R v Tang

[2007] HCATrans 810

[2007] HCATrans 810

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M79 of 2007

B e t w e e n -

THE QUEEN

Applicant

and

WEI TANG

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 DECEMBER 2007, AT 11.16 AM

Copyright in the High Court of Australia

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

MR S.A. SHIRREFS, SC:   If the Court pleases, I appear with my learned junior, MR M.J. CROUCHER, for the respondent.  (instructed by Slades & Parsons Solicitors)

MS ABRAHAM:   Your Honours, this application raises the question of what is required to prove the offence of slavery contrary to section 270 of the Criminal Code.  Underlying that proposition, of course, is the very fundamental question and that is the application of Chapter 2 of the Code to all Commonwealth criminal offences into how does it work, how ‑ ‑ ‑

HAYNE J:   We would get to that, would we not, Ms Abraham, through the filter of the trial judge’s charge?  The question would be what order should the Court of Appeal have made.  The Court of Appeal’s order was focused, was it not, by whether the trial judge had accurately charged the jury? 

MS ABRAHAM:   Yes.

HAYNE J:   Is not that a filter then through which these issues which I, for my own part, observe are difficult and interesting and extended, but is not that the filter through which we would see it if we were to take it?

MS ABRAHAM:   In my submission, it is not as confined as that and I say that for this reason.  Ultimately, the Court of Appeal determined the appeal on one basis and they said it related to the adequacy of the directions in relation to one aspect only.  There was no argument in the Court of Appeal about the question of the elements of the offence, per se.  There was no argument in the Court of Appeal about the application of, for example, Chapter 2.  It was not mentioned.  Section 5.2 and how one defines “intention” was not part of the discussion at all.  Despite that, we now have elements of an offence of which, as I said, there was little or no input, which are inconsistent with the application of Chapter 2. 

HAYNE J:   But the actual order which you would seek this Court to make is, is it, that which appears at 360 of the application book, namely appeal allowed, set aside the Court of Appeal and dismiss the appeal against conviction below which would involve, would it not, this Court determining that either there was no error in the judge’s charge or that the error was, for reasons that are not immediately apparent, irrelevant or in some other way to be put aside.

MS ABRAHAM:   Yes.  In the Crown’s submission the point that was used to say there was an inadequacy indeed is not an element of the offence the Crown says.  What is in the trial judge’s charge about that element – in fact it was not as an element, it was as part of a definition of “possession”, it does not even get to first base because it is not an element of the offence, if you properly apply Chapter 2 to section 270.  What the Court of Criminal Appeal appear to have done is not look at that at all, determine that as this offence is intentional, that all aspects of section 5.2 of the definition of “intention” must be included in the definition, or the elements of the offence, and tailor the elements of the offence around the definition of “intention”.

In the applicant’s submission that is fundamentally flawed and has led, it appears, to the addition of a fourth element, in effect, that means that you can possess a person or indeed exercise any other rights of ownership over a person and know that you are doing them and know all the circumstance.  But if you believe you are entitled to, because you have a contract or a debt, or that is the reason you do it, then it is not an offence. 

In the Crown submission, that actually is not an element of the offence.  The subjective reason why the respondent possessed the person, in my submission, is irrelevant.  They must intend to possess but you can possess and be a slave under the definition of “slavery” and, indeed, it has nothing to do with the fact there is a contract.  A contract can be in place as the definition of “slavery” envisages. 

KIRBY J:   What is the name of the new statutory provision which has been introduced since the prosecution of the respondent, or at least since the trial, for prosecution for bonded labour?

MS ABRAHAM:   Debt bondage.

KIRBY J:   Debt bondage, is it?  Where is that now found in the Code?  I think that Mr Shirrefs refers to it somewhere in his written submissions, but I cannot find it.

MS ABRAHAM:   It is 271 point 8. 

KIRBY J:   The difficulty I had, I must confess to you, when I read this was that it seemed to me, on my understanding of the facts, to be a very oppressive contract but difficult on the face of things to squeeze into the notion of “slavery” as one normally takes slavery to be and as the international Convention seems to refer to it.  It is more properly a matter that would fall within an offence of debt bondage.

