Kanbut v The The King

[2022] NSWCCA 259

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; (2006) 80 ALJR 614

R v Hart [2002] NSWCCA 313; (2002) 131 A Crim R 609

R v Murphy (1985) 4 NSWLR 42

R v RJC (Court of Criminal Appeal (NSW), 18 August 1998, unrep)

R v Robinson [1999] NSWCCA 172

R v Soto-Sanchez [2002] NSWCCA 160; (2002) 129 A Crim R 279

R v Tang (2008) 237 CLR 1; [2008] HCA 39

R v Tang (2009) 23 VR 332; [2009] VSCA 182

Rogerson v R; McNamara v R [2021] NSWCCA 160

Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25

TKWJ v R (2002) 212 CLR 124; [2002] HCA 46

Totaan v R [2022] NSWCCA 75; (2022) 400 ALR 578

Weissv The Queen (2005) 224 CLR 300; [2005] HCA 81

Texts Cited:

Court of Criminal Appeal Practice Note SC CCA 1

Category:

Principal judgment

Parties:

Rungnapha Kanbut (Applicant)
Rex (Respondent)

Representation:

Counsel:
Mr D Barrow (Applicant)
Ms S Callan SC; Ms G Westgarth (Respondent)

Solicitors:
Blair Criminal Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2017/191697

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2019] NSWDC 931

Date of Decision:

15 November 2019

Before:

N Williams DCJ

File Number(s):

2017/191697

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was found guilty after a trial of four slavery offences under s 270.3(1) of the Criminal Code (Cth) (the Code) and two money laundering offence. Two of the slavery offences and a money laundering offence concerned one complainant, X, and the remaining offences concerned another complainant, Y. The applicant was sentenced to a substantial custodial sentence.

Each of X and Y were Thai nationals who entered Australia on tourist visas on 20 November 2004 and 21 March 2005, respectively. There was no dispute that they both lived with the applicant and worked in brothels for a few months after their entry into Australia. The Crown contended that both X and Y were recruited overseas to perform sex work in Australia and that, once they arrived in Australia, they were collected by the applicant who took their passports, informed them that they owed her a debt of $45,000 which could be discharged by working in brothels and that they were made to live with the applicant under her control until the debt was repaid. The essence of the defence case was that the applicant only provided accommodation for X and Y at her home but did not coerce them to perform sex work or otherwise control them,

After the Crown case closed, the applicant’s trial counsel advised the trial judge that he had neglected to raise the applicant’s good character. This was resolved by the Crown conceding that she did not have any prior convictions. The trial judge directed the jury that “[t]he fact that the accused has no criminal convictions is of some relevance to the likelihood of her committing those other offences.” The direction did not include a statement such as that which appears in the Criminal Trials Bench Book, to the effect that a person’s good character makes it unlikely that they would have committed the offence. No complaint was made by the applicant’s trial counsel to the good character direction when it was given.

At the sentence hearing, the applicant adduced evidence of her good character in the form of statements from friends and the like. This was not adduced at the applicant’s trial.

The jury were given a tendency direction in relation to the evidence of X and Y. The direction identified the alleged tendency in terms that corresponded to every particular of the conduct of the applicant said to satisfy the definition of slavery and the four offences under s 270.3(1)(a) of the Code in relation to both complainants and no other conduct. It grouped the various particulars of conduct together in relation to both complainants. For example, the direction noted that there was evidence that “the accused required [X] and [Y] to work at various brothels for long hours on most days of the week” and that this could show the “accused ha[d] a tendency to act in a particular way, namely… to require [X] and [Y] to work at various brothels in Sydney for long hours on most days of the week”. This was followed by a statement that “[i]f you find that none of the acts occurred then you must put aside any suggestion that the accused had the tendency advanced by the Crown.”

The applicant sought leave to appeal from her conviction pursuant to s 5 of the Criminal Appeal Act 1912 (NSW) on a number of grounds: first, that the good character directions were erroneous and occasioned a miscarriage of justice (ground 1(a)); second, that the applicant’s trial counsel’s failure to adduce good character evidence at the trial occasioned a miscarriage of justice (ground 1(b)), third, that the tendency directions were erroneous and occasioned a miscarriage of justice (ground 2). The applicant also sought leave to appeal against her sentence on a number of grounds.

The Court held (Beech-Jones CJ at CL, Adamson and Campbell JJ agreeing) allowing the appeal and ordering a new trial:

1. Whilst it would have been preferable for the good character direction to have included a statement to the effect that a person’s good character can be taken into account by reasoning that such a person is unlikely to have committed the offence charged, there is no requirement that mandates that this form of wording must be used: [37] (Beech-Jones CJ at CL); [93] (Adamson J); [94] (Campbell J).

   (2)   The applicant’s trial counsel’s failure to raise a complaint when the direction was given was a strong indicator that nothing prejudicial to a fair trial occurred. There was no doubt that the applicant was involved in assisting X and Y to enter the country and work in brothels. The real issue at trial was whether the applicant exercised control over them or forced them to work in brothels. Her undisputed conduct was inconsistent with a person of good character. No miscarriage of justice was occasioned by the manner in which the good character direction was given: [40] (Beech-Jones CJ at CL); [93] (Adamson J); [94] (Campbell J).

   De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 considered; Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 95 ALJR 894 considered; Cox v R [2022] NSWCCA 66 considered.

   (3)   The character evidence which was not adduced at trial would not have assisted the jury in determining the key issue in the case, namely, whether the applicant exercised control over X and Y. Much of the character evidence was inconsistent with undisputed facts in the case which were to the effect that the applicant assisted sex workers to travel to Australia and work in brothels. Objectively considered there was a reasonable explanation for the failure to adduce the character evidence from witnesses in that the evidence was likely to be of little assistance and may have positively harmed the applicant’s defence. No miscarriage of justice was occasioned by the failure to adduce the evidence: [56]-[57] (Beech-Jones CJ at CL); [93] (Adamson J); [94] (Campbell J).

   AK v R [2022] NSWCCA 175 applied.

2. The tendency direction grouped together the alleged conduct against both complainants and failed to achieve its purpose, which was, to allow the jury to use its acceptance of the evidence of one complainant as support for its acceptance of the other: [65] (Beech-Jones CJ at CL); [93] (Adamson J); [94] (Campbell J).

3. The tendency direction was misleading. The conduct said to give rise to the tendency was the exact same conduct which constituted the charge. If the jury could not find any of the acts in the tendency direction occurred, they would not just dismiss tendency reasoning, but would necessarily be required to find the applicant not guilty. The tendency direction wrongly told the jury that the evidence relied on for tendency reasoning was separate from the specific allegations in the indictment. There is a very real possibility that the misleading nature of the direction affected the jury’s acceptance of the complainants’ evidence: [68], [71] and [76] (Beech-Jones CJ at CL); [93] (Adamson J); [94] (Campbell J).

   Addo v R [2022] NSWCCA 141 discussed.

4. The “proviso” to s 6(1) of the Criminal Appeal Act 1912 (NSW) could not be applied. Much of the complainants’ evidence on the topic of coercion and control was not corroborated and their credibility was challenged at trial. No reliance can be placed on the jury’s verdict as overcoming an appellate court’s limitations on the assessment of credibility in light of the error found: [86] (Beech-Jones CJ at CL); [93] (Adamson J); [94] (Campbell J).

