Director of Public Prosecutions v Ho (Ruling No 8)

[2009] VSC 391

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:	19 February 2009
DATE OF RULING:	19 February 2009
CASE MAY BE CITED AS:	DPP v Ho & Ors (Ruling No 8)
MEDIUM NEUTRAL CITATION:	[2009] VSC 391	Revised 20 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) – Application for permanent stay in relation to one subject – Application refused – Severance of counts.

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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.8

HIS HONOUR:

1. First as to the matter of cross-admissibility so called in the written and oral submissions.  I rule that the six categories stated in paragraph 4 of the prosecution's written submissions dated 16 February 2009 are admissible at common law as similar fact evidence and pursuant to s.398A Crimes Act 1958.

1. I direct that the prosecution serve upon the other parties and file in court further and better particulars of those six categories that is to say stating the evidence which is to be elicited pursuant to those categories and stating the use to which it is to be put including specifically its admissibility in relation to each named accused by Monday 2 March 2009, if that is convenient to counsel, in particular Mr Gurvich and I will come back to that in a moment.

1. On the permanent stay application in relation to Counts 13 and 14 I refuse that stay application.  I consider that there are not exceptional circumstances as required at law for a permanent stay which is itself an exceptional remedy that is to say I consider the circumstances in this case fall short of the doctrine of permanent stay.

1. However I consider that it would be unfair to proceed with Counts 13 and 14 before this jury because I have already excluded, under s.55AB, the evidence of Ms T and although the prosecution relies upon other material than her direct evidence below I consider it is unfair upon the respective accused for them to have to conduct a trial in such limited circumstances on Counts 13 and 14. 

1. Therefore I would accede to an application made to sever those counts if that application is made, although of course I will hear all counsel on it, but with this addition, if at the end of this trial in relation to the other five subjects than Ms T the trial was concluded in relation to those five subjects I think it would be unfair upon the defence to have face a further trial on one subject namely Ms T as effectively the evidence in relation to her replicates the evidence in relation to the other five subjects.  That does not mean that Ms T does not matter.  Of course she does.  But the evidence categorically is similar to the evidence in relation to the other five persons.

1. Therefore at the end of the trial, if all the accused were acquitted of these five subjects, I would take some persuasion to permit a new trial on the sixth subject, Ms T.  On the other hand, if all the accused or some of the accused were convicted in relation to these five subjects, I would take some persuasion that it would be anything but otiose to proceed with a further trial in relation to Ms T.

1. Thus for basal reasons of fairness it may be that at the end of this present trial the matter of Ms T will not proceed.  However for purposes of doctrine and for purposes of the permanent stay application I am quite unsatisfied that the criteria of exceptional circumstances adumbrated in the cases is made out presently in relation to Ms T.

1. Accordingly I rule that counts 13 and 14 be severed from the presentment and I refuse the application for a permanent stay in relation to those counts.

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