GLEESON CJ, GUMMOW, KIRBY, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ
THE QUEEN APPELLANT
AND
WEI TANG RESPONDENT
The Queen v Tang [2008] HCA 39 28 August 2008 M5/2008
ORDER
1. Appeal allowed.
2.Special leave to cross-appeal on the first and second grounds in the proposed notice of cross-appeal granted. Cross-appeal on those grounds treated as instituted, heard instanter, and dismissed.
3.Special leave to cross-appeal on the third ground in the proposed notice of cross-appeal refused.
4.Set aside orders 3, 4 and 5 of the orders of the Court of Appeal of the Supreme Court of Victoria made on 29 June 2007 and, in their place, order that the appeal to that Court against conviction be dismissed.
5.The appellant to pay the respondent's costs of the application for special leave to appeal and of the appeal to this Court.
6.Remit the matter to the Court of Appeal of the Supreme Court of Victoria for that Court's consideration of the application for leave to appeal against sentence.
On appeal from the Supreme Court of Victoria
Representation
W J Abraham QC with R R Davis for the appellant (instructed by Director of Public Prosecutions (Cth))
N J Young QC with M J Croucher and K L Walker for the respondent (instructed by Slades & Parsons Solicitors)
Interveners
D M J Bennett QC, Solicitor-General of the Commonwealth with S P Donaghue intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
B W Walker SC with R Graycar intervening on behalf of the Human Rights and Equal Opportunity Commission (instructed by Human Rights and Equal Opportunity Commission)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
The Queen v Tang
Criminal law – Slavery – Licensed brothel – Foreign sex workers – Whether respondent "intentionally possesses a slave or exercises over a slave any of the other powers attaching to the right of ownership" contrary to Criminal Code (Cth) ("the Code"), s 270.3(1)(a) – Elements of offence.
Criminal procedure – Directions to jury – Fault element of offence – Relevance of respondent's state of mind – "Intention" – Whether court required to direct on all aspects of definition of "intention" in Code, s 5.2 or only on aspect of definition attaching to physical element or elements of offence.
Criminal law – Conviction – Whether verdicts unreasonable or not supported by evidence – "Proviso" in Crimes Act1958 (Vic), s 568(1) – Whether verdict of acquittal or re-trial appropriate.
Constitutional law – External affairs power – International Convention to Suppress the Slave Trade and Slavery (1926) – Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices similar to Slavery (1956) – Implementation of treaty by legislation regulating conduct in Australia – Whether Code, ss 270.1 and 270.3(1)(a) within legislative power – Constitution, s 51(xxix).
Words and phrases – "possess", "powers attaching to the right of ownership", "slave", "slavery".
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.
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AGLC
R v Wei Tang [2008] HCA 39
Case
[2008] HCA 39
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the Commonwealth of Australia against a decision of the Court of Appeal of the Supreme Court of Victoria concerning charges of slavery under the Criminal Code (Cth). The respondent, Ms Tang, was accused of intentionally possessing slaves or exercising ownership powers over them in relation to foreign sex workers operating in a licensed brothel. The dispute centred on the interpretation of the "slavery offences" provisions within the Code and the proper directions to be given to a jury regarding the fault elements of these offences.
The legal issues before the High Court included whether the respondent had intentionally possessed a slave or exercised ownership powers over a slave, as defined by section 270.3(1)(a) of the Criminal Code. This required the Court to determine the meaning of terms such as "possess," "powers attaching to the right of ownership," "slave," and "slavery" in the context of Australian law, particularly given the absence of conventional slavery in Australia. Furthermore, the Court had to consider whether the trial judge had adequately directed the jury on the fault element of "intention," specifically whether all aspects of the definition of intention in section 5.2 of the Code needed to be explained, or only those relevant to the physical elements of the offence. The constitutional validity of the relevant sections of the Code, as an exercise of the external affairs power to implement international conventions on slavery, was also a background consideration.
The High Court, in a majority decision, allowed the appeal. The Court found that the trial judge's directions to the jury on the fault element of intention were erroneous, leading to a miscarriage of justice. The Court reasoned that the jury's confusion, evidenced by their requests for clarification, indicated a failure to properly understand the legal requirements of the offence. The Court also considered the application of the proviso in section 568(1) of the Crimes Act 1958 (Vic) regarding unreasonable verdicts, but ultimately determined that a retrial was the appropriate course of action, rather than an acquittal or the substitution of verdicts.