   Weissv The Queen (2005) 224 CLR 300; [2005] HCA 81; Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7; Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46 applied; Hofer v The Queen [2021] HCA 36; (2021) 395 ALJR 1 distinguished.

5. Given the result of the conviction appeal, it would not be appropriate to address the grounds of appeal relating to sentence: [89] (Beech-Jones CJ at CL); [93] (Adamson J); [94] (Campbell J).

JUDGMENT

1. BEECH-JONES CJ at CL: This is an application for leave to appeal against convictions for four slavery related offences and two money laundering offences under the Criminal Code (Cth) (“the Code”). The applicant, Rungnapha Kanbut, also seeks leave to appeal against the substantial custodial sentences that were imposed after she was convicted.

2. Although these applications have been brought late, I propose that, given the strength of the conviction appeal, the applicant be granted an extension of time. I also propose that the appeal against conviction be allowed because a flawed tendency direction was given to the jury in relation to the evidence of the two complainants the subject of the slavery offences in circumstances where their evidence was critical to the Crown case.

Background

3. Section 270.1 of the Code defines slavery as 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”. Section 270.3(1) provides that:

“A person who, whether within or outside Australia, intentionally:

(aa)   reduces a person to slavery; or

(a)   possesses a slave or exercises over a slave any of the other powers attaching to the right of ownership; or

(b)   engages in slave trading; or

(c)   enters into any commercial transaction involving a slave; or

(d)   exercises control or direction over, or provides finance for:

(i)   any act of slave trading; or

(ii)   any commercial transaction involving a slave;

commits an offence.”

The maximum penalty for an offence under this provision is 25 years’ imprisonment.

4. Section 15YR of the Crimes Act 1914 (Cth) prohibits the publication of any matter that would identify a “vulnerable adult complainant” or is likely to lead to their identification, where “vulnerable adult complainant” includes an adult who is or is alleged to be the victim of an offence under s 270 of the Code (s 15YAA(1); s 15Y(2)). Although it seems unnecessary in light of those provisions, orders were made by the District Court under the Court Suppression and Non-publication Orders Act 2010 (NSW) prohibiting the publication of any matter that would identify the alleged victims of the slavery offences. They will be referred to as “X” and “Y”.

5. On 9 April 2019, the applicant was arraigned before N Williams DCJ and a jury panel in the District Court on an indictment that contained six counts. Count 1 charged the applicant with an offence of “intentionally possess[ing] a slave”, namely X, between about 20 November 2004 and about 15 May 2005. Count 2 charged the applicant with an offence of “intentionally exercis[ing] over a slave, namely [X], a power attaching to the right of ownership namely, the power to use” in the same period. Count 3 charged the applicant with an offence of deal[ing] with money or other property believed to be the proceeds of crime to the value of $10,000 or more contrary to s 400.6(1) of the Code during the same period. Both counts 1 and 2 charged the applicant with an offence under s 270.3(1)(a) of the Code referable to the same time period and same victim, although, as explained below, in some respects the conduct referable to each count was different. Counts 4 to 6 were in the same terms as counts 1 to 3 but they related to a different complainant, namely Y, and were referable to the time period between “about 22 March 2005 and about 15 July 2005”.

6. The applicant pleaded not guilty to all counts. The trial proceeded. On 15 May 2019, the jury returned verdicts of guilty on all charges. The applicant was taken into custody on that day. On 15 November 2019, the applicant was sentenced. For each of counts 1 and 4, she was sentenced to imprisonment for 4 years and 6 months with a non-parole period of 2 years, 8 months and 14 days. For each of counts 2 and 5, she was sentenced to imprisonment for 7 years and 6 months with a non-parole period of 4 years and 6 months. For each of counts 3 and 6, the applicant was sentenced to imprisonment for 1 year and 6 months with a non-parole period of 10 months and 25 days. Her Honour fixed an overall effective sentence of 8 years, 2 months and 30 days commencing on 15 May 2019 and expiring on 13 August 2027 with a single non-parole period of 5 years, 2 months and 30 days. Subject to any intervention by this Court, the applicant will be eligible for release on parole on 13 August 2024.

The Crown Case

7. Each of X and Y were Thai nationals. X entered Australia on a tourist visa on 20 November 2004. Y entered Australia on a tourist visa on 21 March 2005. It was not in dispute that in the immediate months after their entry, they lived with the applicant and worked as sex workers in brothels.

8. Each of X and Y said that they were recruited overseas to travel to Australia and perform sex work. The Crown contended that, on their arrival, they were collected by the applicant who took their passports and told them they were required to pay her a debt of $45,000 which they could discharge by working in brothels and that they had to live with her and her family and under her control until the debt was discharged. With counts 1 and 4, the Crown case was focussed on the control exercised by the applicant over X and Y while they repaid the “debt” imposed on them, specifically the removal of their passports and seizing their earnings until that debt was paid. With counts 2 and 5, the Crown case concerned the applicant’s “use” of X and Y by putting them to work as sex workers in brothels. This delineation in the conduct the subject of each count was said to reflect the difference between possessing a slave and the “use” of a slave, being the exercise over a slave of another power attaching to the right of ownership (see R v Tang (2008) 237 CLR 1; [2008] HCA 39 at [143] to [146] per Hayne J and R v Tang (2009) 23 VR 332; [2009] VSCA 182 at [33] and [73] per Maxwell P, Buchanan and Vincent JJA). Counts 3 and 6 concerned the money that the applicant received from X and Y.

9. Although it will be necessary to address the defence case in more detail shortly, at this point it suffices to state that the defence case at trial was that X and Y lived with the applicant as though it was a “boarding house” while they freely pursued sex work. Overall, the defence case was that the test of whether X and Y were slaves was not established in that they were not the subject of coercion or control by the applicant. To that end, and as I will explain further, there was a substantial challenge to so much of X and Y’s evidence that was relied on by the Crown to demonstrate that they were the applicant’s slaves, such as whether the applicant told X and Y that they owed her a debt of $45,000 or had any “say on where [they] went to work and when [they] worked”.

The Evidence

10. In light of the Crown’s reliance on the “proviso” to s 6(1) of the Criminal Appeal Act 1912 (NSW), it is necessary to say something further about the evidence adduced in support of the Crown case and what was put in issue by the applicant.

11. In her evidence‑in‑chief, X said that she was recruited and blackmailed to come to Australia in Thailand by a Mr Chang who took photographs of her naked and threatened to publish them on the internet if she did not agree. X said that Mr Chang took her to the airport in Thailand although her then boyfriend Christopher Brayne met her at the airport when she left. X said that Mr Chang told her that in Australia she would be met by a woman named “Rung” and she would have to live with her. X said that she entered Australia accompanied by a Thai man whom she had never met before and who pretended to be her partner. This man passed her onto the applicant and her husband whom X met at “Paddy’s market” on the day after her arrival. They took her to the applicant’s unit in Burwood. X said that the applicant told her she was required to pay down a debt of $45,000 with the repayments to be recorded on a ledger until the debt was paid. X said the applicant retained her passport and told her it would be returned when the debt was paid. X said that the applicant provided her with a telephone, lubricant, condoms, food and a sim card for a phone.

10. X said that she was driven by the applicant’s partner to work at brothels in Enfield, Homebush, Marrickville, Five Dock and Granville. She worked 12 hours a day, seven days a week. At the end of each day, she would be given cash which she handed to the applicant. X estimated that she earned between $600 and $800 per day. X described being physically threatened by the applicant if she ran away and being reminded by the applicant of the naked photos that could be published. X said that the applicant told her to make a false application for a protection visa and assisted her in doing so.

