McIvor v R; Tanuchit v R

Court of Criminal Appeal (NSW)|2009-09-18|Before: Spigelman CJ, Grove J, McClellan CJ, Clellan CJ

Background facts 6 The charges arose with respect to the appellants' conduct in relation to six women, who were Thai nationals and who were employed in a brothel owned by the appellant McIvor and co-managed by both appellants, who are husband and wife. With respect to five of the complainants, the jury convicted on each charge. With respect to a sixth complainant, the jury acquitted the appellants. 7 Evidence of the physical characteristics of the premises and of the conduct at the premises involving the six Thai women was distilled into what the Crown characterised as nine "indicia of slavery" as follows:

That the complainants: (i) lived and worked in locked premises operated by the appellants after they arrived in Australia; (ii) did not have keys to the premises and were not permitted by the appellants to leave the premises unaccompanied; (iii) did not speak English; (iv) did not know anyone outside the brothel; (v) were housed, cooked for and fed by the appellants; (vi) were constantly put to work by the appellants; (vii) were controlled by the appellants in all aspects of their lives including where they went, where they ate, where they slept and with whom they associated; (viii) had a fear of immigration authorities fostered in their minds by the appellants; and (ix) were instructed by the appellants to hide in the event that authorities attended the brothel premises. 8 For the purposes of dealing with the grounds of appeal it is not necessary to outline the factual basis for these "indicia". There is, however, in my opinion some confusion that can arise from the use of the word "indicia". The facts and matters set out in this list are a characterisation of the primary facts contained in a significant body of evidence. With the possible exception of (vii), the "indicia" are not capable of constituting slavery on their own, as distinct from being one of the range of circumstances which are relevant to determining the physical element of the offences under s 270.3(1)(a) of the Code.

The appeal 9 The issues raised by the three grounds of the appeal all turn on his Honour's directions to the jury. There is little overlap between the directions pertinent to each of the three grounds and, accordingly, I will set out the relevant extracts when dealing with the two grounds of appeal which should be dealt with. The third ground, involving the alleged confusing nature of a particular metaphor used in the Crown submissions and adopted in the directions, is unlikely to arise on the new trial. 10 Counsel then appearing for the appellants at trial did not question the directions that his Honour made. Accordingly, r 4 of the Criminal Appeal Rules applies. In each case the appellants seek leave. The Crown opposes leave.

