R v Tang - [2008] HCATrans 180

[2008] HCATrans 180

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M5 of 2008

B e t w e e n -
THE QUEEN
Appellant
and
WEI TANG
Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 13 MAY 2008, AT 10.18 AM

MS W.J. ABRAHAM, QC: May it please the Court, I appear with my learned friend, MR R.R. DAVIS, for the appellant. (instructed by Director of Public Prosecutions (Cth))

MR M.J. CROUCHER May it please the Court, my learned friend, MR N.J. YOUNG, QC, appears with me and with my learned friend, MS K.L. WALKER, for the respondent. (instructed by Slades & Parsons)

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth: May it please the Court, I appear with my learned friend, MR S.P. DONAGHUE, for the Attorney‑General for the Commonwealth intervening primarily for the purpose of resisting the cross‑appeal. (instructed by Australian Government Solicitor)

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MS R. GRAYCAR, seeking leave to intervene on behalf of the Human Rights and Equal Opportunity Commission. (instructed by Human Rights and Equal Opportunity Commission)

GLEESON CJ: Yes, you have that leave.

MR WALKER: Please the Court.

GLEESON CJ: Yes, Ms Abraham.

MS ABRAHAM: As your Honours are aware, the respondent in this case was convicted of 10 counts of offences against section 270.3(1)(a) of the Criminal Code (Cth). There were five complainants in this matter and in relation to each complainant the respondent was charged with an offence of possessing a slave and a separate offence of using a slave. As a matter of history, can I just indicate why there are two counts. Originally there was one count on the indictment in relation to each complainant. There was an argument by the defence that that information was duplicitous, that argument was upheld and the two counts resulted.

Your Honours, in a nutshell in this case, the Court of Appeal in Victoria during the course of argument concluded that there were four elements that the Crown was required to prove to establish these offences, be they the possessing offence or the use offence. The court determined that in relation to the fourth element they identified the directions given by the learned trial judge were inadequate.

It is the appellant’s submission that the Court take the appropriate approach to determining the correct elements and, as a result, the elements are in fact wrong. Indeed, importantly, the appellant says the fourth element identified is not an element of the offence. Now, the practical consequence of that of course is that there was no other challenge to any other aspect of the summing‑up in terms of the elements. It was only in relation to that particular fourth element identified by the Court that the directions were seen…

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 R v Tang

Details

AGLC: R v Tang [2008] HCATrans 180
Case: [2008] HCATrans 180
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the appeal of R v Tang, a case concerning the admissibility of evidence obtained through a covert recording. The central dispute revolved around whether the recording, made by a police informant, was obtained unlawfully and, if so, whether its admission at trial would be an abuse of process.

The High Court was required to determine whether the recording was obtained in contravention of the *Crimes Act 1914* (Cth) and, consequently, whether the trial judge erred in admitting the evidence. A key legal issue was the interpretation of provisions relating to the use of listening devices and the circumstances under which evidence obtained by such means might be excluded.

The Court's reasoning focused on the nature of the informant's actions and the relevant statutory provisions. It was held that the informant, acting under police direction, had used a listening device without a warrant, which constituted an unlawful act. However, the Court then considered the discretion to admit unlawfully obtained evidence, applying the principle that exclusion is not automatic. The judges weighed the probative value of the evidence against the impropriety of its acquisition, ultimately concluding that the admission of the recording was not an abuse of process and that the trial judge had exercised their discretion appropriately.

Orders