11. X said she finished working for the applicant in May 2005 and retrieved her passport. After that, she stayed in Australia and continued working as a sex worker. X said that, during the time she was working to pay off her “debt”, she started a relationship with a client, Christian Gillard. X said she told him about the debt. After the debt was paid off, she lived with him for four months.

12. The supplementary submissions lodged on behalf of the applicant in response to the Crown’s reliance on the “proviso” noted the various aspects of X’s evidence that was challenged. In particular, it was put to X that she shared a bedroom with the applicant’s daughter, that the applicant never told her she owed a debt of $45,000, that she did not pay off any debt to the applicant and no ledger was kept, that she only paid rent to the applicant and lived as part of the applicant’s family, that the applicant never provided condoms, lubricant or told her what brothel to work in, that the applicant had never warned her about raids by the Department of Immigration, that the applicant did not retain her passport, that the applicant had helped her send money to her family, that the applicant never threatened X with violence if she ran away and that the applicant did not help her apply for an Australian visa. All of these matters were denied by X.

13. The cross‑examination of X on behalf of the applicant did not, however, dispute that X was a sex worker who was recruited or even coerced by Mr Chang to come to Australia to undertake sex work. The cross‑examination also did not dispute that X met the applicant and her partner at “Paddy’s market” (although there was a dispute whether the applicant’s niece was also present). As for X’s evidence that the applicant’s partner drove her to the brothels she worked at, it was not expressly put to her that her evidence was wrong although it was put to X that he “occasionally gave you a lift and dropped you off at various places, or would pick you up on the corner of various roads to bring you home”, a proposition she accepted. As for any knowledge on the applicant’s part that X was engaged in sex work, it was suggested to X that she never spoke to the applicant about that topic. X was also asked:

“Q.   You will appreciate that I'm putting to you that the lady you lived with had little interest or control of what you did when you left the house as far as work was concerned.

A.   INTERPRETER: Not true.”

16. The Crown read a statement from Mr Brayne. He is a British national who commenced a relationship with X in Thailand after meeting her at a massage parlour in Bangkok. He confirmed that he saw X as she left for Australia and later came to visit her in Sydney in May 2005. He met the applicant and her partner. He did not recount any complaints by X about the conditions under which she worked.

17. The Crown also called Mr Gillard who confirmed that he met X at a brothel in Australia in April 2005 and commenced a relationship with her. He said that one night he collected her and the applicant’s daughter from the applicant’s home in Strathfield and took them out for the evening. He said that, at some point, X left the applicant’s home and started living with him. He said that X told him that she believed that someone was stealing her belongings. Mr Gillard said that X told him that she paid $700 a week to live with the applicant which was the “cost of a debt” of $50,000.00 and that “ultimately things would happen” if she did not work off the debt. He said the relationship with X ended in February 2006 and he spoke to the Australian Federal Police (“AFP”) in 2008. Mr Gillard was cross‑examined to the effect that, leaving aside what he was told by X, he did not discern anything about her interaction with the applicant or her family to suggest that X was being coerced or controlled. For example, he agreed that he went to the applicant’s home on a number of occasions and to his observation, X was “pretty relaxed” around the applicant and her family.

18. In her evidence, Y said that she had worked as a sex worker in Malaysia, Hong Kong and briefly in Singapore. She had attempted to travel to England but was refused entry and was later apprehended in Holland and deported to Thailand. Y said that in February 2005 she met Mr Chang as she wanted to travel to Australia. She said that he seized her passport and took naked photographs of her. Y said she travelled to Australia by herself dressed like a “business girl”. Y then described dealing with two intermediaries on her arrival. At one point, she was taken to a hotel in Glebe and told by Mr Chang that someone would meet her the following day. The following day, she met the applicant and her husband at the hotel who took her to their home.

19. Y said that she went and lived with the applicant, her family and X in Strathfield. Similar to X, Y described the applicant telling her that she had to pay off a debt of $45,000 and that the applicant took her passport which was only to be returned once the debt was paid off. Y said she was driven by the applicant’s husband to work in various brothels and that she would provide her earnings each day to the applicant while retaining tips. After the “debt” was repaid, she moved out. Other than undertaking a trip to see her mother in Thailand who was ill, she continued undertaking sex work in Australia until she was apprehended working in a brothel in August 2010. She was deported to Thailand but returned to Australia after agreeing to speak to the AFP about the applicant. She stayed in Australia until around 2018 when she married an Australian man and moved to Singapore.

20. In cross examination it was put to Y that there was no discussion with the applicant about any debt being owed but instead they only discussed rent being paid, that the applicant never asked for, or received, her passport, that the applicant never provided her with condoms or lubricant, that the applicant never introduced her to any brothel owner but that was instead arranged by Mr Chang, that the applicant never told Y that if she was caught by the Department of Immigration that she should say that she did not have a “boss”, that the applicant did not play any role in Y’s attempts to obtain a protection visa and that the applicant played no part in her work as a sex worker. Y denied all these matters. However, the cross-examination did not dispute that the applicant and her husband met Y at the hotel in Glebe and took her to their home and that Y was a sex worker who worked in brothels.

21. One of the intermediaries who met Y on her entry into Australia in 2005, was Tananiwat Sakaew. He was called by the Crown and confirmed the circumstances of her entry into Australia and her meeting the applicant. He also stated that, after her entry, he visited Y at a brothel and had sex with her. They commenced a relationship. He said that Y told him that she “had a debt, that she had to repay the debt”. He agreed that in his police statement dated 29 April 2011 he said that Y referred to having to pay $50,000.00. He also recalled that Y told him that she worked seven days per week between 10.00am and 11.00pm, that the “boss’s husband” assisted her with immigration and that her “boss” held her passport and would not return it until the debt was paid. In cross‑examination he said that Y told him that she would need to obtain permission from the applicant for him to take Y shopping.

22. The Crown also called evidence from various AFP agents about the timing of their investigation, the outcomes of their inquiries seeking visa applications and movement records and the time at which first complaint was made to them by X and Y about their treatment by the applicant.

23. As noted, the applicant did not call any evidence in her case. In light of what was put to X and Y and the evidence of the other witnesses it is necessary to consider the defence case further. There is no doubt that the effect of the cross‑examination was to dispute all the relevant aspects of X and Y’s evidence that suggested that either of them were coerced by the applicant to perform sex work in Australia or that the applicant exercised any form of power or control over them. Support for that aspect of the defence derived from the fact that X and Y were clearly experienced sex workers before they came to Australia and continued working as sex workers after the asserted debt was paid, as well as some aspects of the evidence concerning their living arrangements with the applicant’s family.

24. Nevertheless, the undisputed aspects of their evidence and the other witnesses unequivocally established that the applicant must have known they were sex workers, and the applicant was actively involved in a scheme to facilitate their entry into, and remaining in, Australia to perform sex work. As noted, it was undisputed that the applicant and her husband first met X and Y at an arranged location soon after their arrival in Australia and immediately took them to their home. There is no plausible explanation for that conduct other than, at the very least, the applicant’s knowing participation in a scheme to effectively smuggle Thai sex workers into Australia. Hence the critical factual issue for the trial was whether the Crown had demonstrated that the applicant was part of a scheme in which she controlled and coerced those sex workers or only assisted them.

