Legal Research
Cases
Kanbut v The The King

Kanbut v The The King

Case [2022] NSWCCA 259 5 December 2022

Criminal Liability

Miscarriage of Justice

Tendency Evidence

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Kanbut v R [2022] NSWCCA 259
Hearing dates: 31 August 2022
Date of orders: 5 December 2022
Decision date: 05 December 2022
Before: Beech-Jones CJ at CL at [1];
Adamson J at [93];
Campbell J at [94]
Decision:
(1)   Grant the applicant an extension of time for leave to appeal against conviction.
(2)   Grant the applicant leave to raise grounds 1 and 2 of her amended grounds of appeal against conviction.
(3)   Appeal allowed.
(4)   Set aside the applicant’s convictions entered on 15 November 2019.
(5)   There be a new trial.
(6)   List the proceedings for mention at the Sydney District Court in Court 3.1 at 9:30am on 27 January 2023.
(7)   Direct that no later than 6 weeks prior to the date of any retrial, the respondent notify the chamber of Beech-Jones CJ at CL of that date.

Catchwords:
CRIMINAL APPEAL – applicant convicted of four offences of sexual slavery and two offences of money laundering – Crown contended that applicant enslaved two sex workers from Thailand – alleged to have seized passports and made them work off debt – whether jury direction concerning applicant’s prior good character inadequate because jury not told that good character made it less likely that applicant committed offences charged – error not established – whether miscarriage of justice occasioned by failure of applicant’s counsel to adduce good character evidence from various witnesses – miscarriage not established – failure to adduce evidence objectively justified – applicant’s good character peripheral to true factual dispute in the trial – tendency direction – alleged tendency corresponded with every particular alleged against applicant in relation to both complainants – direction misleading – miscarriage of justice established - proviso – critical part of complainants’ evidence challenged – proviso not capable of being applied – convictions set aside – new trial ordered.

Legislation Cited:
Courts Suppression and Non-Publication Orders Act 2010 (NSW)
Crimes Act 1914 (Cth), ss 15Y, 15YAA, 15YR
Criminal Appeal Act 1912 (NSW), s 6
Criminal Code (Cth), ss 270.1, 270.3, 400.6
Evidence Act 1995 (NSW), s 97
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:
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
Kalbasiv Western Australia (2018) 264 CLR 62; [2018] HCA 7
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32
Nudd v The Queen [2006] HCA 9

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.

Continue reading Kanbut v The The King

Details

AGLC: Kanbut v The The King [2022] NSWCCA 259
Case: [2022] NSWCCA 259
Decision Date: 05 December 2022

CaseChat Overview and Summary

The applicant in this case was convicted by a jury of four counts of sexual slavery and two counts of money laundering. The Crown's case was that the applicant had enslaved two sex workers from Thailand, seizing their passports and forcing them to work off a debt. The applicant appealed against his convictions on several grounds, including the adequacy of jury directions concerning his prior good character, the failure of his counsel to adduce good character evidence, and the adequacy of a tendency direction given by the trial judge. The High Court of Australia heard the appeal and found that while some of the grounds were not established, others were.

The legal issues before the court included whether the jury direction concerning the applicant's good character was inadequate because it did not inform the jury that his good character made it less likely that he committed the offences charged. The court found that the error was not established. The court also considered whether a miscarriage of justice had occurred due to the failure of the applicant's counsel to adduce good character evidence from various witnesses. The court found that while the failure to adduce evidence was objectively justified, a miscarriage of justice had occurred due to the tendency direction given by the trial judge.

The court held that the tendency direction was misleading because it corresponded with every particular alleged against the applicant in relation to both complainants. The court found that a miscarriage of justice had been established, but the proviso could not be applied because a critical part of the complainants' evidence had been challenged. The court set aside the applicant's convictions and ordered a new trial.

The court ordered that the applicant's convictions be set aside and a new trial be ordered. The court found that the tendency direction was misleading and that a miscarriage of justice had occurred. However, the proviso could not be applied because a critical part of the complainants' evidence had been challenged. The court held that the failure to adduce good character evidence was objectively justified, and that the error in the jury direction was not established. The court's decision highlights the importance of ensuring that jury directions are clear and accurate, and that counsel provide appropriate evidence to support their client's case.

Orders