Direction on the fault element issue 11 This ground of appeal is: "The trial judge misdirected the jury by failing to direct, or adequately direct, them as to the meaning of the requisite fault element, 'intention', and how it was to be applied to the facts of the case." 12 His Honour's directions on the issue of intention were in part contained within an aide-mémoire, which his Honour provided to the jury and upon which he elaborated in his oral directions. It is pertinent to set out the whole of the document: "DIRECTIONS An element of the offence is a matter that the Crown must prove beyond reasonable doubt before the accused can be found guilty. Possess slave Counts 1, 3, 5, 7, 9 and 11 in the indictment. The elements of this offence are that between the dates alleged in the charge, the accused: (1) Within Australia, (2) Intentionally possessed a slave. Slavery : In the context of this case slavery is the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such a condition results from a debt or contract made by the person. The meaning of the phrase 'powers attaching to the right of ownership' is best explained verbally and this will be done during the summing up. Intentionally : a) A person has intention with respect to conduct if he or she means to engage in that conduct. b) A person has intention with respect to a circumstance, namely the condition of slavery, if he or she believes that it exists or will exist. c) A person has intention with respect to a result, namely the condition of slavery, if he or she means to bring it about or is aware that it will occur in the ordinary course of events. Possession : The fundamental feature of ownership is the claim of absolute right over the property that it gives to the owner as against all others to possess the property, save to the extent that the right to possession is qualified by any law, or by permission given by the owner to another. The Charge of Use Slave Counts 2, 4, 6, 8, 10 and 12 in the indictment. The elements of this offence are that between the dates alleged in the charge, the accused: a) Within Australia, b) Intentionally exercised over a slave powers attaching to the right of ownership , c) namely, the power to use . The meaning of the word 'use' in the context of this case is best explained verbally and this will be done during the summing up." [Emphasis added.] 13 The critical aspect of this direction in the appeal turns on the subheading "Intentionally" which sets out all the three subsections of s 5.2 of the Code. Namely, sub-ss (1), (2) and (3) are set out precisely in this direction as pars (a), (b) and (c) respectively. 14 It was common ground on this appeal that only s 5.2(1) was pertinent. 15 Under the Code an offence consists of physical elements and, unless contrary provision is made, of a fault element associated with each physical element. The parties accept in this Court that the physical elements of 'possession' and of 'use' answer the description of "conduct". With respect to a physical element of this character, the default fault element, there being no provision to the contrary, is s 5.2(1), namely: "A person has intention with respect to conduct if he or she means to engage in that conduct." 16 His Honour reiterated the reference in the aide-mémoire to all three subsections in his oral directions when he said: "The word intentionally is defined, that is the definition that is provided in the relevant Commonwealth legislation and has three matters. A person has intention with respect to conduct if he or she means to engage in that conduct. That is a meaning of intention that we commonly use in our day to day lives. Second a person has intention with respect to a circumstance, namely here the condition of slavery if he or she believes that exists or will exist. A person has intention with respect to a result, namely the condition of slavery if he or she means to bring it about or is aware that it will occur in the ordinary course of events. Again I will give you some supplementary directions about the application of those statements in a short while." 17 In order to understand the content of some of the directions that his Honour gave to the jury, it is necessary to note that at the time of this trial the directly relevant authority was the decision of the Court of Appeal of the Supreme Court of Victoria in R v Wei Tang [2007] VSCA 134; (2007) 16 VR 454. This decision was subsequently overturned, in relevant respects, by the High Court in The Queen v Wei Tang [2008] HCA 39; (2008) 237 CLR 1. 18 In submissions to Taylor DCJ, the Crown indicated that an appeal had been lodged against the judgment of the Victorian Court of Appeal, but that his Honour was bound to follow that authority. The Crown indicated that it intended to challenge the directions with respect to the fault element given in the principal judgment in the Victorian Court of Appeal by Eames JA, but that his Honour should proceed on the basis that it represented the law. 19 Of particular significance is the following passage at [77] in the judgment of Eames JA which, as will presently appear, his Honour followed precisely: "In my opinion, the approach urged by the Crown, and adopted by his Honour, did not correctly identify the elements of the offences which the Crown had to establish. Given the way the Crown mounted its case, and having regard to the full terms of s 5.2 of the Code, then, in my opinion, in order to constitute the first of the offences under s 270.3(1)(a), namely, 'intentionally ... possess[ing]' a slave, the following matters had to be proved against Wei Tang (I will employ the neutral descriptor of 'worker'): First, the worker must have been reduced to the