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Court of Criminal Appeal 5 December 2022

Kanbut v R

[2022] NSWCCA 259

Sexual offencesFraud & dishonesty
CRIMINAL APPEAL ERROR NOT ESTABLISHED MISCARRIAGE NOT ESTABLISHED TENDENCY DIRECTION DIRECTION MISLEADING MISCARRIAGE OF JUSTICE ESTABLISHED

Citation: Kanbut v R [2022] NSWCCA 259
Court: NSW Court of Criminal Appeal
Date: 5 December 2022
Judges: Beech-Jones CJ at CL; Adamson J; Campbell J

Background

The applicant was convicted after trial of four offences of sexual slavery under the Criminal Code (Cth) and two money laundering offences. The convictions related to two Thai nationals, referred to as X and Y, who had entered Australia on tourist visas in 2004 and 2005 respectively. The Crown alleged that the applicant collected the women on arrival, took their passports, told them they each owed a debt of $45,000 to be repaid by working in brothels, and kept them under her control until the debt was discharged.

The applicant's defence was that she provided accommodation only, and did not coerce or control the women. There was no dispute that the women lived with the applicant and worked in brothels for a period. The contested question was whether the applicant exercised power and control over them.

The applicant received a substantial custodial sentence. She sought leave to appeal against both her convictions and her sentence, with the conviction appeal raising issues about good character directions, the conduct of her trial counsel, and a tendency direction given to the jury concerning the evidence of the two complainants.

  • Whether the trial judge's good character direction was inadequate because it did not tell the jury that good character made it less likely the applicant committed the offences charged.
  • Whether trial counsel's failure to adduce good character evidence from witnesses at trial occasioned a miscarriage of justice.
  • Whether the tendency direction given to the jury was misleading and occasioned a miscarriage of justice.
  • Whether the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) could be applied to preserve the convictions despite any error found.

Decision

Good character direction: The Court held that while it would have been preferable for the direction to include an explicit statement that good character makes it unlikely the accused committed the offence, there is no rule requiring that precise formulation. Trial counsel's failure to raise any complaint about the direction when it was given strongly indicated that no prejudicial error had occurred. The applicant's undisputed conduct in assisting the complainants to enter Australia and work in brothels was itself inconsistent with a person of good character, making the direction's limitations peripheral to the real factual contest.

Failure to adduce character evidence: The character evidence from friends and associates, which was eventually tendered at the sentencing hearing, would not have assisted the jury on the central issue of control and coercion. Much of it was inconsistent with undisputed facts. The Court found an objectively reasonable explanation for not calling the evidence: it was unlikely to help and may have harmed the defence. No miscarriage of justice arose from this omission.

Tendency direction: The tendency direction was the ground that determined the appeal. The direction grouped together alleged conduct against both complainants and identified the tendency using language that corresponded exactly to each particular of the charged offences. This was fundamentally misconceived. The purpose of a tendency direction in this context was to allow the jury to use acceptance of one complainant's evidence as support for the other's. Instead, the direction told the jury that if none of the acts described in it occurred, they should put aside tendency reasoning, when in fact those same acts constituted the charges themselves. The direction wrongly implied that the tendency evidence was separate from the allegations in the indictment, creating a real possibility that it affected the jury's assessment of the complainants.

The proviso: The Court declined to apply the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW), which allows a court to dismiss an appeal despite established error where no substantial miscarriage of justice actually occurred. Because much of the complainants' evidence on coercion and control was uncorroborated and their credibility had been directly challenged at trial, an appellate court could not rely on the jury's verdict to overcome the limitations on its own assessment of witness credibility in light of the misdirection. The convictions were set aside and new trials ordered.

Orders Made

  • Extension of time granted to apply for leave to appeal against conviction.
  • Leave granted to raise grounds 1 and 2 of the amended grounds of appeal against conviction.
  • Appeal allowed.
  • Convictions entered on 15 November 2019 set aside.
  • New trial ordered.
  • Proceedings listed for mention at the Sydney District Court on 27 January 2023.
  • The respondent directed to notify the chambers of Beech-Jones CJ at CL no later than six weeks before any retrial date.

Key Takeaways

  • A good character direction does not require the precise formulation that good character makes it unlikely the accused committed the offence charged, provided the direction is adequate in the context of the trial as a whole.
  • Where undisputed facts are themselves inconsistent with the accused's claimed good character, the absence of a more favourable direction is unlikely to occasion a miscarriage of justice.
  • A tendency direction that describes the alleged tendency using language identical to the particulars of the charged offences is misleading: it conflates the tendency reasoning with the very allegations the jury must determine, rather than allowing evidence of one complainant to support the credibility of the other.
  • Under the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW), a conviction cannot be preserved where the complainants' credibility on the central issue was actively disputed at trial and the jury's assessment of that credibility may have been affected by the error identified.
  • Failure by trial counsel to call character evidence does not automatically constitute a miscarriage of justice: the Court of Criminal Appeal will assess whether a reasonable explanation for the omission existed and whether the evidence would have materially assisted the defence.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), ss 270.1, 270.3, 400.6
- Criminal Appeal Act 1912 (NSW), s 6
- Evidence Act 1995 (NSW), s 97
- Crimes Act 1914 (Cth), ss 15Y, 15YAA, 15YR
- Courts Suppression and Non-Publication Orders Act 2010 (NSW)

Cases:
- Addo v R [2022] NSWCCA 141
- AK v R [2022] NSWCCA 175
- Ali v R [2005] HCA 8; (2005) 214 ALR 1
- Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46
- Cox v R [2022] NSWCCA 66
- De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
- Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 95 ALJR 894
- Hofer v The Queen [2021] HCA 36; (2021) 395 ALR 1
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
- Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32
- R v Tang (2008) 237 CLR 1; [2008] HCA 39
- Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81