Director of Public Prosecutions v Ho and Ors (Ruling Nos.4,5,6 and 7)

[2009] VSC 390

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:	13 February 2009
DATE OF RULING:	13 February 2009
CASE MAY BE CITED AS:	DPP v Ho & Ors (Ruling Nos.4,5,6 and 7)
MEDIUM NEUTRAL CITATION:	[2009] VSC 390	Revised 19 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) – Evidentiary matters.

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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 Nos. 4,5,6 and 7

HIS HONOUR:

1. I will deal with four matters for ruling in turn.

1. First, the record of interview of the first accused on 2 December 2004 by Federal Agent Ms Accetta, commencing at 6.43 pm which appears at Depositions 2090 to 2091.

1. In relation to Answers 402 to 406 to that interview, I rule that the answers are not admissible because they are not probative of any element of the crimes charged or issue joined between the parties.

1. On the second matter for ruling, the admission of statements of the subjects made to police - that is the records of conversations with police and formal statements by the subjects - I rule that the conversations and statements are admissible in proof of the crimes charged.  Although out of court statements in the absence of an accused properly are normally characterised as hearsay, these statements are admissible in proof of directions given to the subjects by one or more accused and of subjugation including control of the subjects by them.

1. On the third matter, first the species then the genus: telephone intercepts that may disclose uncharged acts, helpfully presented to the court in colour-coded schedule of 11 February 2009 by the prosecution, I rule that the intercepts are inadmissible insofar as the intercepts relate to subjects other than the subjects named in the 16 counts in the indictment.  Thus the intercepts are inadmissible in relation to Tina, Michelle and other unnamed persons, other than the subjects named in the 16 count indictment.

1. As to the genus of uncharged acts, I rule that other evidence of uncharged acts - that is, acts in relation to subjects other than those named in the 16 counts in the indictment - is inadmissible.  First, reception of that evidence is not justified in law.  Second, although it is not necessary to reach this point, even if such evidence were justified to be admitted, it should be excluded in the interests of a fair trial.

1. The fourth category are the post-search warrant telephone interceptions of the first three accused, from 3 to 9 November 2004 appearing at Depositions 7250 to 7304 and at pages 43 to 46 of the document headed Telephone Intercepts and the anxiety expressed by those accused in those interceptions.  I rule that those interceptions are admissible in law against each of those speaking accused: first because they are capable of bearing upon the element of slavery including control and direction being an element of the crimes charged; and second, because the intercepts are capable of proof of involvement of the speaking accused in the matters constituting the crimes charged.  The intercepts are not admissible in relation to subjects other than those named in the 16 counts.  As the prosecution rightly has conceded, they are not to be used by putting to the jury the doctrine of consciousness of guilt.

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