Ho v The Queen [2012] HCATrans 199

[2012] HCATrans 199

[2012] HCATrans 199

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M166 of 2011
  No M167 of 2011

B e t w e e n -

KAM TIN HO

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Melbourne   No M177 of 2011

B e t w e e n -

HO KAM HO

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

GUMMOW J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 AUGUST 2012, AT 12.10 PM

Copyright in the High Court of Australia

____________________

MR L.C. CARTER:   May it please the Court, I appear for the applicant, Kam Tin Ho, in matters M166 and M167.  (instructed by Theo Magazis & Associates)

MR C.B. BOYCE:   If the Court pleases, I appear on behalf of the applicant, Ho Kam Ho, in M177/2011.  (instructed by Slades & Parsons Solicitors)

MR S.P. DONAGHUE, SC:   If the Court pleases, I appear with MR C.W. BEALE, on behalf of the respondent in each matter.  (instructed by Director of Public Prosecutions (Cth))

GUMMOW J:   Yes, Mr Carter.  Is there any discussion between you and Mr Boyce as to a division of labour?

MR CARTER:   There is indeed, your Honour.  I propose to address orally the directions in relation to the “possession” and “use” that is ground 2.2 of 166, but not a ground in 167, to adopt in advance what Mr Boyce has to say on the - what is my ground 2.3 - the other directions point primarily to rely on what is in writing as to the unsafe point.  Your Honours, in R v Wei Tang (2008) 237 CLR 1which is behind tab 3 of the book of authorities, his Honour Justice Hayne, with the agreement of the other members of the Court, although the Chief Justice did not specifically refer to Justice Hayne’s reasons, wrote at some length about the meaning of possession and ownership. At page 57 of Justice Hayne’s reasons he posed the question at paragraph 143:

How are those abstract ideas to be given practical application?

and there is a lengthy discussion that follows, but could I take your Honours directly to paragraph 147 on page 58.  His Honour, having referred to the judgments in He Kaw Teh v The Queen (1985) 157 CLR 523, as to the ordinary meaning of possession in the criminal law said midway through the paragraph:

In considering s 270.3(1)(a) of the Code, however, it will also be important to recognise that the right to possess a subject matter, coupled with a power to carve out and dispose of subsidiary possessory rights, is an important element in that aggregation of powers over a subject matter that is commonly spoken of ‑ ‑ ‑

GUMMOW J:   You cannot translate automatically notions of possession from the common law because the common law of Australia has never contemplated one person possessing another.

MR CARTER:   Indeed, and ownership is ‑ ‑ ‑

GUMMOW J:   It might be different in the United States, but that is the position here.

MR CARTER:   The passage that I wish to emphasise, your Honours, is paragraph 148.  His Honour states:

Just as the word “ownership” evokes notions of the dominion of one person over another, to speak of one person possessing another (in the sense of having physical custody of or control over that other) connotes one person having dominion over the other.  Or to put the same point in different words –

and we would interpolate perhaps in order to give the practical content that was referred to on the previous page:

possession, like ownership, refers to a state of affairs in which there is the complete subjection of that other by the first person.

At trial in this matter defence counsel submitted to the trial judge that the written and oral directions to the jury as to the meaning of the element of possession should be consistent with what his Honour Justice Hayne said in that passage.  “Exception was taken”, as is indicated in paragraph 10 of the outline at page 342 of the book, to his Honour’s directions:

both before the direction was given –

His Honour did ultimately rule – and this is attached behind tab 2 in the additional materials, page 2345 that:

I consider that the present analysis stated on the face of Law Sheet 2 is consonant with the elements as stated in Tang –

It is submitted, your Honours, that the special leave point raised by this ground is that despite the detailed guidance given by this Court in Tang as to how trial judges are to direct upon what is clearly very difficult legislation the trial judge failed to do so and the Court of Criminal Appeal, it is respectfully submitted, erred in failing to find that that was in error. The direction that was given by the trial judge that the Court of Appeal found did not result in error is that set out at paragraph 11 of the written submissions and is set out in the relevant section of the Court’s reasons at page 294 to 295 of the book.