condition that would constitute her a slave, as defined in the Act. The jury must be satisfied that she had had powers exercised over her as though she was mere property, with the result that she had been reduced to the status of mere property, a thing, over whom powers attaching to the right of ownership could be exercised. Secondly, the accused must have known that the worker had been reduced to a condition where she was no more than property, a thing, over whom persons could exercise powers as though they owned her. Thirdly, the accused must have intentionally possessed the worker, that is, must have intentionally held her in her custody or under her physical control. [ fn 49 The word 'intentionally' here is given the meaning in s 5.2(1) of the Code. The definition of 'possession' used by the judge was in broader terms than I have employed. I accept that possession might be constituted without actual physical custody or control. This trial was conducted on the basis that the broader definition applied and it is unnecessary to resolve whether the additional language employed by his Honour added anything to the terms I have used.] Fourthly, the accused must have possessed the worker in the intentional exercise of what constitutes a power attaching to a right of ownership, [ fn 50 It would not be necessary to prove that an offender knew that the power to possess or use property was an incident of the right of ownership; the judge could have directed the jury that as a matter of law those were powers attaching to ownership, but that the critical question for the jury was as to the intention which accompanied such exercise of the power of use or possession of a complainant which they found to have occurred.] namely, the power of possession. For that to be the case the accused must be shown to have regarded the worker as though she was mere property, a thing, thereby intending to deal with her not as a human being who had free will and a right to liberty, [ fn 51 The offence of enslavement under s 268.10(1) is accompanied by a definition (s.268.10(2)) of the phrase 'exercises any or all of the powers attaching to the right of ownership'. The definition applies only to that offence, but includes 'purchases, sells, lends or barters a person or imposes on a person a similar deprivation of liberty ...'] but as though she was mere property. However harsh or oppressive her conduct was towards the worker it would not be sufficient for a conviction if, rather than having possessed the worker with the knowledge, intention, or in the belief that she was dealing with her as though she was mere property, the accused possessed her in the knowledge or belief that she was exercising some different right or entitlement to do so, falling short of what would amount to ownership, such as that of an employer, contractor, or manager. [ fn 52 Here the definitions contained in both s 5.2(2) and (3) are relevant and should have been drawn to the attention of the jury, the relevant 'circumstance' and 'result' being that the person was being treated as property. In appropriate cases, where defences of mistake or ignorance of fact were raised, the jury would need to be advised of the terms of s 9.1 of the Criminal Code.]" 20 His Honour's inclusion in his directions to the jury of all three subsections of s 5.2 of the Code was based on the observations of Eames JA in footnote 52 as quoted in the immediately preceding paragraph and also on the following observations in [68] of his judgment, where Eames JA said: "In directing the jurors as to the meaning of 'intention', his Honour provided them with a written definition. That definition was taken from s 5.2(1) of the Criminal Code Act 1995. His Honour did not provide the jury with the two other paragraphs in s 5.2. The omission of those paragraphs, in my opinion, undoubtedly contributed to the inappropriate narrowness of the directions which the jury received as to the meaning of the word 'intentionally' in s 270.3(1). In particular, the omission meant that the jurors were not alerted as to the relevance, when considering the question of intention, of the belief which the accused may have held as to the basis on which she was dealing with each of the complainants." 21 The references by Eames JA to all three subsections of s 5.2(1) of the Code were specifically rejected in the High Court in Wei Tang supra, where Gleeson CJ, with whom five of the other judges agreed, referred at [40] to footnote 52 in the judgment of Eames JA (which I have set out at [19] above) and said: "[46] … Both possessing a slave and using a slave are conduct, and the prosecution had to establish the existence of the conduct and one of the fault elements specified in s 5.1(1). The prosecution case was conducted on the basis that the relevant fault element was intention. In a footnote earlier mentioned, Eames JA said that all of sub-ss (1), (2) and (3) of s 5.2 were relevant. This is not easy to understand: sub-s (1) applies where the physical element is conduct; sub-s (2) applies where the physical element is a circumstance; sub-s (3) applies where the physical element is a result. Section 4.1 says a physical element may be conduct or a result of conduct or a circumstance in which conduct or a result of conduct occurs. [47] The physical element was conduct (which includes a state of affairs); the fault element was intention. It was, therefore, s 5.2(1) that was relevant. A person has intention with respect to conduct if he or she means to engage in that conduct. Knowledge or belief is often relevant to intention. If, for example, it is the existence of a state of affairs that gives an act its criminal character, then proof of knowledge of that state of affairs ordinarily will be the best method of proving that an accused meant to engage in the proscribed conduct." 