MS ABRAHAM:   Your Honour, that in fact raises the very issue.  There is no decision but this one on the meaning of “slavery”.

HAYNE J:   There is no municipal decision, but there is a vast body of learning elsewhere.

MS ABRAHAM:   Certainly.

HAYNE J:   You go back to Nuremberg, you go back to the Yugoslav Tribunal, there is a lot of international learning about what slavery is.

MS ABRAHAM:   Absolutely, and I do not take issue with that.  But what has not been decided, apart from this particular case, is in the current Criminal Code, the definition of “slavery” in the offences, how does Chapter 2 apply?  It is not a situation, in my submission, now there is an offence of debt bondage, this might more properly fall within debt bondage and, in my submission, that is not necessarily so.  Therefore, this is not an appropriate vehicle.

KIRBY J:   It is just the fact that if proved to the satisfaction of a jury, yes, apparently it was in the second trial, it was an extremely oppressive contractual arrangement and grossly oppressive but they had Sunday off and they could make money for themselves and they got some money on Sunday, and I just question whether that is within the notion of “slavery”.

MS ABRAHAM:   Can I make two points about that.  First of all, as a matter of fact, in my submission, what happened is that the applicant purchased four of the five women for $20,000.  They then had an approximately $45,000 debt which is approximately 900 clients.  They worked up to 11 hours, six days a week, for nothing – $50 was taken off for the debt, the rest was divided between the owner and the brothel owner.  In the respondent’s case she got two cuts because she was the owner and it was her brothel.  Whilst not physically restrained, the learned sentencing judge found they were, indeed as a matter of practicality because of their circumstances, restrained.

KIRBY J:   Their passport was impounded by the respondent and their air ticket return was impounded by the respondent.

MS ABRAHAM:   Yes, they had no money, little English, and they were taken to and from work.  Of course, the passport and everything was returned after the time had expired which clearly meant, with respect, that it was part of the control.

HAYNE J:   But do you start from a form of chattel slavery?  You said that this started with a purchase.  Is that right?

MS ABRAHAM:   As a matter of fact, in this case, the Crown says yes.  There is a dispute between myself and my learned friend - on the Crown evidence, purchased the woman; on the defence interpretation, purchased a contract.

HAYNE J:   You say that first a case of chattel slavery can be made out but, second, that even if chattel slavery cannot be made out there remained slavery within the developed meaning of that term that followed the 1920s.

MS ABRAHAM:   To be perfectly blunt, it was not put on the basis that this was chattel slavery. 

HAYNE J:   It was never put as chattel slavery?

MS ABRAHAM:   No.

HAYNE J:   It has always been the more developed form?

MS ABRAHAM:   Yes.

HAYNE J:   Oppressive contract?

MS ABRAHAM:   With respect, I take issue with that because in the Crown submission, the fact that there is a contract was obviously a relevant fact, but what the court had to determine at the end of the day was whether, in relation to a number of the counts, the respondent intended to possess the person.  In my submission, there are a number of pieces of circumstantial evidence, some of which I have mentioned to the Court.  What the Court of Criminal Appeal has done is said, “Well, that’s fine you can possess, but if you think you are doing it because you have a contract, then it’s actually not slavery”.  The definition of “slavery” in the Act, in fact, includes:

where such a condition results from a debt or contract made by the person.

That definition was not altered by the enactment of debt bondage because debt bondage is a particular sort of offence.  There could be a lot of instances of debt bondage that were nowhere near, factually, as serious as this particular case.  The problem, of course, is that now there is a Court of Criminal Appeal judgment ‑ ‑ ‑

KIRBY J:   Court of Appeal actually.

