R v Tang

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.