22 In his directions to the jury, Taylor DCJ adopted, almost without amendment, the terminology of Eames JA in [77], set out at [19] above. The appropriateness of doing so was common ground before his Honour. The matter is, of course, now different, in the light of the rejection of these observations by the High Court. 23 It is pertinent to set out his Honour's directions on the elements of the offence with a view to placing the matters to which criticism is directed in their full context. His Honour was elaborating on the aide-mémoire document set out at [12] above, which the jury had in its hands at this stage: "In order to constitute an offence under s 270.3 1A the section stated in the indictment, namely intentionally possessing a slave. The following matters needs to be proved against an accused. In giving this direction I will employ a neutral description of worker, there are four of them. I will turn to those now. First the worker must have been reduced to the condition that would constitute her as a slave as defined in the Act and I have given you that definition that comes from the Act. You as a jury must be satisfied that a particular complainant had powers exercised over her as though she was mere property with the result that she has been reduced to the status of mere property. A thing over whom powers attaching to the right of ownership could be exercised. The particular power of ownership being exercised its use or simply possession. Secondly, an accused must have known that the worker had been reduced to a condition when she was no more than property, a thing over whom persons could exercise powers as though they owned her. Thirdly, an accused must have intentionally possessed a worker, that is must have intentionally held her in custody or under physical control. Fourthly, each accused must have possessed the worker in the intentional exercise of what constitutes a power attaching to the right of ownership, namely the power of possession. For that to be the case an accused must be shown to have regarded the worker as though she were mere property, a thing, thereby intending to deal with her, not as a human being who had free will and a right to liberty but as though she were mere property. However harsh or oppressive an accused's conduct was towards the worker it would not be sufficient for a conviction if rather than having possessed the worker with the knowledge, intention or in the belief that he or she was dealing with her as though she were mere property, the accused possessed her in the knowledge or belief that he or she was exercising some different right or entitlement to do so, falling short of what would amount to ownership such as that of an employer, contractor or manager. They are the four points. The word use bring to mind, for example, employing a person for any purpose or utilisation for some aim or purpose. In the context of this case much more is required than that the person be shown to have been exploited, abused or humiliated, whether physically, emotionally or financially. To be a slave the person must be in a state where she is dealt with by others as though she were mere property, a thing. For the exercise of the power to contravene s 270.31A of the Criminal Code. The accused must have knowingly treated the person as though she were the accused's property. Only when that state of mind exists in the exercise of power referable to a right of ownership as the section requires." [Emphasis added.] 24 His Honour also said: "For the offence of intentionally possessing a slave the accused must have known that the complainant had been reduced to a condition where she was no more than property, a mere thing, over which the accused could exercise power as though he or she owned the complainant. … The crown has to prove that each accused did know that in each case the worker had been reduced to a condition in which she was treated as though she were mere property, just a thing who had no say in how she was treated." [Emphasis added.] 25 The jury were clearly directed that "intention" was the relevant fault element. They were, however, given three alternative ways in which such intention could be established. Those three alternatives were linked to three different concepts - conduct, circumstance and result. The jury was not directed expressly to the only concept that mattered, that is intention as to conduct. 26 Accordingly, it is possible that the jury acted on the basis that the fault element of the offence was made out if it concluded beyond reasonable doubt that 'possessing' or 'using' a slave had been accompanied by: a "belief" that it existed (as if it was a "circumstance"); or an awareness 'that it would occur' in the ordinary course of events (as if it were a "result"). 27 The fact that counsel for the defence did not object to the directions in this respect is clearly explicable on the basis that his Honour was obliged to proceed on the basis of the decision of the Victorian Court of Appeal. Indeed, the Crown indicated that it believed that that decision was wrong, in the relevant respect, but that it was a matter for the High Court and his Honour should follow the Victorian Court of Appeal. This is a clear case for the grant of leave under r 4. 28 The jury were given incorrect and confusing directions on the fault element of the offence. There is no doubt that this constitutes a significant miscarriage of justice. The appeal should be allowed and a new trial ordered. It was on this basis that I joined in the orders made by the Court on 18 September 2009.