Extension of Time

25. The applicant’s solicitor swore an affidavit dated 21 February 2022 addressing what she accepted was the “extensive delay” in the bringing of the appeal. The applicant’s previous solicitors filed a notice of intention to appeal four days after the applicant was sentenced. They sought and obtained two extensions of its expiry date up to 1 December 2020 while attempts were made to obtain the trial transcript and exhibits. In December 2020, counsel briefed on the appeal raised an issue about the failure to adduce good character evidence at the trial which I infer necessitated a change in solicitor. New solicitors were retained, and by August 2021, draft submissions had been prepared. However, counsel requested that further instructions be obtained about the failure to adduce character evidence. The solicitor explained in detail the steps taken to obtain those instructions from March 2021 onwards including speaking to the applicant’s partner, obtaining copies of the character references tendered at the sentencing hearing and speaking to the authors who confirmed that they were only asked to prepare them after the applicant was convicted. Ultimately, this led to an affidavit being sworn by the applicant in December 2021 the terms of which are outlined below. The solicitor with carriage of the application was overseas from December 2021. The appeal materials were filed on their return in February 2022.

26. The respondent’s submissions correctly noted that, whether an extension of time should be granted, involves a consideration of the interests of justice in each case including the prospects of success of the appeal should the extension be granted (citing Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37). Given that ground 5 of the sentence appeal was conceded, the respondent did not oppose an extension of time being granted. Otherwise, even though the explanation for the delay is, in some respects, less than adequate, given the strength of ground 2 of the appeal, I propose that the extension of time be allowed.

Ground 1 of the Appeal: Good Character

27. Ground 1 of the notice of appeal is as follows:

“(a)   The directions as to the applicant’s good character were erroneous and occasioned a miscarriage of justice;

(b)   The failure of the applicant’s trial counsel to adduce evidence of the applicant’s good character occasioned a miscarriage of justice.”

Ground 1 (a): The Character Direction

28. After the Crown case closed, counsel for the applicant advised the trial judge that he had neglected to raise the applicant’s good character. He said that he had forgotten to ask the officer in charge to confirm that the applicant had no criminal antecedents. This was resolved by the Crown stating that it would concede that the applicant had no prior convictions which the trial judge took as an acceptance that she was of “prior good character”. The trial judge read to the parties a proposed direction that was not materially different to that which was ultimately given, except that the Crown requested that there be added the statement that persons of good character may commit offences for the first time. Counsel for the applicant did not contend that there was any deficiency in the proposed direction.

29. The trial judge gave the following direction in relation to the applicant’s prior good character:

“So I turn now to good character. You have heard the concession from the Crown that the accused has no record of prior criminal offences. You would accept that she is a person of prior good character. The law provides that a jury is entitled to take the prior good character of an accused into account on the question of whether the Crown has proved the accused’s guilt beyond reasonable doubt.

Needless to say persons of good character may commit offences for the first time. The fact that the accused has no criminal convictions is of some relevance to the likelihood of her committing those other offences. None of this means, of course, that prior good character provides the accused with some kind of defence. It is only one of many factors that you are to take into account in determining whether you are satisfied beyond reasonable doubt of the guilt of the accused.” (emphasis added)

30. No complaint was made about this direction after it was given.

31. On appeal, the applicant contrasted this direction with the relevant part of the direction in the Criminal Trials Bench Book which relevantly provides:

“The fact that [the accused] is a person of good character is relevant to the likelihood of her having committed the offence alleged. You can take into account [the accused’s] good character by reasoning that such a person is unlikely to have committed the offence charged by the Crown. Whether you do reason in that way is a matter for you.” (emphasis in applicant’s submissions)

32. The applicant contended that, unlike this direction, the direction given by the trial judge omitted the “crucial portion of the direction that communicates to the jury the relevance of evidence of good character”. The applicant referred to the following passage from R v RJC (Court of Criminal Appeal (NSW), 18 August 1998, unrep) which discussed the content of a good character direction (at page 27 per Wood CJ at CL, Sully and Ireland J):

“No particular form of words is necessary, but the direction should convey to the jury that they should bear in mind the accused's good character when considering whether they are prepared to draw from the evidence the conclusion of the accused's guilt. They should bear it in mind as a factor affecting the likelihood of the accused committing the crime charged. The judge may add, if he thinks it appropriate in the particular case, that the jury should consider the accused's previous good character in assessing the credibility of any explanations given by him and, when he has given evidence, his credibility as a witness.” (emphasis in the applicant’s submissions)

33. The applicant’s submissions accepted that r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (“the Rules”) was engaged by the failure of the applicant’s counsel to complain about the form of the direction but submitted that there was no tactical advantage accruing to the applicant from that failure, that the deficient direction “went to a crucial aspect of the trial” and “occasioned a miscarriage of justice”.

34. I do not accept these contentions.

35. Evidence of an accused’s good character is capable of affecting an assessment of whether it was it unlikely that the accused committed the offence with which they have been charged (Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32 (“Melbourne”)). It also capable of enhancing the credibility of any explanation that the accused may have given of the circumstances surrounding the offence (R v Murphy (1985) 4 NSWLR 42). In this case, the applicant did not give evidence or any explanation, so the latter purpose was of no relevance.

36. There is no rule of law that in every case in which evidence of good character is given, the judge must give a direction as to the manner in which it can be used (Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25) although if a direction is given, it must be accurate (Melbourne at [157] per Hayne J).

37. While it may have been preferable for the character direction given by the trial judge to have expressly stated that they could take into account the accused’s prior good character “by reasoning that such a person is unlikely to have committed the offence charged by the Crown” there is no authority or legal rule that mandates that must be stated. The emphasised passage from the direction given by the trial judge replicates the emphasised passage from R v RJC cited above. All the other authorities cited by the applicant simply refer to good character as something bearing on the likelihood of the accused committing the offence but do not specify any requirement to expand upon how or why that is so (R v Robinson [1999] NSWCCA 172 at [24] per Grove J with whom Abadee and Barr JJ agreed: “… material to considering whether it was unlikely that the appellant committed the offence”; R v Soto-Sanchez [2002] NSWCCA 160; (2002) 129 A Crim R 279 at [27] per Stein JA with whom Sully J and Smart AJ agreed: “It was also a factor affecting the likelihood of the appellant having committed the offence”).

38. In R v Hart [2002] NSWCCA 313; (2002) 131 A Crim R 609 the relevant direction told the jury that they “should bear the evidence of good character as a factor affecting the likelihood of her having committed the crime of which she is charged” (at [11]). While various errors were established with the character direction, this aspect of the direction was not found to be erroneous or inadequate (at [12] per Adams J with whom Sheller JA and Hidden J agreed). In Melbourne, the trial judge’s direction told the jury that, by reason of the appellant’s good character, they were “entitled to consider the improbability of [his] committing the instant offence” (at [19]). The adequacy of that part of the direction was not the subject of complaint in Melbourne. Instead, the issue in Melbourne was whether a miscarriage of justice was occasioned by the failure of this direction to address the credibility of the appellant.

