	[2009] VSC 392	Revised 19 October 2009

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Criminal law and procedure – Trial – Slavery – Commonwealth Criminal Code s 270.3(1)(a) and (c) – Financial Transactions Reports Act (Cth) s 31(1) – Pre-trial publicity – Defence application for substantial adjournment of trial – Considerations applicable – Limited adjournment granted.

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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 9

HIS HONOUR:

1. Most unfortunately today in the Melbourne “Age”, substantial articles on p.3 and on p.15 appeared concerning the very matters of substance which are the concern of this trial, albeit not of the same parties or witnesses.  I do not understand how that could have occurred when this trial is well known, is due to start on Monday, is unusual and not simply a repeat of sadly familiar crimes, and has been in the list.  I'll say no more presently about that matter.  The immediate question is the consequence.  I have no doubt that had this publicity occurred next week I would have had to discharge the jury without verdict. 

1. The central matter is the fairness of the trial of the accused.  I wholly agree with Chief Justice King in R v Thatcher (1985) 37 S.A. SR 597 as to the principles that are applicable and as to the robustness of juries and the constituency of juries and judicial direction.  However, the imminence of this article and its multi-media accompaniment to the jury trial necessitates the vacation of the trial to commence next Monday and the abandonment of the very large panel which has been summoned to form the foundation of the jury for this trial.  That is most unfortunate.

1. The next panel which can be brought forth from the community by the Juries Commissioner of sufficient size for this trial is Monday 30 March.  The one after that is Monday 20 April.  The defence ably presented by Mr Dickinson and supported by Mr Montgomery, Mr Bisas and Mr Hartnett have submitted that the interests of justice and the interests of the fair trial of the respective accused require that there be at least six months' adjournment before the next panel is brought forth, if not an adjournment until 2010.

1. In my view that submission is misconceived.  This publicity is essentially generic, that is to say it concerns the matters of prostitution, Thai prostitutes, Melbourne legal brothels and slavery as a social and judicial issue.  It is not a case where there are graphic images in the media of a bust, a series of arrests, persons being led from brothels in handcuffs to police vehicles or such images; nor is it specific, that is to say of some actual incident published in the media.  Rather it is analytical.

1. In one sense that makes what has occurred worse because there is no justification for the article being published this week; that is to say no event has occurred in the community such as an assault or an arrest which might have triggered immediate reactive publicity.  On the other hand, although in that sense it makes the publication worse by reason of that lack of immediate stimulus in the factual world, nonetheless it in my view involves less harm being done to the interests of the accused or to their fair trial.  Further, experience shows that things do rapidly fade in community memory.  With the very notable exception of the most terrible fires which have ravaged this State recently, there are many other events which occur here and overseas which, in the community's consciousness, fade apparently fairly quickly.

1. The prosecution has sought the adjournment to Monday 20 April, that is after Easter.  That is more than five weeks.  In my view that is more than ample to ensure that the jury panel and then the jury will not be affected by or afflicted by the publicity which has occurred this week.

1. I am quite confident that a jury will comply with lawful directions both as to prejudice, as to speculation, and as to non-investigation beyond the articulated evidence in court, as is required of juries.  I entirely understand Mr Montgomery's point made before lunch as to the power of the Internet and of course we all know that jurors uninstructed could well do research.  But juries are given judicial instructions.  In my experience jurors, once it is explained to them, well understand why limitations are placed upon them and in my experience, if one gives jurors a reason to do something, jurors comply with it.  So I am quite satisfied that a fair trial could be had if we commence on Monday 20 April.

1. I am also conscious of the need for the prosecution to keep available the numerous witnesses and I consider that, in light of Mr Gurvich's submission, that matter can be met by an adjournment to 20 April.  If in the end I was faced with the choice between the capacity of the prosecution to keep its witnesses on the one hand and the fair trial of the accused on the other, I would unequivocally choose the latter, that is to say the fair trial of the accused.

1. However, in my view, the fair trial of the accused can wholly be satisfied by an adjournment until 20 April . Accordingly I propose to extend the bail of the accused to that date and have the matter listed on Monday 20 April. As a jury panel will be first given directions pursuant to s.29(4)B Juries Act 2000 as amended by the Courts Legislation Amendment (Juries and Other Matters) Act 2008 s.4, effectively that means the trial would commence on the Tuesday 21 April.

1. I propose to give further consideration to the question of what, if anything, should be done in relation to the fact of the publicity.  I am and always have been very supportive of the media's right to articulate relevant social issues as well as to report events in the community.  However, as I say, I cannot understand how this publicity occurred this week given the imminence of this trial which was well known.

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