Citation: McIvor v R; Tanuchit v R [2009] NSWCCA 264
Court: New South Wales Court of Criminal Appeal
Date: 28 October 2009
Judge(s): Spigelman CJ; McClellan CJ at CL; Grove J
Background
The two appellants, a married couple who owned and co-managed a brothel in Sydney, were convicted by a jury on ten counts under s 270.3(1)(a) of the Criminal Code (Cth). Five counts related to intentionally possessing a slave, and five counts to intentionally exercising a power attaching to the right of ownership over a slave, specifically the power to use. The charges arose from the appellants' conduct toward six Thai nationals working at the brothel.
The Crown put its case by reference to nine "indicia of slavery," a list of factual circumstances derived from the evidence. These included that the complainants lived in locked premises, could not leave unaccompanied, did not speak English, knew no one outside the brothel, had their daily lives controlled by the appellants, and were encouraged to fear immigration authorities.
The jury convicted on the counts relating to five of the six complainants. The appellants challenged the trial judge's directions on two grounds: how the jury was directed to approach the fault element (intention), and how it was directed to use the nine indicia when determining the physical elements of the offences.
Legal Issues
- Whether the trial judge erred in directing the jury on the fault element of intention for offences under s 270.3(1)(a) of the Criminal Code (Cth), specifically by presenting three alternative types of intention rather than directing the jury only to intention as to conduct.
- Whether the trial judge's directions on the "indicia of slavery" were incorrect or confusing, in particular by suggesting that any single indicium, taken alone, could be sufficient to establish the physical elements of the offences.
Decision
Fault element: intention as to conduct
The Court held that the physical elements of "possession" and "use" in s 270.3(1)(a) are properly characterised as "conduct," and the applicable default fault element under s 5.2(1) of the Criminal Code (Cth) is therefore intention as to conduct. The trial judge did direct the jury that intention was the relevant fault element, but he offered three alternative modes by which intention could be established, without expressly directing the jury to intention as to conduct as the only relevant type. This followed the Victorian Court of Appeal's decision in R v Wei Tang, which the High Court subsequently overruled in The Queen v Wei Tang (2008) 237 CLR 1.
Because all parties at trial had agreed the judge should follow the Victorian Court of Appeal's approach, no objection was raised to the directions at the time. The Court of Criminal Appeal nevertheless found this constituted a significant miscarriage of justice, warranting a grant of leave under r 4 of the Criminal Appeal Rules and requiring the convictions to be quashed.
Indicia of slavery
The Court identified a potential problem in the trial judge's directions on the nine indicia. On several occasions, the judge told the jury it was open to find the offence established if satisfied of any one indicium. The Court found this was plainly incorrect: most of the indicia were incapable of constituting slavery on their own, and could only be relevant as part of a broader factual picture directed at establishing whether powers in the nature of ownership were exercised.
However, the Court declined to grant leave on this ground. The jury had itself asked whether all nine indicia needed to be established, and the trial judge gave a clear response directing the jury to determine whether the condition of slavery existed and to be satisfied beyond reasonable doubt of each element. This indicated the jury had not in fact acted on the basis that a single indicium sufficed. Leave was also refused on this ground because trial counsel had not sought correction of the directions and had, in fact, supported the trial judge's response to the jury's question.
Orders Made
- Leave granted to rely on Ground Two of the Notice of Appeal for purposes of r 4 of the Criminal Appeal Rules.
- Appeal allowed.
- Convictions of both appellants quashed.
- New trial ordered.
Key Takeaways
- Under s 270.3(1)(a) of the Criminal Code (Cth), the physical elements of "possession" and "use" are conduct elements, and the applicable fault element is intention as to conduct under s 5.2(1). Directing a jury on alternative forms of intention without expressly identifying intention as to conduct as the operative type is a misdirection.
- The Court of Criminal Appeal confirmed that misdirections adopted by agreement of all parties at trial, based on authority subsequently overruled by the High Court, can still constitute a significant miscarriage of justice sufficient to ground an appeal under the Criminal Appeal Rules.
- Indicia of slavery do not operate as standalone elements of the offence. Most are relevant only as circumstances contributing to a broader determination of whether powers attaching to the right of ownership were exercised, not as individually sufficient proof of any physical element.
- Where the jury's conduct during deliberations (including questions asked of the trial judge) indicates it did not in fact act on a potentially confusing direction, the Court may decline to grant leave to raise that direction on appeal.
- Following The Queen v Wei Tang (2008) 237 CLR 1, the critical focus in slavery offences is on identifying the specific powers the accused exercised over the persons alleged to have been subjected to slavery, rather than cataloguing a list of factual circumstances under a single undifferentiated label.
Legislation and Cases Referenced
Legislation
- Criminal Code (Cth), ss 5.2(1), 270.1, 270.3(1)(a)
- Criminal Appeal Rules (NSW), r 4
Cases
- The Queen v Wei Tang [2008] HCA 39; (2008) 237 CLR 1 (followed)
- R v Wei Tang [2007] VSCA 134; (2007) 16 VR 454 (overruled by the High Court; trial judge had directed the jury in accordance with this decision)