39. Further, in circumstances where something occurred at a trial without complaint by trial counsel and which is said to have occasioned a miscarriage of justice, it is common, in appeals to this Court, for appellants to treat that failure to complain as a matter that solely relates to whether leave should be granted under r 4.15 of the Rules. However, in many, if not most cases, the true significance of the failure to complain is that it can be a strong indicator that nothing prejudicial to a fair trial occurred (see De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [35] per Kiefel CJ, Bell, Gageler and Gordon JJ; Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 95 ALJR 894 at [57] per Kiefel CJ, Keane and Steward JJ; Cox v R [2022] NSWCCA 66 at [48] and [56]).

33. In this case, and contrary to the applicant’s submissions in this Court, the applicant’s good character was anything but a “crucial aspect” of the trial. A reading of the transcript concerning this direction reveals all of the trial judge, the Crown prosecutor and trial counsel for the applicant referred to the prior good character of the applicant. This reference appears to have been deliberate. I have outlined the defence case above including so much of the evidence of X and Y that was disputed and undisputed. As noted, it was not in dispute that X and Y were sex workers, that they entered Australia to work as sex workers with the assistance, and, on the Crown case, at the direction of, a criminal syndicate, that they were met by the applicant at a pre-arranged location and were then housed by the applicant while they undertook sex work. As I have explained, in substance, the applicant’s real case, or at least her only plausible case, was that she was part of a scheme that only assisted Thai sex workers to enter this country and work in brothels but was not part of a scheme that forced Thai sex workers to do so and did not exercise any control over them. On any realistic view of the applicant’s own case, her conduct was cruel and exploitative and fundamentally inconsistent with anyone said to be of good character. Her prior good character was largely irrelevant to the resolution of the factual issues in her case.

34. I would grant leave to raise Ground 1(a) but reject the ground.

Ground 1(b): Failure to Adduce Character Evidence

42. The submissions in support of this ground point to the character evidence that was adduced on the applicant’s behalf at her sentencing hearing which it was contended could, and should, have been adduced at her trial.

43. The circumstances of the (alleged) failure of the applicant’s former legal representatives to adduce character evidence on her behalf were addressed in an affidavit sworn by the applicant on 6 December 2021 that was read at the hearing of the appeal. In that affidavit, the applicant stated that, prior to the trial, her solicitor asked her for the names of people who could give evidence on her behalf. She suggested her partner, her daughter and a friend. She recalls that he advised that it was not necessary for him to contact those people as it would not be beneficial to her case. The applicant said that some weeks into the trial, her solicitor asked her to provide him with letters “from people who could talk about the type of person she was”. She recalled that, after she was convicted, she observed her solicitor providing her counsel with various letters and statements about her character. As noted above, the applicant’s current solicitor contacted the authors of those statements who confirmed that they were not asked to provide them until after the applicant was convicted.

44. The particular evidence identified in the applicant’s submissions as to what should have been adduced on the applicant’s behalf at the trial was as follows.

45. First, the submissions refer to a statement from a Ms Bencha Lapphochai, who arrived in Australia in 2004 and met the applicant in 2007. She described the applicant as having a “good heart” and as having given her “moral support and good advice when I broke up with my ex-boyfriend”. She stated that the applicant “cares for other people and shares her stuffs like food, clothes even though she doesn’t have much at all” and that “[s]he likes to help people, no matter who they are”. Ms Lapphochai said the applicant was “was sometimes used because of her kindness.”

46. Second, the applicant referred to evidence from Rachel Burton who is the daughter of the applicant’s former partner. She described the applicant as a “truly kind and generous person” and added that:

“Whenever I stayed in her home in Sydney between 2003-2010 the home was always full of people and she always had home cooked meals and a smile for anyone staying with her. She went out of her way to always make me feel welcome in her home.” (emphasis added)

47. Ms Burton added that:

“My view of these offences is that they are grave indeed. It is my understanding from the lawyer Mr Lang that there was a contract regarding repayment with the two victims, and that those two women were put into a condition of slavery by Rung relating to working as sex workers under that contract for several months each. I cannot believe that Rung has been found guilty of these offences. I believe it is relevant to think of the cultural differences and difficulty for some people to emigrate to Australia, and that they have sought help with affording it. Knowing the nature and facts of the offence, it does not sit against my understanding of Rung’s character, and I am in disbelief.” (emphasis added)

48. At this point I note that, even on the applicant’s case, X and Y did not seek help from the applicant. Instead, the applicant attended a meeting at a prearranged location and took two strangers into her home who had obviously entered Australia under dubious circumstances to undertake sex work.

49. Third, the applicant’s submissions referred to a reference given by Craig Alexander, a real estate agent and friend of the applicant. He said that he first met the applicant in about 1997 and had been friends with her and her (former) partner since then. The portion of the reference said to be of relevance is as follows:

“I have seen Rung over the years when visiting [the applicant’s partner] and then Rung would invite me to stay for dinner or lunch. Rung was a welcoming lady in her home and what is important is I observed Rung always offered a helping hand to anyone, and their home was an open door. This is particularly what makes it so hard to conceive that Rung putting others under duress for the purpose of sexual slavery. This is totally out of character from my observation of Rung who always offered someone a meal or a place to stay and was generous and kind to others.

…

I believe Rung is a gentle, thoughtful, honest, caring lady. ….” (emphasis added)

50. Fifth, the applicant’s submissions referred to a statement of Robert Charles Cornish. Mr Cornish wrote that he had first met the applicant in 2008. He referred to the applicant’s welcoming nature and that her home was “a hive of activity with people dropping in to share a yarn or help from [the applicant] and [her partner]”.

51. Sixth, the applicant’s submissions referred to a statement of Ms Pauline Beveridge. Ms Beveridge was 92 years of age at the time she wrote her statement and described the conduct of the applicant in caring for her older sister for three years until she died on 16 December 2018. Ms Beveridge stated that she was appalled by the applicant’s arrest and expressed her “hope [that] she receives justice tempered with mercy, recognizing her valuable contribution and redeeming nature as a very conservative old-world Buddhist practitioner. She has given comfort and service to so many over her life and so many I have met speak very highly of her.”

52. Much of this evidence (and the other “character” evidence adduced at the sentencing hearing) was on any view irrelevant to the charges against the applicant in that it either concerned the hardship faced by the applicant in her life, her son’s circumstances or, in the case of evidence such as that given by Ms Beveridge, had little relevance to the time frame of the trial as it concerned events well after 2005. More importantly, any attempt to adduce evidence from the balance of these witnesses had the real potential to be a forensic disaster for the applicant for two related reasons.

53. First, as the Crown submitted, had these witnesses been called at the applicant’s trial then that would have had the real potential to result in the deponents being cross‑examined about their observations of the applicant’s home and the conditions of any young women who resided there so as to corroborate X and Y’s claims. The various references in the above material to the applicant’s home being a “hive of activity” and being “always full of people” could easily have been characterised as evidence supportive of so much of the Crown case that contended that the applicant was a participant in a sophisticated scheme to facilitate the entry into Australia of Thai sex slaves who resided with her at her home.