MS ABRAHAM:   Sorry, Court of Appeal judgment.  If, as the Crown submits, it is inaccurate, in fact sets out elements that are not elements, and if the applicant is right as to what the elements are, then it in fact undercuts the intention of the legislation in terms of ‑ ‑ ‑

KIRBY J:   Now, can I go to the other point that was concerning me after I read the respondent’s submissions and it is this.  Though it is the fact that the Crown does not normally pay or offer costs or seek costs against an accused person, the fact is that this accused was first arrested in 2003 and has undergone two lengthy trials and was imprisoned for a year and at least possibly would fall within the bonded labour statute where the penalty is much lower.  It would, one would think, be of the order of a year, and therefore, if the Crown wants to pursue this interesting point that does not arise very often, why should we not, in the exercise of the special leave power, say you can do that but you have to pay the costs of the respondent of that process?

MS ABRAHAM:   Your Honour, if the Court does require an undertaking as to costs, then I have instructions on that aspect, that we would pay reasonable costs, if that was what was required by the Court.

KIRBY J:   Unlike the Commissioner of Taxation, you did not put that card on the table before you came here.  You were holding it back hoping that it would never be raised. 

MS ABRAHAM:   I did not think it would never be raised, but ‑ ‑ ‑

KIRBY J:   Yes, we know how you play poker, Ms Abraham.

MS ABRAHAM:   But, with respect, it is an important point and your Honour made a couple of ‑ ‑ ‑

KIRBY J:   Because the saga has not finished.  On the Court of Appeal’s orders there will be a retrial, or there may be a retrial unless you decide, as with other co-accused, not to proceed with the matter if special leave were refused.  But there has to be a third trial which is a terrible ordeal for a person to be undertaking all this at loss of liberty potentially in order to clarify the law of Australia. 

MS ABRAHAM:   Which is why I have instructions, obviously, to provide the undertaking.  Can I just answer a couple of matters that your Honour raised.  Your Honour said this does not arise very often.  With respect, there are a number of cases that relate to this offence provision.  This is not the only one, there are other cases coming up either being charged or in superior courts.  But, in my submission, it is actually broader than that.  What has occurred here, by the approach of the Court of Appeal, is that the Court of Appeal reached the conclusion that because the offence was one of intent, that every aspect of the definition of “intention” must be included in the elements of the offence, and that is paragraph 68, page 300 of the application book.  Your Honours, that has much broader ramifications than just this case.  The applicant says that is plainly wrong.

HAYNE J:   Has this Court ever looked at the engagement of Division 5 of Chapter 2 of the Code?

MS ABRAHAM:   No, Chapter 2 has not been considered by this Court, nor has this particular offence.  In the applicant’s submission, this is an ideal opportunity to do so because the consequence of the Court ‑ ‑ ‑

HAYNE J:   Makes an assumption about that chapter, yes.

MS ABRAHAM:   The problem is, your Honour, that because of statements like that at paragraph 68 of the judgment where the court found, because it was intentional, all aspects needed to be directed on in section 5.2 of the Code, that in the Crown’s submissions or the applicant’s submissions, patently wrong.  If other courts, not to do with slavery, but in attempting to apply Code provisions, Chapter 2, to determining elements of any number of Commonwealth offences, adopt this approach it is erroneous and, in my submission, brings this case ‑ ‑ ‑

KIRBY J:   You say there are other cases in the pipeline, are there?

MS ABRAHAM:   On slavery, yes. 

KIRBY J:   So that, of course, at the moment any other trial judge and probably any other intermediate court would feel obliged in, almost certainly, to follow the Court of Appeal of Victoria.

MS ABRAHAM:   That is correct. 

KIRBY J:   Therefore, you say any future trial is likely to go off and the matter is likely to end up here anyway.

MS ABRAHAM:   Absolutely.

KIRBY J:   But not with the burden of two trials and, at the moment, discharge of the order of conviction followed the second trial.  You have to jump over that barrier.  There was a time, in this Court, where that barrier was so high it was almost impossible for the Crown to get over it.

MS ABRAHAM:   Certainly, except, in my submission, there have been a number of instances, indeed this year, when Crown appeals, or appeals by the prosecution to this Court, have succeeded.  In those instances it was overturning an acquittal.  Here the order was for retrial.  The error that the

court found was on one aspect only which the Crown says just is not a part of the offence of slavery.