Direction on the "indicia of slavery" 29 This ground is: "The trial judge misdirected the jury by failing to direct, or adequately direct, them as to how and to what extent nine specific indicia of slavery, raised in the course of the trial, were able to be used to establish any or all of the elements of the offences charged under s 270.3(1)(a)." 30 The principal thrust of the appellants' submissions on this ground of appeal is that his Honour's summing-up failed to direct the jurors' minds to the extent to which each of the "indicia" could properly be said to demonstrate a relevant condition of slavery and the failure to acknowledge any relevance as to the circumstances in which these indicia were manifested. Furthermore, the directions failed to give adequate consideration to whether the indicia arose independently of the conduct of each appellant. Particular weight was placed on statements made by his Honour which suggested to the jury that the element of the offence of either 'possession' or 'use' could be satisfied if only one of the nine indicia was established. 31 After Taylor DCJ gave directions with respect to the elements of the offence, his Honour turned to the list of "indicia of slavery" to which he referred as "essential ingredients" of the offences. 32 There is a certain amount of confusion in the directions, at this point, with respect to the use of the words "essential ingredients" and the direction his Honour gave with respect to the "elements" of the offence. As noted above, the document provided to the jury, as elaborated upon orally, referred to an "element" as a matter that "the Crown must prove beyond reasonable doubt". In the context of considering the "indicia", his Honour also said, with respect to one matter that was a possible "indicia", but was not relied upon as such by the Crown, that: "it is not an essential ingredient that has to be proved. If it had to be proved it would be in the document that I have given you." 33 His Honour also said that this particular matter "is not an essential ingredient or element of any of the alleged offences". Finally, his Honour stated that "[t]he onus is on the Crown to prove the essential ingredients of a particular offence …". 34 His Honour continued his summing-up to the jury the next morning and said: "You remember … the nine indicia of slavery … yesterday. You will have to bear those in mind with respect to the elements in each charge." 35 With respect to the indicia his Honour also gave the following further directions: " … I have identified for you the essential ingredients, given you a note of them. Explained the meaning of some of those words to you in supplementary directions, and then identified for you the nine indicia of slavery upon which the case has been conducted. Now the law is that you have to be satisfied beyond reasonable doubt in respect of each complainant, in respect of each accused, that a condition of slavery existed before you could return a verdict of guilty. That does not mean to say you have to be satisfied about all of the indicia with respect to one complainant. You only need to be satisfied about one. That is because the indicia is simply the identified example of the condition the Crown says is slavery. What you have to decide in accordance with the definition that I have given you, supplemented by the directions, and the assistance that you have been given by counsel, whether or not a particular individual being a complainant was in the condition of slavery at a time during the period stated in the indictment." [Emphasis added.] 36 His Honour proceeded to summarise the evidence of each complainant, in the course of which his Honour made frequent reference to specific "indicia of slavery". 37 Subsequently his Honour returned to the issue when dealing with a particular submission of counsel for the appellants about the possibility of escape. His Honour said: "The accused said, it is possible to get out, because this key opens the glass door to the arcade. There are other opportunities to get out so the condition of slavery is not met. The Crown says that to have to escape is far too high, they were confined in these premises, to say that it is possible to get out does not mean that they are not slaves, bearing in mind only one of these indictio needs to be established. If it satisfies you indicia here being connected to the idea that they did not have passports and could not speak, did not know there way around and so forth." [Emphasis added.] 38 After retiring, the jury asked a question in the following terms: "Do all of the indicia have to be satisfied for any charge to be proved?"

