Director of Public Prosecutions v Ho (Ruling No 17)

[2009] VSC 400

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:	15 June 2009
DATE OF RULING:	15 June 2009
CASE MAY BE CITED AS:	DPP v Ho & Ors (Ruling No 17)
MEDIUM NEUTRAL CITATION:	[2009] VSC 400	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) – Order and timing of final addresses in joint trial where adjournment during addresses necessary.

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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.17

HIS HONOUR:

1. Mr Brand, who very helpfully has stood in for Mr Montgomery on behalf of the second accused, has applied on medical grounds, to which I shall shortly come, for the trial to be put off for a week, that is to say from this morning, Monday 15 June, to next Monday 22 June. 

1. The trial has reached the point where the prosecution final address has almost concluded. 

1. The reason for Mr Brand's application is that most unfortunately senior counsel for the second accused, Mr Montgomery, has fallen ill, quite seriously ill.  Presently he is in hospital on an intravenous drip because of pneumonia and is expected to be discharged home tomorrow.  He is expected to be on antibiotic treatment until Thursday.  It is hoped that he will be up and about on Friday 19 June. 

1. I certainly consider that even if Mr Montgomery were up and about on Friday 19 June, he should not be at court until Monday 22nd, that is a week from today.  It is essential that his medical condition is properly cared for and that the court fully and in a plenary sense respects that medical situation, and certainly the court does.

1. The question then arises as to what is the appropriate method of proceeding.  I am conscious of the position of the second accused and the desirability of having his counsel fully prepared for his final address.  I am conscious also of the position of all the other parties, including that of the Crown which is nearly finished its final address.  I am conscious also of the position of the jury who is called upon to follow the matter, understand it, not have its understanding fractured more than is necessary, and to decide the case according to the evidence.

1. I consider that it is inappropriate and undesirable to require the third and fourth accused's final address to proceed before the second accused's final address, and accordingly I shall keep that sequence in place.  That is to say Mr Montgomery for the second accused, followed by Mr Bisas for the third accused, followed by Mr Hartnett for the fourth accused.  I consider that can all occur next Monday 22 June, assuming, as we all sincerely hope, that Mr Montgomery's health progressively recovers during this week.

1. I am entirely unpersuaded that the trial should be stood over until next Monday.  I think the prosecution should be entitled to finish its final address, and I propose to permit that to occur today. 

1. That then leaves the question of the first accused.  In my view, it is unequivocally clear that the first accused's final address should commence today and should proceed in the normal course.  I would expect that will take until tomorrow night or perhaps even Wednesday morning.  I say so for the following reasons:

(1)  It is important that the jury follows the case.  The interface of the prosecution final address and the primary defence final address is important to be maintained, if it can be maintained in fairness to all parties including the first accused.

(2)  The first accused is the primary accused in this case, although by no means the only one of importance.  Effectively the cases run in descending numerical order according to the presentment, but the first accused is the primary accused.

(3)  Consonant with the last point, the conduct of the case has proceeded upon that basis and according to that criterion.  Thus, for example, in cross-examination
Mr Dickinson, with his broad shoulders, has undertaken the primary conduct of cross-examination and indeed of submissions, and the other accused persons through their respective counsel have taken a consequential role relevant to each of those further accused, without in any way diminishing those roles, especially Mr Montgomery’s role.

(4)  I consider it is in the interests of the first accused, and indeed of all the accused, that the prosecution case does not set in concrete without any answer being made over a week, and indeed a week and a half effectively, since the prosecution case commenced.  I think it is desirable in the interests of all the accused themselves and also of a balanced and fair trial, that one answer, not the only answer, but one answer, being the primary answer through Mr Dickinson, is heard by the jury after the prosecution case, rather than the prosecution case being allowed to mature and set in concrete over a week.

(5)  Finally I am satisfied that no prejudice to the first accused at all will occur by his counsel addressing after the prosecution and not further delayed.

1. For those reasons I propose the following.  First, I refuse Mr Brand's application for the whole trial to be stood over for a week.  Second I refuse the application on behalf of the first accused that the first accused's final address be stood over a number of days, namely until at least this Friday 19 June.  Thirdly I rule that the defence addresses ought to follow the order of the presentment and thus, subject to Mr Montgomery being well enough to be here next Monday, that on Monday 22 June that the defence addresses for the second, third and fourth accused will be heard on that Monday.

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