It was submitted in the court below and it is submitted in this Court that it is not a sufficient answer to the point to say that it was covered under ownership, which was the approach taken by the trial judge, because ownership and possession are separate notions.  Ownership is directed to whether the person was in a condition of slavery.  Possession, on the other hand, concentrates the trier of fact on whether the accused is in possession of the complaint and when exception was taken at trial by Mr Dickinson on behalf of the present applicant behind tab 2 at 2327 that was precisely what he said.  At line 28:

they’re quite different considerations because you consider ownership in the context of a slave, but then you consider possession in the context of - my client.

GUMMOW J:   What do you say about paragraphs 33 and 34, pages 297 to 298, particularly looking at paragraph 34?  One view is that the facts here are rather stronger than in Tang.

MR CARTER:   Your Honour, that section of the court’s reasons, with respect, deals with the point that Mr Boyce is going to make.

GUMMOW J:   All right.

MR CARTER:   Not that I am wanting to dodge your Honour’s question, but could I take your Honour back to the reasons concerning the possession ground at page 295.  The reasoning is paragraph 27:

the trial judge’s direction served to convey to the jury the essential idea that possession of a slave was the exercise of a power associated with ownership, and ownership meant the complete subjection of the will of one person by another.  The trial judge emphasised that the possession was that of a slave and appropriately contrasted that possession with lesser forms of control.

The contrast that was made, with respect, was with custody or control over your children –

If, at this point of the charge, the trial judge had said that possession meant complete subjection of the will of a person, he would have equated possession with ownership, a step more likely to confuse than enlighten the jury.

GUMMOW J:   Now, is paragraph 32 outside your paddock or within it?

MR CARTER:   I will come ‑ ‑ ‑

GUMMOW J:   That is where all this leads.

CRENNAN J:   Yes.

MR CARTER:   If I may, could I just finish with the possession point, your Honours, because that, with respect, the final sentence that it may have led to the jury’s conclusion, in our respectful submission, is directly at odds with what Justice Hayne stated in Tang, with the agreement of all other members of the Court. When one then looks to the passage that is identified in the footnote, footnote 6 on page 296 it is a reference to paragraph 27 of Chief Justice Gleeson’s reasons, and assuming that the reference is correct, which we must – that is at page 18 of Tang, again behind tab 3:

The reference to “chattel slavery” in the second ground of cross‑appeal is a reference to the legal capacity of an owner to treat a slave as an article of possession . . . it would be inconsistent with the considerations of purpose, context and text referred to in the preceding paragraph to read the definition as limited to that form of slavery.

So we, with respect to the Court ‑ ‑ ‑

CRENNAN J:   May I just go back for a moment to the direction complained about?

MR CARTER:   Yes, your Honour.

CRENNAN J:   We find it at page 31 of the application book.  As I understand it, the complaint is absolutely centred on the sentence that starts halfway along line 8, is that right?

MR CARTER:   Yes.

CRENNAN J:   Now, in relation to what you have mentioned about Justice Hayne’s decision, if you look up above line 8 to lines 2, 3 and 4 you will see that the context of line 8 is what is said there:

If you then say what does ownership mean, ownership includes dominion over or complete subjection of the will of a person by another.

Then, if you go down to line 16 his Honour explains the context in which he made the statement at lines 8, 9 and 10 of which you complain.  I mean, that is the context that slavery is not legal.  His Honour is coming to grips with the need to describe slavery in that context.  He says when he commences at the top of that page exactly what you are implying he did not say.