The Crown submitted that the answer was "no" and counsel for the appellants agreed. 39 His Honour directed the jury further in this respect as follows: "'Do all the indicia have to be satisfied for any charged to be proved?' The answer to that is no. You have to be satisfied beyond reasonable doubt as to each of the elements of the particular charge that you are considering. They are identified in the aide memoir I have given you. If you are satisfied beyond reasonable doubt as to one or more of the indicia it is open to you, and I emphasise the word open - it is open to you to concluded that one or more of the elements has been made out beyond reasonable doubt. For example, if you are satisfied beyond reasonable doubt of the one or more of the indicia, then it is open to you to conclude that a condition of slavery existed in respect of a particular individual. Now you need to consider the definition of 'slavery' that you have been given as supplemented by directions during the summing up that is what you have to be satisfied beyond reasonable doubt. Logically, if you were satisfied about all the indicia, then being satisfied about the condition of slavery you might think would be a lot easier a conclusion to reach in your mind than being satisfied about one indicia. What I am emphasising to you … is not a checklist. Because you are able - that is, it is permitted or it is open to you - to reach a determination beyond reasonable doubt that the condition of slavery existed with respect to a particular individual, you are able to come to that conclusion on the basis of one or more indicia. But it is not a checklist that you find a majority of indicia or a third of them or one of them that means slavery. What it means is you have a fact in your mind and you say: Well we're satisfied about that, does that mean that the condition of slavery existed for our decision beyond reasonable doubt. " [Emphasis added.] 40 The jury's question - whether every one of the indicia had to be established - may well have been prompted by his Honour's characterisation of the indicia as "elements". (See at [31] and [32] above.) This was cleared up by the further directions. Nevertheless, it is indicative of the possible confusion that these passages may have left in the jury's mind as to the use to which they could put the so-called "indicia". 41 Some of the indicia were clearly established and uncontroversial or uncontested facts. Others were inferences drawn from a body of evidence, some or all of which was contested. The indicia did not have the same quality or weight in the process of inferring whether the elements of the offences - particularly 'possession' and 'use' - were established. To present such a list in an undifferentiated format and to give each of them the same label - 'indicia' - is capable of causing confusion. 42 To some degree this effect was alleviated by express directions - most relevantly a clear direction that the respective indicia may not be entitled to equal weight. Furthermore, in the passage set out at [39] above, his Honour concluded by correctly stating to the jury that, if one or more of the indicia was established, it had to ask whether, on that basis, the condition of slavery existed. 43 Nevertheless, on a number of occasions his Honour expressly instructed the jury that it was open to them to find the offence established if they were satisfied of any one of the indicia. (See [35], [37] and [39] above.) This is clearly not so and may have confused the jury. 44 If the only act of which the jury were satisfied was that the women 'did not speak English' or that 'they did not know anyone outside the brothel' or 'that they were fed, clothed and housed by' the appellants - or indeed any combination of these three - and of no other indicia, then I cannot see how the jurors could be satisfied of the physical elements of the two offences. These matters were circumstances which gave colour to other "indicia". Their significance was in establishing the circumstances in which powers in the nature of ownership - namely possession and use - came to exist. None could establish - either alone or in combination - such an element other than in combination with other facts. 45 The use of an undifferentiated list of facts, to which the same label was attached, could have distracted attention from the critical focus of identifying the powers which the accused exercised over the persons said to have been reduced to slavery. (See, eg, Wei Tang supra at [26], [33], [50] (Gleeson CJ).) 46 However, in view of the jury's question, it seems clear that it did not act on the basis that only one of the indicia would be sufficient. Accordingly, the possible confusion does not appear to have eventuated. His Honour gave clear directions that the jury had to be satisfied beyond reasonable doubt of the elements of the offence and the necessity to determine whether, what his Honour often called, "the condition of slavery" existed. 47 Counsel for the appellants at trial did not seek correction of the directions and, indeed, supported the response his Honour gave to the jury question. I would not grant leave under r 4 on this ground. 48 McCLELLAN CJ at CL: I agree with the Chief Justice 49 GROVE J: I agree with Spigelman CJ. **********

31/03/2011 - Published on 31 March 2011 - Paragraph(s) All

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CITATION: McIvor v R; Tanuchit v R [2009] NSWCCA 264 This decision has been amended. Please see the end of the judgment for a list of the amendments.

CASES CITED : R v Wei Tang [2007] VSCA 134; (2007) 16 VR 454 The Queen v Wei Tang [2008] HCA 39; (2008) 237 CLR 1

2 The trial judge directed the jury that 'intention' was the relevant fault element; however, he gave the jury three alternative ways in which such intention could be established. The jury was not directed expressly to the only type of fault that mattered, that is intention as to conduct: [25]. The Queen v Wei Tang [2008] HCA 39; (2008) 237 CLR 1, followed.

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