So, in my submission, if that decision of the court is based on incorrect principle, not only does it have an effect for this case and ought to be corrected, but it has the most broader ramifications.  If it is not corrected it will be perpetuated in other cases, not just with respect of this charge but, in my submission, because of what I pointed out, for example, of the approach of the court in relation to section 5.2 potentially in relation to any number of occasions when the courts are attempting to apply Chapter 2 to determine elements of the offence.  The other difficulty with respect to this judgment which the other courts would have to ‑ ‑ ‑

KIRBY J:   We think we might be assisted by Mr Shirrefs at this stage.  Mr Shirrefs, Ms Abraham has rather undermined your powerful arguments ad misericordiam by offering to pay your costs. 

MR SHIRREFS:   That takes out a couple of submissions in the various paragraphs, but it does not deal with the principal submission and that is whilst the subject matter of some of the issues raised is very interesting, there is in fact no demonstrable error in the judgment of the court below.

KIRBY J:   Yes, but there is the fundamental problem.  Your client, under the current order, has to be retried and we are told that there are other slavery prosecutions in the pipeline and so long as these reasons stand, that is the sort of direction that is going to have to be given by trial judges and upheld by intermediate courts. 

MR SHIRREFS:   That is not a direction that is attended by error.  That is the reason why we respond in the way in which we do.  The submissions of the applicant proceed from a fundamental misconception of the operation of Chapter 2 of the Criminal Code.  It proceeds on an assumption that when one looks at the issue of intention, for instance, set out in section 5.2, they are in the alternative. 

The fault element in the offence of slavery is, as it was in this aspect of the offence, intentionally possessing a slave.  There are a number of physical elements which Sir Owen Dixon would have referred to as the “external elements” within that offence.  The error in which the misconception upon which the applicant proceeds is that intent can only operate in one way with respect to the offence.  Because one of the physical elements is that of conduct, it only operates in the way set out in 5.2(1) of Chapter 2.

Indeed, when one looks and dissects the offence provision, there are a number of physical elements.  There is conduct, there are circumstances in which conduct occurs and that is what his Honour Justice Eames was at pains really to demonstrate in paragraph 78 when he referred to what he considered to be the appropriate elements of the offence, which is at page 303 of the application book, paragraph 77, in seeking to demonstrate what was found to be the fundamental flaw in the directions of the trial judge, and that was to direct the jury on a necessary concept, a necessary ingredient, being the accused’s state of mind, and at various paragraphs in the judgment, paragraphs 98, 120, 140 and 144, he points out where the deficiencies were in the trial judge’s directions to the jury.

The main complaint that is made by the applicant is the fourth element referred to at the foot of paragraph 77 at the bottom of page 303.  If the Court looks at the third element, that is, “must have intentionally possessed the worker”, that is one part of the offence, but it is the circumstance, and the circumstances in which that act occurred that is also relevant.  It is “possessed the worker” here, possess a slave and the way in which the scheme of the Act works is there is first a requirement to find that the person was a slave.  But it is in the context of “exercising powers attached to the right of ownership” and it is the power to possess in that context that is part of the offence.

That is what the fourth element there is all about, it is about the state of mind of the accused in the exercise of that act of possession.  Is it an exercise of the power of possession being one attaching to a right of ownership?  That carries with it a state of mind and that is what his Honour Justice Eames set out in the fourth element in paragraph 77.

HAYNE J:   A state of mind about a legal conception?

MR SHIRREFS:   No, not a state of mind about a legal conception.

HAYNE J:   Then a state mind about what?

MR SHIRREFS:   A state of mind about what he says the condition of the person that you are exercising the power of possession with respect to here one of the workers:

as though she was mere property, a thing, thereby intending to deal with her not as a human being who had free will and a right to liberty, but as though she was mere property.