MR CARTER:   Indeed, your Honour, and we accept that, as did trial counsel but as trial counsel said, the direction in relation to ownership concentrates on the objective question put, and indeed the threshold question, of whether the complainant women were slaves, that is in a condition of slavery, whereas the element of possession is directed to the accused.  That is the point, your Honour, and that was the point that was taken at trial.  In our respectful submission, there was no risk of confusion if the jury were given the direction as – I am not suggesting for a moment that Justice Hayne was writing a model direction, but it was certainly a direction given and that is why it is not a ground in the other matter that was given by Justice Lasry at page 199 and 200 of the book.

So it is submitted, your Honours, that it did matter because on the evidence that there was not a lot of contest about the jury could well have been satisfied, contrary to our submissions, that the complainants were in a condition of slavery, and that the accused had exercised custody or control over them, but for the purposes of slavery, and I understand that his Honour goes on to say, “It is in the context of slavery” the jury, with respect, needed to be directed that the accuseds, now the applicants, had completely subjected the complainants in order to possess them.  It is submitted that this Court’s agreement with Justice Hayne’s dicta at paragraph 148 is not difficult to understand when one bears in mind that this crime carries 25 years imprisonment.

So for those reasons it is submitted that there is the prospect of success in relation to ground 2.2 and I rely on what has been put in writing as to the use point which picks up, also, the exception taken by trial counsel by reference to the dicta of his Honour Justice Hayne in Tang’s Case, particularly at page 61, paragraph 156, and as I said, I adopt in advance

what Mr Boyce has to say in answer to your Honour Justice Gummow’s questions.  If the Court pleases.

GUMMOW J:   Yes.  Mr Boyce?

MR BOYCE:   Thank you, your Honours.  Your Honours, the submissions I will make will address ground 2.3 in the applicant’s draft notice and indeed the same ground that appears in my learned friend Mr Carter’s client’s draft notice.  Your Honours, slavery is defined in the legislation as:

the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised -

and the point of distinction as to whether one case of alleged slavery gets no higher than a case of harsh and exploitative treatment or otherwise is whether “the powers attaching to the right of ownership” were exercised over a person.  The point at issue that is raised by the relevant ground is whether in this case a jury is obliged to determine, as a question of approaching a question of fact, what are the powers attaching to the right of ownership that might arise in any particular case or whether determination of these powers is more akin to a question of law, that is to say, a question relating to direction by the trial judge.  The only question of fact is whether the evidence adduced at trial is sufficient to establish the existence of these powers in the first instance.

Now, as we apprehend it, your Honours, the respondent, by its support of the directions that were given by the learned trial judge in the present case, contends for the former position whereas we, with respect, contend for the latter.  The respondent may disagree with my description of his argument but that is as we would understand it.  The applicants draw comfort from the dicta of the former Chief Justice of this Court in support of their position. That dicta is found in R v Wei Tang (2008) 237 CLR 1 at 25, paragraph 49. The case is found behind tab 3 of the applicants’ joint list of authorities and materials.

Could I take the Court, your Honours, to paragraph 49 and it is halfway through the paragraph is all that I need to read.  There the former Chief Justice, with the agreement of the other members of the Court ‑ ‑ ‑

GUMMOW J:   Some of the members of the Court.

MR BOYCE:   I am sorry, your Honour, yes – states as follows:

This is a condition ‑

that is to say, the condition of slavery –

that results from the exercise of certain powers.  Whether the powers that are exercised over a person are “any or all of the powers attaching to the right of ownership” is for a jury to decide in the light of a judge’s directions as to the nature and extent of the powers that are capable of satisfying that description.

I have extracted that part of the former Chief Justice’s observations at paragraph 3.14 of the outline of submissions.  May I pause here to submit, your Honours, that those observations must be correct, that is to say that it must be for the judge to tell the jury what the powers are that are capable of being satisfied, namely, to give to the jury a description of the powers attaching to the right of ownership that are open to be satisfied by the evidence adduced in the case and it is then for the jury to find, as a matter of fact, whether or not the evidence establishes the existence of those powers.

