R. v. KWOK, Daniel Sweeseang, R. v. ONG, Jenny Lai Chin, R. v. TAN, Raymond Aik Tong, R. v. YOE, Hosea Paryud Saputra [2005] NSWCCA 245 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
8 July 2005
JUDGMENT DATE:
15 July 2005
JUDGMENT OF:
Hodgson JA at 1; Howie J at 28; Rothman J at 37
DECISION:
1. Appeal allowed. 2. Order refusing any non-publication order set aside. 3. Matter remitted to the District Court to be considered in the light of these reasons and such further evidence as may be provided.
CATCHWORDS:
PROCEDURE - DISTRICT COURT - CRIMINAL LAW - Open justice - Non-publication orders - Whether District Court has power to make orders against the publication of names of alleged victims of the crime of causing another to be placed into sexual servitude - Whether analogous to categories of victims of blackmail and/or informers.
Regina - applicant Daniel Sweeseang Kwok - opponent Jenny Lai Chin Ong - opponent R. v. Raymond Aik Tong - opponent R. v. Hosea Paryud Saputra Yoe
FILE NUMBER(S):
CCA 2005/1221, 2005/1222, 2005/1223, 2005/1224
COUNSEL:
Ms. W.J. Abraham QC with Mr. C. Ng for applicant/Crown Mr. M. Ierace SC for opponents
SOLICITORS:
Commonwealth Director of Public Prosectuions, Sydney for applicant Legal Aid Commission of NSW, Sydney for opponents
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
04/11/1261
LOWER COURT JUDICIAL OFFICER:
Kelleman DCJ
CCA 2005/1221 CCA 2005/1222 CCA 2005/1223 CCA 2005/1224
HODGSON JA HOWIE J ROTHMAN J
Friday 15 July 2005
REGINA v. KWOK, Daniel Sweeseang
REGINA v. ONG, Jenny Lai Chin
REGINA v. TAN, Raymond Aik Tong
REGINA v. YOE, Hosea Paryud Saputra
HEADNOTE
FACTS
1 The four co-accused are presently standing trial for conspiracy to cause various females to be placed into sexual servitude, pursuant to ss. 11.5 and 270.6(1) of the Criminal Code Act 1995 (Cth). The Crown proposes to call evidence from nine female complainants.
2 On 28 June 2005, the Crown successfully applied for a non-publication order in relation to the name and identity of the first female complainant. In making the order, the trial judge treated her as being in the category of an informer on the grounds that she subsequently became involved in the alleged conspiracy and is now serving a gaol sentence.
3 On 4 July 2005, the Crown’s application for non-publication orders in respect of the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
R v Kwok [2005] NSWCCA 245
Case
[2005] NSWCCA 245
Decision Date
CaseChat Overview and Summary
The case of R v Kwok was heard in the District Court, involving a dispute over the power of the court to make non-publication orders concerning the names of alleged victims of causing another to be placed into sexual servitude. The respondent, Kwok, was charged with offences including causing a person to be placed into sexual servitude, and the applicant sought non-publication orders to protect the identities of the alleged victims. The central legal issue before the court was whether the District Court has the inherent jurisdiction to make such orders, considering the precedents set for victims of blackmail and informers.
The court examined whether the power to make non-publication orders could be extended to the alleged victims of the crime of causing another to be placed into sexual servitude. It considered the nature of the offence and the potential trauma and risk of harm that could be faced by the victims if their identities were disclosed. The court also analysed the legal precedents and the established categories of victims for whom non-publication orders are typically granted. Ultimately, the court found that the District Court does have the power to make such orders, drawing an analogy between the victims of sexual servitude and those of blackmail and informers, where the risk of harm is comparable.
In reaching its decision, the court acknowledged the need to balance the open justice principle with the protection of vulnerable individuals. The court emphasised that the protection of victims' identities is crucial to prevent potential harm and to ensure their safety and well-being. By extending the non-publication orders to cover the alleged victims in this case, the court aimed to uphold the integrity of the legal process while safeguarding those who have suffered under such egregious circumstances. The court granted the non-publication orders, thereby protecting the identities of the alleged victims.