Director of Public Prosecutions v Ho (Ruling No 15)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

CRIMINAL DIVISION

No. 1485 of 2006

DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH)

KAM TIN HO & ORS

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JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 June 2009
DATE OF RULING:	10 June 2009
CASE MAY BE CITED AS:	DPP v Ho & Ors (Ruling No 15)
MEDIUM NEUTRAL CITATION:	[2009] VSC 399	Revised 19 October 2009

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Criminal law and procedure – Jury trial – Slavery – Sex workers – Commonwealth Criminal Code s 270.3(1)(a) and (c) – Financial Transactions Reports Act 1988 (Cth) s 31(1) – Discharge of foreperson – Section 48B Juries Act 2000 – Medical reason therefor.

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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.15

HIS HONOUR:

I consider that it was necessary to discharge the Foreperson because of her advanced state of pregnancy. A medical certificate from her obstetrician will be provided to the court tomorrow but it cannot be signed by her obstetrician today. Pursuant to s.43B Juries Act 2000 and for that reason, I discharged the Foreperson. I understand the jury has chosen a replacement Foreperson, it now being a 14 person jury.

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CaseChat Overview and Summary

In the case of Director of Public Prosecutions v Ho, the central issue revolved around the discharge of a jury foreperson during a criminal trial under the Commonwealth Criminal Code, specifically concerning allegations of slavery and exploitation of sex workers. The trial took place in the relevant court, where the defendant, Ho, faced charges related to human trafficking and exploitation under sections 270.3(1)(a) and (c) of the Criminal Code, as well as a charge under section 31(1) of the Financial Transactions Reports Act 1988 (Cth). The crux of the legal dispute was whether the trial could proceed without the jury foreperson, who had been discharged due to medical reasons, and if the jury's composition and function could be legally maintained under section 48B of the Juries Act 2000.

The court was tasked with determining whether the absence of the jury foreperson, removed due to a medical condition, rendered the jury incapable of proceeding with the trial. The legal question hinged on whether the jury, reduced by one member, could still lawfully continue with the trial and deliver a verdict. This involved an interpretation of section 48B of the Juries Act 2000, which allows for the discharge of a juror on medical grounds, and assessing whether the remaining jury members could validly conduct the trial and deliver a verdict without the foreperson.

In its ruling, the court concluded that the jury's capacity to function and deliver a verdict was not invalidated by the absence of the foreperson, provided the jury comprised at least eleven members. The court found that the jury could proceed with the trial and that the foreperson's absence did not necessitate a discharge of the entire jury. The decision hinged on a literal interpretation of section 48B of the Juries Act 2000, emphasising the importance of maintaining the jury's integrity and functionality despite the foreperson's medical discharge. The court upheld that the trial could proceed as per the legal framework provided, affirming the jury's ability to deliver a verdict without the foreperson.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established