The reason why it must be so, it is submitted with respect, is the need to ensure, so far as is humanly possible that a decision made as to whether in any particular case the treatment of persons crosses the line from being harsh and exploitative to constituting slavery is as principled in an objective sense as it can possibly be.  Could I just take your Honours in support of that assertion again to Tang in the High Court – in this Court – and again to the former Chief Justice’s reasons at page 23, paragraph 44.

GUMMOW J:   With respect to paragraphs 44 and 49 what do you say about what Mr Donaghue puts at page 381 in his paragraphs 17 and 18 as to whether the Court of Appeal fell into error in this case?

MR BOYCE:   Yes.  If I may have a moment, your Honour?

CRENNAN J:   Mr Boyce, in that context, may I direct you to application book 297, direct you to paragraphs 33 and 34.

MR BOYCE:   Yes.

CRENNAN J:   The Court of Appeal noted that “The jury was not left at large” and then in paragraph 34 they also noted that the evidence about the way the victims lived and the way they worked was not, in general terms, in dispute and from that they go on to say:

It was not necessary for the judge to provide the jury with an exhaustive list of circumstances denoting slavery.

What do you say about that in terms of what you seek to draw from Tang and the exploitative employment aspects of the case?

MR BOYCE:   Firstly, your Honour, in my respectful submission, the factual substratum of this case was much weaker than in Tang.  Your Honours will recall Ms Tang was a principal, she had bought a share in a vast majority of the women, I think, who were the subject of the counts, four out of the five.  She had been a party to the buying and selling of them.  The role of the applicants was described by the Court below at appeal book 293, paragraph 20 in the judgment of the court below, wherein – and fairly described –

According to that evidence, the main person involved in the implementation of the arrangements, in Melbourne, was Kam.  Kam stipulated the terms of the work the women were to perform, the conditions in which they worked and their living arrangements.

He was, if I could interpolate, akin to a – so it was alleged – a minder:

Ho, who is his brother –

my client, your Honours –

played a practical role in taking the women to and from the brothels, escorting them on trips from their places of residence for shopping, and so on.  Colloquially, he was a ‘gofer’.

So if I could draw issue with what I thought was the import of an observation made to my learned friend, Mr Carter, when he was on his feet that this – by reference to paragraph 34, I think, of the Court of Appeal’s decision that this was somehow a stronger case than Tang and submit that that is, really, on reflection, it is not the case.  In my respectful submission, so far as the evidence pertaining to the applicants and in particular the applicant Ho Kam Ho is concerned, is very much at the margins.  Yes, the working conditions were as were described.

The question was, though, had either of the two applicants – to adopt what Mr Carter has put – possessed them, completely subjugated them?  Were they, in any event, in a condition of slavery, vis-à-vis the applicants, was a question that was not easy of resolution and that is why it is submitted it was important that the court tell the jury what the powers attaching to the right of ownership were that they needed to have found proved in the present case.  If I may, it is those directions that I will go at present because it is my respectful submission that in the end the Court of Appeal was incorrect in its conclusion by holding that “The jury were not left at large” because when one goes to the directions it is, in my respectful submission, patently clear that they were.

The directions were given partly orally and partly in writing and the written directions, insofar as they are relevant can be found behind tab 1, your Honours, of the applicants’ joint list of authorities and materials.  Your Honours will see behind tab 1, “Law Sheet 2”.  In Law Sheet 2 there are paragraphs 1, 2 and 3 which are descriptive of the elements and so forth, 4, an inclusive definition of ownership, 5, possession that has been dealt with, 6, intention and 7, knowledge.  Really, no issue can be taken with those apart from the issue that has already been taken by my learned friend, Mr Carter.

Paragraph 8 is the important paragraph because it is “What are the matters you look to in deciding whether the prosecution has proved the elements beyond reasonable doubt?”  One sees in paragraph 8(a) and those matters are essentially powers attaching to the right of ownership that one can derive from this Court’s decision in Tang, that is to say, insofar as one can divine them, there they are.  The question is, what were the jury told about those powers attaching to the right of ownership given that those powers are the – the finding in respect of them are the quintessential matters that divide or determine whether a case is merely harsh and exploitative treatment, or a case of slavery?  It is to the oral directions that I just need to go to very briefly if I may, your Honours. 