KIRBY J:   Yes, but on the facts that Ms Abraham has summarised, keep the person in a brothel in this country and to give her one day off when she would be also expected to or entitled to work and to give her $50 for that day is sounding very much like the kind of consideration that Justice Eames was referring to, treating her just as a thing.

MR SHIRREFS:   There may be harsh and oppressive conditions in relation to the contract between the parties, but that does not make it slavery.

KIRBY J:   That would be the least descriptor.

MR SHIRREFS:   Insofar as the facts are concerned, the facts of the case were that these ‑ ‑ ‑

KIRBY J:   We have to look at why did the Parliament of Australia enact this provision.  It did not expect that we were going to see, in this country, people in chains and shackles and herded together and put out to sleep in the open and the slaves of yore, it was talking of slavery in today’s Australian society.

MR SHIRREFS:   Subject to that, being reasonably appropriate and adapted to the treaties.

KIRBY J:   Justice Crennan and Justice Hayne drew my attention to decisions of the Yugoslavian Tribunal.  They do appear to give a broader notion of the application of this concept in the contemporary society so why is not that an appropriate matter for this Court to examine?

MR SHIRREFS:   Your Honour, I do not argue against the issues being that of interest as to what constitutes slavery and the like, but the application before this Court focuses on specific error, the specific error being that set out in paragraph 77 and our contention is that that paragraph, insofar as an experienced criminal judge identifies the requisite elements of the offence, no error is demonstrated.

HAYNE J:   Can you assess the validity of the proposition stated in that paragraph without first coming to a view about the content of the term “slavery” and in particular whether it is confined to the notion of chattel slavery which seems to be the underpinning of much of the submission that you are advancing.

MR SHIRREFS:   Your Honour, by that question identifies a matter that was raised at the outset of the appeal and became very much a large part of the appeal being an examination of the extent of the power in terms of what is meant by “slavery” in the 1926 Convention and any subsequent conventions to which Australia is a signatory.  We do not argue against that but the court, having decided that point, and deciding that contrary to the arguments that we advanced on behalf of the respondent, concluded notwithstanding, when one examines the directions that his Honour gave to the jury, there was a fundamental failure and that was a failure to direct as to the respondent’s state of mind, hence paragraph 77.

It is as to paragraph 77 that we are responding when we say there is no demonstrable error in paragraph 77 when one appropriately considers the application of Chapter 2 of the Criminal Code.  Intention arises at a number of levels, intention to do the act, but intention also is the belief in which the act is being done.  That is what he set out in the fourth element in paragraph 77.

KIRBY J:   Of course, it is special leave, but we are not deciding the appeal.  You might well succeed in upholding Justice Eames’ approach in the Full Court, but what we have to ask is, given the novelty of this question, given that we are told that there are a number of similar prosecutions in the pipeline, given the error that is suggested in the approach of the Court of Appeal and given now, rather belatedly, that the Crown offers to pay your client’s costs of the appeal, why would we not grant special leave, particularly to protect any future trial to which your client is put, and other trials of other accused in the pipeline?

MR SHIRREFS:   One answer, your Honour, and that is simply the point that is raised on the application is not attended by sufficient error.  I am repeating myself.  As to the other issues, particularly that developed by your Honour Justice Hayne as far as the meaning of “slavery” is concerned, and a consideration of the interaction of the definition and the offence provision, we argued unsuccessfully that point before the Court of Appeal.  That is a matter of interest, but it is not on the table in terms of a ground of appeal on this application.  It must necessarily arise, one would have thought, if this Court ultimately was considering the elements of the offence and the interrelationship between the definition of “slavery” in section 270.1 and the way in which it operates with the offence provision in 270.3 because there is a circularity between the two.

The Court of Appeal did its best to resolve that in the way that they have, but that is not complained about.  The complaint that is articulated by the applicant is error identified in paragraph 77 of Justice Eames’ judgment.  We say there is no error and for that reason special leave should not be granted.

KIRBY J:   The difficulty, of course, is that whether there is error or not is something that may not be revealed until full argument and all understanding of the facts of the case as well as of the statutory provisions.

