Director of Public Prosecutions v Ho (Ruling No 14)

[2009] VSC 398

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:	5 June 2009
DATE OF RULING:	5 June 2009
CASE MAY BE CITED AS:	DPP v Ho & Ors (Ruling No 14)
MEDIUM NEUTRAL CITATION:	[2009] VSC 398	Revised 20 October 2009

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Criminal law and procedure – Criminal Code (Commonwealth) – s 270.3(1)(c) – Entering a commercial transaction involving a slave – Sex workers – Elements of offence – Procedure for ballot reducing jury to twelve jurors – Section 48(1) Juries Act 2000.

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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 Tim 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.14

HIS HONOUR:

1. Submissions have been made on behalf of the first, second and fourth accused that there is no evidence in law to support Count 10, the count involving Ms K.

1. Count 10 is that between 9 and 10 August 2004 at Melbourne, the first, second and fourth accused "did enter into a commercial transaction involving a slave, namely Ms K, contrary to paragraph 270.3(1)(c) of the Criminal Code (Commonwealth).”  The count does not relate to the third accused.

1. Mr Dickinson in a helpful submission, supported by Mr Montgomery and Mr Hartnett, put to the court that the count is in law unsustainable on the evidence in this case because, so it was submitted, Ms K did not have the character of a slave as contemplated by s.270.1 of the Code at the relevant time of the alleged offence, that is to say 9 and 10 August 2004.

1. Essentially the submission ran that for that count to be sustained in law, the character of slave must be then and there present, that is to say on 9 and 10 August 2004.

1. The submission proceeded that it could have been contended by the Crown, but was not, that there was an offence, not against s.270.3(1)(c), which this count is laid pursuant to, namely entering into a commercial transaction involving a slave, but rather under s.270.3(1)(b), namely engaging in slave trading.  The support for that submission was drawn from s.270.3(3)(a) and (b), which states:

"In this section:

slave trading includes:

(a)the capture, transport or disposal of a person with the intention of reducing the person to slavery; or

(b) the purchase or sale of a slave."

It was put that on the evidence it cannot properly be said that as at 9 and 10 August 2004 Ms K answered the description of slave as stated in s.270.1 of the Code and thus the count was misconceived.

1. In my view the submission is not sustainable.  I consider that it has the vice of treating the matter as a contract matter rather than as a criminally proscribed act or set of acts and that it has the vice of treating the proscription as merely chronological in character and involving mutually exclusive categories.

1. In my view the proper approach is provided both by the Code and by the leading authority in the matter, R v. Tang (2008) 249 A.L.R. 200. Gleeson CJ, at paragraph 26, set forth the true nature of the proscribed conduct including "the capacity to make a person an object of purchase." Hayne J, at paragraph 163, stated “to buy them as if they were articles of trade or commerce and thereafter possess and use them”. It is that character which is the proscribed offence and, in my view, that comprehends entering into a commercial transaction so that a person is reduced to that character. Further, in my view the word "involving" goes to the capacity, the character and the nature of the transaction to that end, namely treated as a commodity to be bought and sold. Thus, in my view, the term in s 270.3(1)(b) "entering into a commercial transaction involving a slave" comprehends the conduct here alleged, and as a matter of law, the count is competently laid on the evidence.

1. Mr Gurvich further submitted that in any event the subject, Ms K, already was a slave as contemplated by the Code in that she was the subject of certain discrete arrangements, false visa arrangements, incurring a debt and like conduct.

1. That also is the state of the evidence, and if it needed to be, that can also be relied upon by the prosecution in relation to Count 10.  But even if that were not so as a matter of evidence, in my view, as a matter of law, for the reasons I have stated, the count properly is laid and is founded upon the evidence.

1. In a separate submission, Mr Hartnett on behalf of the fourth accused further submitted that there is no evidence of the mental element in relation to Count 10 in relation to his client.  I am unpersuaded by that submission.  The evidence relied upon by the prosecution is conduct by the fourth accused which by its nature placed, and was to place, Ms K in the condition of slavery.  Further, the prosecution relies upon Mr Rahardjo's knowledge of the nature of the transaction, including by informing her of her obligations under the contract, and the arrangements as to her obligations under the contract and the visa arrangements can be relied upon by the prosecution as to the proof of mental element of the count in relation to the fourth accused.  I consider there is evidence capable of sustaining Count 10 as to the mental element in relation to the fourth accused.

1. In my view, essentially this case is a characterisation case.  The jury will decide, in accordance with the directions of law, whether as a matter of evidence the prosecution has proved beyond reasonable doubt that the requisite elements of slavery as provided by the Code and as adumbrated in R v Tang are made out, or whether the case fall short of that condition and simply makes out arrangements as to prostitution in oppressive working conditions.  That is a characterisation matter which the jury shall determine.

1. The final matter is that there should be a verdict by direction in relation to the second accused on Count 13, the cash transaction count. In my view, the provisions of s.48(1)(a) Juries Act 2000 are mandatory, that is to say a verdict, whether by direction or otherwise, can only be made by a jury reduced to 12, and that the ballot to reduce the jury from its present number, 15, to 12, must be conducted "before the jury retires to consider its verdict": s.48(1) Juries Act 2000. In my view, the proper procedure here is to inform the jury that that is the verdict that they are required by law to return in relation to the second accused on Count 13, but not to have the jury retire to consider and deliver that verdict until they retire to consider all the other verdicts in relation to all the accused, including the other counts in relation to the second accused. In that way therefore two ballots will not need to be conducted, but rather one. I consider that is consonant with the terms of the Act which must be complied with. As I say, the terms are mandatory. I consider that procedure does comply with the Act. It also obviates the undesirable process whereby three jurors are balloted off, a verdict on Count 13 in relation to the second accused is returned, the three jurors who had been balloted off are then returned to the jury, which is what is required under s.48(1) Juries Act 2000, and then a further ballot be held some days later in relation to all the other counts, including those in relation to the second accused. I consider that that is likely to fragment the jury and could cause substantial psychological or affective problems within the jury, and ought not to be done unless it is necessary. Accordingly, that is the procedure I propose to follow.

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