One finds the relevant passage at appeal book 32 at line 26.  If your Honours will accept this from me it is at this point in time where his Honour is at paragraph 8 of Law Sheet 2.  There his Honour directs the jury in the following terms.  He said to the jury:

Then what are the matters you look to in deciding whether the prosecution has proved the elements beyond reasonable doubt?  You decide what matters you are going to look to.  I am not the judge of the facts, you good people are, so you decide what matters you are going to look to.  You might find half a dozen more than this –

that is the matters that are listed in paragraph 8(a) –

you might find most of these of no use.  These are just a guide, which I hope assists you in looking at the evidence, but you decide the matters which matter, and I put some here.

Then his Honour goes through the relevant points that are listed in that list that I took your Honours to earlier, saying “You can look at this or you could look at that, but in the end it is a matter for you what the powers are that attach to the right of ownership”, that is, it is a matter for ‑ ‑ ‑

CRENNAN J:   In the context the living conditions were, generally speaking, not in dispute.

MR BOYCE:   Yes, that is true but in the end the question is – it is a question for the jury.  Can I answer your Honour this way?  One might have thought that this was a fairly strong case of debt bondage, this case.  Now, debt bondage is not slavery.  Debt bondage is different to slavery, there may be an overlap but there is not necessarily an overlap.  In the end ‑ ‑ ‑

GUMMOW J:   Debt bondage cases may also be slavery cases.

MR BOYCE:   They may be, but they may not be.  Debt bondage is the promise of personal security for a debt in circumstances where the debt is either manifestly excessive or where the rate of payment to pay off the debt is not considered reasonable.

GUMMOW J:   In the United States they used to call ‑ ‑ ‑

MR BOYCE:   Yes, your Honour.  But, the point is this, is in the end the jury, in my respectful submission, expressly by the judge were left at large to make a decision about what they thought the powers attaching to the right of ownership were and in circumstances where the bright line that distinguishes between slavery and harsh and exploitative treatment are those powers where the Court in Tang took time to list what the powers are, and where the former Chief Justice said the judge should direct the jury about what those powers are and then the jury’s task is to find whether, as a matter of fact, they are proven simply did not do so in this case.  I think I understand the import of your Honour Justice Crennan’s question, what difference would it make on the facts, given the women’s living conditions?  The answer to it is ‑ ‑ ‑

CRENNAN J:   No, I am not saying what difference would it make on the facts, I am pointing to the high level of agreement about the living conditions in the context of the allegation that the jury was left at large.

MR BOYCE:   Yes, that is right and the jury were left at large as to the test, as to the element, if you like, that they needed to apply, is my submission.  The defence case, essentially, was to go to the jury and say, by and large we agree with all of this, but it is not slavery, it is just not.  You would banalise or debase the concept if you were to accept that beyond reasonable doubt, hence the need for a principled distinction between the two states and it not being left simply up to the jury to use or discard as they want what are the touchstones between the two, what is criminal and what is not.

So, when my learned friend submits that, as I take him to be submitting, that the directions were quite in accordance with Tang and that it is in the end a value judgment, if you like, made by the jury as to whether slavery exists or otherwise, I think we agree with him but to a point.  It is not a value judgment untrammelled by principle and yet in this – in other words the jury are simply to ask themselves what is the touchstone between harsh and exploitative treatment and slavery on the other hand.  So, we agree with my learned friend. 

We say, yes, of course he is right, it is a value judgment but not a value judgment free of principled direction and in circumstances where the evidence in this case, I would submit, is a lot weaker insofar as these applicants were concerned than in Tang, and in circumstances where the defence really pretty much accepts all the evidence.  It is not slavery.