54. Second, presumably the (hypothetical) calling of these character witnesses would only have occurred after the Crown case closed; i.e., after X and Y had been cross‑examined and the other witnesses called. By that time, it would have been apparent that the applicant was not disputing that she had met each of X and Y at a prearranged location, had taken these two strangers who had entered Australia under dubious circumstances into her home and that thereafter they had both worked as sex workers in brothels around Sydney. A cross‑examination which pointed out these (undisputed) facts would have been excruciating for the character witnesses as they attempted to reconcile their observations of the applicant with the undisputed circumstances of X and Y’s arrival in Australia and their time at the applicant’s home, which on any view, suggested the applicant was involved in sex trafficking. If it was still said to be in dispute as to whether the applicant was aware that X and Y came to Australia to undertake sex work and were doing so while residing with her, then the cross‑examination could have extended to examining the witnesses about whether the applicant took an interest in the wellbeing of those who stayed with her including the circumstances of their work. It would have been a relatively simple cross examination that obtained from a witness, who described the applicant as a “gentle, thoughtful, honest [and] caring lady”, a concession which contradicted the proposition put to X that the applicant had “little interest” in what X did when she left the applicant’s house “as far as work was concerned” (see [15]).

55. The principles concerning whether some (alleged) failure of an accused’s representatives to adduce character evidence occasioned a miscarriage of justice were recently summarised by this Court in AK v R [2022] NSWCCA 175 (“AK”). Two propositions identified in AK are presently relevant. Each of them is fatal to this ground of appeal.

56. First, in considering whether some failing of an accused’s legal representatives caused or contributed to a miscarriage of justice, inquiries into the subjective thought processes of the legal representatives are avoided. Instead, the question is whether there could be a reasonable explanation for the course that was adopted at trial (TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [28] per Gaudron J, [81] per McHugh J, [107] per Hayne J (“TKWJ”); and Nudd v The Queen [2006] HCA 9 (2006) 80 ALJR 614 at [10] per Gleeson CJ). If there could be such an explanation, then no error or defect in the trial occasioning any miscarriage of justice will have occurred (TKWJ at [33] per Gaudron J, [108] per Hayne J; Ali v R [2005] HCA 8; (2005) 214 ALR 1 at [25] per Hayne J with whom McHugh J agreed (“Ali”)). In this case, it follows from the above that, objectively considered, there was (more than) a reasonable explanation for the failure to call the various witnesses in that their evidence was likely to be of little assistance to the applicant in resolving the true issue in the case, namely whether she simply assisted sex workers or coerced and controlled sex workers, and otherwise their evidence had the real potential to be positively harmful to her case.

57. Second, even if there is no such explanation, the failure to adduce that evidence will not constitute a miscarriage of justice unless there is a significant possibility that, had the relevant evidence been adduced at the applicant’s trial, the jury would have entertained a doubt about the applicant’s guilt (AK at [9]-[12] and [281]). As already explained, in circumstances where the real issue in the case was whether the applicant assisted sex workers or coerced and controlled sex workers, character evidence especially of the kind set out above was likely to be of little assistance to the applicant and may have positively harmed her defence.

58. I would grant leave to raise ground 1(b) but reject it.

Ground 2 of the Appeal: Tendency Direction

59. Ground 2 of the notice of appeal contends that the directions regarding tendency evidence were erroneous and occasioned a miscarriage of justice.

60. This ground can be addressed by setting out the tendency direction that the trial judge gave to the jury. The summing up commenced on 7 May 2019. On that day, her Honour directed the jury in relation to tendency as follows:

“The accused is charged only with the offences stated in the indictment, and you all have copies of the indictment. You are all aware that there are some six counts that she is charged with on the indictment. You have before you evidence that the Crown relies upon as establishing that she committed those offences. However, you also have evidence that the accused did a number of things and I am going to list those as (a) to (h). You have evidence before you that:

(a)   the accused imposed on [X] and [Y] a debt of $45,000;

(b)   the accused required [X] and [Y], knowing both women did not have a visa that enabled them to work in Australia, to work as prostitutes to pay off a debt of $45,000;

(c)   the accused required [X] and [Y] to provide the accused with all their earnings derived from sex work at the end of each day, save for tips, until they had paid their debt of $45,000;

(d)   the accused required [X] and [Y] to work at various brothels for long hours on most days of the week;

(e)   the accused required [X] and [Y] to live at the accused’s home address while they paid off their debts of $45,000;

(f)   the accused took possession of [X’s] and [Y’s] passports until they had paid off their debts of $45,000;

(g)   the accused called both [X] and [Y] from time to time to ask how busy she was at work until they paid off their debts of $45,000; and

(h)   the accused suggested that [X] and [Y] tell a fabricated story to an immigration adviser for the purposes of obtaining a refugee visa.”

61. What is striking about this conduct is that it comprises every particular of the conduct of the applicant said to satisfy the definition of slavery and the four offences under s 270.3(1)(a) of the Code in relation to both complainants and no other conduct. It groups the various particulars of conduct together in relation to both complainants.

62. The direction then identified the tendency sought to be established by the Crown as follows:

“What the Crown says about those factors (a) to (h) is that that evidence reveals that the accused has a tendency to act in a particular way. The Crown says that the accused has a tendency to act in a particular way, namely:

(a)   to impose on [X] and [Y] a debt of $45,000;

(b)   to require [X] and [Y], knowing both women did not have a visa that enabled then to work in Australia, to work as prostitutes to pay off a debt of $45,000;

(c)   to require [X] and [Y] to provide the accused with all of their earnings derived from sex work at the end of each day, save for tips, until they had paid off their debts of $45,000;

(d)   to require [X] and [Y] to work at various brothels in Sydney for long hours on most days of the week;

(e)   to require [X] and [Y] to live at the accused’s home residence while they paid off their debts of $45,000;

(f)   to take possession of [X’s] passport and [Y’s] passport until they had paid their debts of $45,000;

(g)   to call [X] and [Y] from time to time to ask how busy she was at work until they had paid off their debts of $45,000;

and

(h)   to make [X] and [Y] to tell a fabrication to an immigration adviser for the purposes of obtaining a refugee visa.” (emphasis added)

63. Again, what is striking about this alleged tendency is how specifically it is framed and how it coincides with the very acts that are said to give rise to the alleged tendency. The alleged tendency said to be established by the various acts committed against the two complainants which found the basis for the four slavery charges is a tendency to commit those very same acts against both of them. This reflected the manner in which the original tendency notice under s 97(1)(a) of the Evidence Act 1995 (NSW) served on the applicant identified the alleged tendency.

64. In Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [41] the plurality of the High Court (Kiefel CJ, Bell, Keane and Edelman JJ) observed that the assessment of whether evidence has significant probative value in relation to each count on an indictment involves consideration of two interrelated but separate matters, the first being “the extent to which the evidence supports the tendency” and the second being “the extent to which the tendency makes more likely the facts making up the charged offence”. Implicit in that observation is that the tendency is not expressed in precisely the same terms as the facts making up the charged offence.

65. There are a number of problems with a tendency direction that identifies the alleged tendency in precisely the same terms as the acts said to give rise to it and which concern both complainants. The utility of a tendency direction in a case such as this is that, if properly formulated, it was a means of enabling the jury to utilise its acceptance of the evidence of one of the complainants to accept the evidence of the other. By grouping the conduct engaged in against X and Y together and then formulating the alleged tendency in a manner specific to both of them, the direction wholly failed to achieve that purpose.

66. Moreover, the direction was misleading. As formulated, this direction meant that, unless the jury were satisfied of each of the precise acts relied on in relation to both complainants, then they could not be satisfied that the corresponding tendency has been established. However, leaving aside any question of the standard of proof, if they were satisfied of the relevant acts in relation to both victims then the Crown would not need to rely on the existence of any alleged tendency to prove its case as it would already be proved.