MR SHIRREFS:   I understand that.

KIRBY J:   Yes, very well.

MR SHIRREFS:   The only other matter I sought to articulate as to the facts, if your Honours want to hear it, is that the workers themselves entered into contracts with people in Thailand and what this was, in fact, was an acquisition, it was an assignment of the debt from the persons who had the debt pursuant to the contract in Thailand to the respondent after the girls had arrived in this country.  So it is not correct to say that she was “purchasing women”.  She was acquiring an assignment of a debt pursuant to a contractual arrangement.

KIRBY J:   Yes, but as I understand it, it was her brothel and for her benefit to have these girls.

MR SHIRREFS:   And for their benefit to work.  It was a voluntary decision to come into this country to ‑ ‑ ‑

KIRBY J:   I think the word “benefit” should be in inverted commas.

MR SHIRREFS:   It is, but it is viewed, your Honour, through their eyes, not mine.

KIRBY J:   Yes.  Anything in reply, Ms Abraham?

MS ABRAHAM:   Just very briefly, two matters.  First of all, it is not simply paragraph 77 that the Crown says is in error but, for example, I took your Honours to the paragraph about section 5.2, so it has broader ramifications.  Secondly, my friend’s argument actually illustrates the problem that Chapter 2 was not applied.  He has referred to the fourth element and referred to it as a “circumstance”, a “state of mind” and a “state of affairs”.  They are three different things, with respect.  In my submission, all that does is illustrate that the Court of Appeal did not apply Chapter 2 to the Code at section 270 to determine the elements.

KIRBY J:   There will be a grant of special leave in this application.  The Court notes the undertaking of the Crown to pay the costs of the applicant of this application and of the hearing of the appeal pursuant to grant of special leave.  The Court would expect that that undertaking would extend to senior counsel and the Court will expect the parties to examine the transcript of the trial to consider whether some material might be omitted for the purpose of the Court so that the Court is not unduly burdened with the transcript if it be irrelevant.  I suppose it would be a one‑day case - would you expect it to last more than one day, Ms Abraham?

MS ABRAHAM:   No, I would expect a day.

MR SHIRREFS:   I would agree with that, your Honour, but could I indicate that – it is in our written submissions – there may be a cross‑notice for cross‑appeal on the issue that your Honour and Justice Hayne articulated and that is the source of power.

KIRBY J:   Yes, we saw that.

HAYNE J:   On the source of power.

MR SHIRREFS:   On whether or not the legislation is appropriate and adapted.

HAYNE J:   That smells of 78B notices, Mr Shirrefs.  Is that right?

MR SHIRREFS:   Yes.

HAYNE J:   The parties are going to need to give careful attention to that as early in the piece as they can because I assume if we are going to get interventions, is the one-day estimate founded on intervention or none?

MR SHIRREFS:   I was just about to mention that, your Honour, because even if we did not put the cross‑appeal in, it would seem inevitable in the Court’s consideration of the elements that the Court may well have to consider whether or not the legislation is constitutional to the extent that it extends as far as it does, the two become intertwined.

HAYNE J:   I understand the intertwining and I would assume that the parties would want to go back and look at what, on a quick look, seems to be a considerable discussion of questions of slavery, at least from and including the Nuremberg Trials. 

MR SHIRREFS:   Absolutely, in which case one day may not be sufficient.

KIRBY J:   There is, of course, an international question, not only the Convention but the fact that the complainants came to this country from Thailand.

MR SHIRREFS:   Yes, but the allegation was not that the slavery existed in Thailand.  The allegation in the case was of slavery here.  The geographical aspect does not arise.

KIRBY J:   Yes, anyway, we do not have to examine it now.  We note that there may be a cross‑appeal and that if it be required, notices under section 78B of the Judiciary Act will be given.

MR SHIRREFS:   If your Honour pleases.

KIRBY J:   The Court will now adjourn to reconstitute for the following applications.

AT 11.48 AM THE MATTER WAS CONCLUDED