The High Court set aside certain orders of the Court of Appeal and ordered that the appeal to that Court against conviction be dismissed. The matter was remitted to the Court of Appeal for consideration of the application for leave to appeal against sentence. Special leave to cross-appeal on some grounds was granted and dismissed, while refused on another ground.
Orders
Orders of the court
1. Appeal allowed.
2. Special leave to cross-appeal on the first and second grounds in the proposed notice of cross-appeal granted. Cross-appeal on those grounds treated as instituted, heard instanter, and dismissed.
3. Special leave to cross-appeal on the third ground in the proposed notice of cross-appeal refused.
4. Set aside orders 3, 4 and 5 of the orders of the Court of Appeal of the Supreme Court of Victoria made on 29 June 2007 and, in their place, order that the appeal to that Court against conviction be dismissed.
5. The appellant to pay the respondent's costs of the application for special leave to appeal and of the appeal to this Court.
6. Remit the matter to the Court of Appeal of the Supreme Court of Victoria for that Court's consideration of the application for leave to appeal against sentence. (Majority decision, Kirby J agreeing in part but would have dismissed the appeal from the orders of the Court of Appeal of the Supreme Court of Victoria)
Background
Background to the litigation
In my opinion, the appeal fails and so does Ms Tang's attempt, by cross-appeal, to secure the substitution of verdicts of acquittal. As the Court of Appeal proposed, an order for a retrial, freed from the legal errors of the second trial, is the correct outcome.The facts The general background: The general factual background is explained in the reasons of Gleeson CJ[46]. There were various points of difference in the extensive evidence called at the trial. For example, in respect of one of the complainants, there were differences as to the arrangements whereby she had travelled to Australia from Thailand and as to the persons involved in making those arrangements. However, much of the evidence tendered against Ms Tang was not in dispute[47]. The battleground, instead, lay in the interpretation of that evidence and its legal effect. The relevant question was whether the evidence fell within the particular provisions of the Code governing, first, the "physical elements" of the offences provided in s 270.3(1) with which Ms Tang was charged, and secondly, the "fault elements" that also had to be proved in order to satisfy those charges[48]. [46]Reasons of Gleeson CJ at [6]-[18].[47](2007) 16 VR 454 at 495 [191].[48]See the Code, ss 2.1, 3.1, 3.2, 5.1. These provisions are set out in the reasons of Gleeson CJ at [5]. In this appeal, the novelty of the meaning of the "slavery offences" provided by s 270.3 of the Code gives rise to the first problem of interpretation. This country has never lawfully had "slavery" in the conventional meaning of that term and still does not. The novelty of the "general principles of criminal responsibility"[49] and the specification of the essential elements of an offence under the Code give rise to the second problem of interpretation. Those problems of interpretation must be made concrete by reference to the evidence at the trial. Such evidence will help to test whether the trial judge properly understood, and explained, the provisions of the Code so as to render the verdicts of the second jury (and the convictions that followed) both lawful and reasonable. The evidence will also help to answer the legal propositions advanced by the contesting parties. [49]The chapter heading to Ch 2 of the Code. See reasons of Gleeson CJ at [5]. At the outset, it is important to acknowledge that the evidence was by no means incontestable or clear-cut. There are two particular indications of this:.First, upon basically the same evidence, the first jury summoned to try Ms Tang and a co-accused (Mr Paul Pick, who was the manager of the licensed brothel "Club 417") acquitted Mr Pick on eight counts. The jury were unable to agree on two further counts against him or upon any of the counts presented against Ms Tang. Mr Pick subsequently applied successfully for a nolle prosequi[50]; and.Secondly, following very extensive directions given by the trial judge to the jury in the second trial, the jury returned twice to seek judicial clarification about the requirements of intention. This became the "critical issue" in the Court of Appeal as it is likewise in this Court. What took place and the terms of the questions asked by the jury and directions given by the trial judge are explained in detail by Eames JA[51]. [50](2007) 16 VR 454 at 458 [17].[51](2007) 16 VR 454 at 481-483 [122]-[129].