67. Another difficulty with the framing of the tendency in this way, is illustrated by the next part of the direction that was given to the jury which stated:

“The Crown says that the accused had a tendency to act in those particular ways, which I have just nominated, making it more likely she committed the offences charged in the indictment. The evidence suggesting that the accused had that tendency can only be used in the way the Crown asks you to use it, if you make two findings. The first finding is that one or more of those acts occurred. In making that finding you do not consider each of the acts in isolation but consider all the evidence and ask yourself whether you find that a particular act or acts relied upon actually took place.

If you find that none of the acts occurred then you must put aside any suggestion that the accused had the tendency advanced by the Crown. If you do find that one or more of the acts occurred then you go on to consider whether, from the act or acts that you have found occurred, you can conclude that the accused had the tendency to act in the particular way that has been summarised earlier at (a) to (h) above. If you cannot draw that conclusion then again you must put aside any suggest[ion] that the accused had the tendency alleged.

So, if having found one or more of the acts attributed to the accused occurred, and you also conclude that the accused had the tendency to act in a particular way, you may use the fact of that tendency in considering whether the accused committed the offences charged. you should bear in mind that this is just one part of the evidence relief upon by the Crown. you should give it what weight you think it deserves in the context of all of the evidence before you. The evidence of other acts must not be used in any other way.

It would be completely wrong to reason that, because the accused has committed one crime or more acts of misconduct, she is, therefore, generally a person of bad character and for that reason must have committed the offences charged. you cannot punish the accused for other conduct attributed to her by finding the accused guilty of the charges in the indictment. That is not the purpose of the tendency evidence being placed before you and you must not reason in that way. you cannot use it in any way against the accused unless you accept the Crown’s argument that it discloses a tendency and, therefore, makes it more likely that the accused committed the offences charged against her.” (emphasis added)

68. In this passage, the jury were told that if they could not find that any of the acts occurred then they must put aside “any suggest[ion] that the [applicant] had the tendency alleged”. However, if the jury could not find that any of those acts occurred then they would not just put aside the suggestion that the applicant had the tendency alleged, they were obliged to find her not guilty as then there would be nothing left of the Crown case.

69. Further, it is difficult to understand what the phrases “other acts” and “other conduct” in this direction is referring to. As noted, the acts said to give rise to the alleged tendencies were all the particulars of the offences under s 270.3(1)(a) of the Code said to have been committed by the applicant. There were no “other acts” alleged against the applicant as there would have been had there been reliance on conduct that did not constitute the charge or a particular of a charge on the indictment. If the jury understood the reference to “other acts” as the acts particularised as giving rise to the alleged tendency, then the effect of the direction was to tell them that they could not use the evidence of those acts for any purpose other than tendency reasoning. However, the evidence of those acts was direct evidence in support of the subject charges. As noted by the applicant in her submissions, this aspect of the direction would have only made sense if her Honour had limited the asserted tendency to the evidence of one complainant for use when considering the charges relating to the other complainant.

70. This difficulty is exemplified by the concluding part of the direction which was as follows:

“The evidence led by the Crown to prove that the accused had a tendency to act in a particular way is separate from the specific allegations in the indictment. you must not substitute the evidence led by the Crown to prove that the accused had that tendency for the specific allegations in the indictment. you are concerned with the particular and precise occasion alleged in each of the charges. If you find that the accused had the tendency alleged by the Crown, it may indicate that the particular allegations are true but, remember, you are required to find that each specific charge is proved beyond reasonable doubt before you can find her guilty.” (emphasis added)

71. The emphasised portion of this direction is wrong. The evidence led by the Crown to prove that the applicant had the tendencies alleged was not separate from the specific allegations in the indictment; that evidence was evidence of the specific allegations in the indictment.

72. After giving this direction, the trial judge gave the jury a coincidence direction referring to the similarities in the two accounts given by X and Y (see Addo v R [2022] NSWCCA 141 (“Addo”)) and a separate counts direction. The summing up continued on 8 May 2019 and the jury retired on that day. On the second day of their deliberations, the jury requested a further explanation of the tendency direction “in plain English”. The trial judge then repeated the direction in terms that are not materially different to that set out above. A number of days later, the jury returned verdicts of guilty.

73. The Crown’s written submissions noted the difficulty with the failure of the tendency direction to differentiate between the alleged acts of the applicant towards each complainant. However, the Crown submitted that there was nothing erroneous per se in the tendency direction although it is accepted that the direction does not in terms make it clear that the jury could use the evidence relating to X on counts 1 to 3 as tendency evidence supporting Y’s evidence on counts 4 to 6 or vice versa. That submission reflects the ultimate failure of the direction to do what was intended but as I have pointed out there were numerous aspects of the direction that were erroneous.

74. The Crown also noted that there was no complaint about the direction which is an indication that it was not productive of prejudice and that otherwise r 4.15 of the Rules applied. That maybe so, but the failure of counsel for the applicant to object must be seen in the context whereby it was the Crown that sought to rely on tendency evidence and the fundamental flaw in the direction flowed from the manner in which the Crown formulated the alleged tendency.

75. In supplementary submissions filed after the hearing addressing the “proviso”, the Crown submitted that the tendency direction did not give rise to a miscarriage of justice because there was not a “realistic possibility of a causal connection” between the error and the verdict returned (citing Hofer v The Queen [2021] HCA 36; (2021) 395 ALR 1 at [120] per Gageler J and [130] per Gordon J (“Hofer”)).

76. I do not agree. In Addo, this Court addressed a coincidence direction that provided no sensible assistance to the jury in how to address the evidence of a complainant and her mother who gave similar accounts. It was held that the direction did not identify a permissible basis for using the evidence of the complainant’s mother as either coincidence evidence or tendency evidence and this was an irregularity in the conduct of the trial (at [100] per myself, Adamson and Bellew JJ). This case is not relevantly different. The jury was tasked with, amongst other matters, the responsibility for assessing the credibility of the two complainants. Their evidence was crucial to the Crown case. The tendency direction was meant to give the jury a pathway of reasoning from accepting the evidence of one of the complainants to accepting the other. It not only failed to do that; it was capable of misleading the jury about what use could be made of their evidence and otherwise left the jury unassisted and most likely confused as to tendency reasoning. There is the very real possibility that it affected the jury’s acceptance of the complainants’ evidence.

77. Subject to considering the application of the proviso, I would uphold ground 2 of the appeal.

The Proviso

78. During argument, the Crown submitted that, in the event that ground 2 was upheld, the appeal against conviction should nevertheless be dismissed in reliance on the “proviso” to s 6(1) of the Criminal Appeal Act, ie, the Court should dismiss the appeal because it should find that no substantial miscarriage of justice occurred. As reliance on the proviso was raised so late, it necessitated the parties filing written submissions on the application of the proviso after the hearing. This Court’s practice note requires the Crown to notify of reliance on the proviso in advance of the appeal (Court of Criminal Appeal Practice Note SC CCA 1 at [19]). It was not complied with by the Crown in this case.

79. In its supplementary written submissions, the Crown submitted that each of the complainants “gave clear evidence of the way they were treated by the applicant” which it contended plainly amounted to slavery and money laundering. It also contended that material aspects of the complainants’ evidence were the subject of coincidence reasoning (and a coincidence direction), key parts of the complainants’ evidence were corroborated by the evidence of their respective boyfriends and the complainants’ evidence was tested in cross‑examination. Lastly, the Crown submitted that aspects of the complainant’s evidence was not in dispute such that what was in dispute was the “nature of the relationship between the [applicant] and each of the complainants and whether the applicant’s treatment of the complainants amounted to slavery”.