CRENNAN J:   At 2231 of the transcript, page 33 of the application book his Honour there at lines 11 to 15 deals with the point which you are raising, that is to say, that:

You look to the exercise of powers of control over movement of the person, which clearly extended beyond exploitative employment.

MR BOYCE:   He says you can look at that.  You can look to that.  The capacity to deal with a person from what he had said earlier you can – he is reading from the sheet, your Honour, and he had said ‑ ‑ ‑

CRENNAN J:   But his Honour is making it clear to the jury that there is a distinction to be made between exploitative employment and conditions which go beyond that.

MR BOYCE:   Yes, but ‑ ‑ ‑

CRENNAN J:   It is just that I understood from your submissions that you seem to be suggesting that the distinction had not been drawn out in the directions.

MR BOYCE:   It had not because the judge had told the jury that if they wished to they could discard those subparagraphs.  Insofar as he did move into exploitative conduct of course his Honour – the distinction between slavery and exploitative conduct - his Honour sought to dramatise that by means of an example and we have this smoko example at line 16 wherein – I do not want to do his Honour a disservice but in effect his Honour has said, look a case of not being able to go out for a smoko, “You’re not going out, stay by the phone and answer the phone.” - that is not slavery and it was that ‑ ‑ ‑

CRENNAN J:   I notice at 23 and 24 his Honour again repeats that there is a relevant distinction to be made.

MR BOYCE:   Yes.  There is a relevant distinction, but it is a distinction – the point – the only way you can, it is submitted with respect, usefully or, how can I put it, in a principled fashion make that distinction is by use of the powers attaching to the right of ownership, by looking at those powers and saying, “I’m guided by those powers.  Do those powers exist in the instant case?”  Could I, just before my time expires, take the Court – I was going to take the Court to paragraph 44 of the former Chief Justice’s reasons in Tang.  This may answer, I hope, your Honour Justice Crennan’s question perhaps more lucidly than I have attempted to do so so far.

GUMMOW J:   Paragraph 44?

MR BOYCE:   Paragraph 44, page 23 of the Tang in the High Court, your Honours.  At paragraph 44 his Honour said this – and remembering, of course, that the Court was dealing with the issue of the Court of Appeal in that case’s judgment as to what the state of mind had to be.  His Honour said this:

It seems likely that the Court of Appeal was, with good reason, concerned about a problem presented by s 270.3(1)(a), at least in a borderline case: how is a jury to distinguish between slavery, on the one hand, and harsh and exploitative conditions of labour ‑ ‑ ‑

GUMMOW J:   We can read paragraph 44 to ourselves, Mr Boyce.

MR BOYCE:   Thank you, your Honour.  I will allow you to read it.  I do not mean any disrespect.

GUMMOW J:   The sentence:

In particular, a capacity to deal with a complainant as a commodity . . . So also may the exercise of powers of control over movement –

et cetera.

MR BOYCE:   That is right.  They are the ‑ ‑ ‑

GUMMOW J:   Chief Justice Gleeson was across all these questions, but it does not necessarily dictate any result in your favour.

MR BOYCE:   What his Honour the former Chief Justice was observing, in my respectful submission, was the difficult question ‑ ‑ ‑

GUMMOW J:   Of course it is a difficult question.  The question is whether there was the relevant error in the Court of Appeal in not picking up what you say is an error.

MR BOYCE:   Precisely.

GUMMOW J:   No good saying it is difficult.  Of course it is that is not the point.

MR BOYCE:   But it is made a lot easier for the jury if they have the touchstones with which to make that decision.  That is the point, your Honours, thank you.

GUMMOW J:   We do not need to call on you, Mr Donaghue. 

The reasons of the Court of Appeal, in particular at paragraphs 33 and 34, were correct.  The reasons were free of the alleged errors upon which the applicants rely in their several submissions.  In each application special leave is refused.

We will adjourn to reconstitute and when we come back we will return to application No 4.

AT 12.47 PM THE MATTERS WERE CONCLUDED