80. The applicant submitted that the proviso could not be invoked. Her supplementary submissions noted that crucial aspects of the Crown case relevant to each count on the indictment were dependent upon findings about the “credibility” (ie, honesty and reliability) of the two complainants which were in dispute. The various aspects of X and Y’s evidence that were put in dispute are outlined above. As noted, every relevant particular said to satisfy the definition of slavery and the acts the subject of the charges under s 270.3(1)(a) of the Code was disputed. It was submitted that this Court, acting on the record of the trial, could not reach any conclusion about the reliability and honesty of the two complainants at least on those matters and thus could not apply the proviso.

81. In Weissv The Queen (2005) 224 CLR 300; [2005] HCA 81 (“Weiss”), three fundamental propositions attending the application of the proviso were articulated (at [39] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ):

“First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt.”

82. In relation to the second of these propositions, their Honours observed (at [41]), that “[t]here will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction” with the result that “[i]n such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial.” In Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 at [15] (“Kalbasi”) the plurality (Kiefel CJ, Bell, Keane and Gordon JJ) observed that such cases “may include, but are not limited to, cases which turn on issues of contested credibility”. Their Honours cited Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46 (“Castle”) in support of that proposition.

83. In Castle, both appellants were found guilty of murder. One of the appellants, Mr Bucca, was alleged to have shot the deceased. The other, Mr Castle, was alleged to have been a party to either a joint criminal enterprise to kill the deceased or an extended joint criminal enterprise to assault and detain the deceased. The trial judge was found to have erred in leaving to the jury evidence of a conversation between a witness and the appellant, Mr Bucca, on the basis that it could have been an admission to the killing, when it was exculpatory (Castle at [64] per Kiefel, Bell, Keane and Nettle JJ). The South Australian Court of Criminal Appeal concluded that the proviso was satisfied because the balance of the evidence was of “such strength that a reasonable jury properly instructed would inevitably have convicted the appellants and accordingly that no substantial miscarriage of justice actually occurred” (at [65]). This finding was held to be erroneous because it failed to recognise that the relevant evidence was in fact exculpatory and thus could in itself have provided a basis for a reasonable doubt (at [65]).

84. Of present relevance is that in Castle, it was accepted that it was open to the Court of Criminal Appeal to conclude that the evidence of Mr Bucca was glaringly improbable but the plurality observed that proof of guilt depended on the disputed oral evidence of a Crown witness whose credibility was challenged (at [66]-[67]), including on the basis of her acknowledged drinking, drug consumption and psychotic episodes (at [19]). Consistent with Weiss, the High Court found that the “natural limitations of proceeding on the record precluded a conclusion that guilt was proved beyond reasonable doubt” (at [68]).

85. In this case, the Crown relied on Hofer as an instance of a case where, in applying the proviso, the High Court rejected the appellant’s evidence to the effect that he believed the two complainants had consented to have sex with him. In Hofer, the error that occasioned a miscarriage of justice concerned the manner in which the appellant had been cross‑examined by the Crown Prosecutor. Even though a majority concluded that an appellate court could reject his evidence and apply the proviso, that was not because of a preference for the complainants’ evidence over the evidence given by the appellant but because it was apparent that the appellant’s evidence in support of his belief that each complainant was consenting to having sex with him was “so glaringly improbable that it was not capable of raising a doubt in the mind of a reasonable jury as to his recklessness as to whether either complainant consented to having sex with him” (at [63] per Kiefel CJ, Keane and Gleeson JJ; at [80] per Gageler J). The improbable nature of that evidence was described by Kiefel CJ, Keane and Gleeson JJ as follows (Hofer at [66]):

“It is an affront to common sense to suggest that the appellant, in fabricating the pretext of offering to share his house, was acting otherwise than with the intention to lure young women back to his house and, having plied them with alcohol before doing so, to have sex with them irrespective of their wishes. There is no room here for reasonable doubt that in the case of each complainant the sexual assaults which the appellant perpetrated were planned in advance and were to be executed without regard to the wishes of the complainants.”

86. In this case, it follows from the conclusion in relation to ground 2 that no reliance can be placed on the jury’s verdict as a means of overcoming the limitations placed on this court in assessing the credibility of the complainants given the difficulties with the tendency direction that have been identified (cf Rogerson v R; McNamara v R [2021] NSWCCA 160 at [401] per Bell P, R A Hulme J and myself). Further, having regard to those natural limitations, no finding analogous to that made in Hofer when rejecting the appellant’s evidence in that case, can be made in this case about so much of the complainants’ evidence that concerned the crucial and disputed issues of alleged control and coercion of them by the applicant. As noted, the evidence of the complainants’ respective boyfriends provided some corroboration for their evidence but only to relay a contemporaneous complaint by them that they owed a debt to the applicant. In circumstances where there was a serious challenge to those parts of their evidence that were said to demonstrate that the applicant enslaved X and Y, there was no body of objective evidence supporting those disputed aspects of their evidence beyond the complaints to their respective boyfriends and there were matters providing some support for a defence case that suggested they were not coerced, a conclusion that so much of their evidence as was capable of supporting the charges should be accepted could not be made by this Court which did not have the opportunity to observe them give evidence.

87. It follows that I consider the proviso cannot be applied, ground 2 must be upheld and the applicant’s convictions set aside.

Appeal Against Sentence

88. Ground 3 of the applicant’s notice of appeal contended that her Honour erred “when finding special circumstances by applying principles associated with the sentencing of offenders for offences against NSW laws”. Ground 4 contends that her Honour “failed to have proper regard to the significance of the applicant’s prior good character when determining an appropriate sentence”. Ground 5 contends that her Honour’s “approach to the application of s 16A(2)(p) of the Crimes Act 1914 (Cth) was erroneous”. This ground seeks to rely on the construction of that provision enunciated in Totaan v R [2022] NSWCCA 75; (2022) 400 ALR 578.

89. In light of the conclusion that I have reached concerning the conviction appeal, it is not appropriate to address these grounds of appeal. However, for the sake of completeness, I note that the Crown conceded ground 5. On my reading of the sentencing judgment, that concession appears to have been well founded.

Proposed Orders

90. It follows that I consider that the appeal must be allowed, the convictions set aside, and new trials ordered. It will be a matter for the Commonwealth Director of Public Prosecutions to determine whether there is a new trial.

91. In their written submissions, both the applicant and the Crown submitted that this judgment should not be published on pending any retrial. I do not agree. This was a significant prosecution, and the conviction is being set aside many years after the trial concluded. There is a strong public interest in the reasons for that occurring being made publicly available. These reasons can be taken down from caselaw in advance of any further trial date. Any prejudice arising from any publicity that is generated can be expected to have well and truly subsided by that time.

92. I propose the following orders:

1. Grant the applicant an extension of time to apply for leave to appeal against her 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.

   93. ADAMSON J: I agree with Beech-Jones CJ at CL.

   94. CAMPBELL J: I agree with Beech-Jones CJ at CL.

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Amendments

05 December 2022 - Headnote - references to "his" amended to read "her"

22 May 2025 - Publication restriction removed – judgment republished

Decision last updated: 22 May 2025