R v Matamata
[2020] NZHC 677
•2 April 2020
ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF VICTIMS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2018-020-003953
[2020] NZHC 677
THE QUEEN v
JOSEPH AUGA MATAMATA
Hearing: 10 February – 17 March 2020 Counsel:
CR Walker and FE Cleary for Crown R Philip and W Hawkins for Defence
Ruling:
16 March 2020
Reasons:
2 April 2020
Reissued:
30 July 2020
REASONS FOR RULINGS AND DIRECTION OF CULL J (ON SLAVERY, TRAFFICKING AND PROPENSITY)
[1] Mr Matamata was tried over five and half weeks on 24 charges: 11 charges of trafficking in human beings by arranging the entry of complainants into New Zealand
R v MATAMATA [2020] NZHC 677 [2 April 2020]
by deception (the trafficking charges),1 and 13 charges of dealing in slaves (the slavery charges).2
[2] At the commencement of week three of the trial, I issued a minute in which I canvased the basis of the proposed question trail in respect of the two types of charges (the trafficking charges and the slavery charges) and proposed a legal direction for the slavery charges.3 Accompanying the minute, I attached relevant material on the definition of contemporary slavery, together with definitions gleaned from the most recent cases and The Bellagio-Harvard Guidelines on the Legal Parameters of Slavery.4 I invited Counsels’ submissions on that material and, over the ensuing two weeks, Counsel made submissions and suggested amendments to each of the draft question trails in respect of the charges and the proposed direction.
[3] On 11 March 2020, prior to the Crown and defence closings, I issued a further minute in which I provided Counsel with the finalised question trail and, to assist Counsel in their closings, the refined basis of the legal direction I proposed to give to the jury.5 Crown Counsel, Mr Walker, had asked if the question trail could be made available to the jury prior to closing addresses, to assist both Counsel and the jury. With the consent of both Counsel, I supplied the question trail to the jury with an explanation that this was my document and it was provided to them to assist in understanding Counsel’s addresses, but that I would be directing them on the legal ingredients of the charges, as the question trail showed.
1 Crimes Act 1961, s 98D(1)(a). Seven of the trafficking charges were alleged to have occurred from July 2003 and before 7 November 2015 and were laid in accordance with s 98D before the enactment of s 5 of the Crimes Amendment Act 2015 on 7 November 2015. The four trafficking charges alleging trafficking after 7 November 2015 (charges 17, 19, 21 and 23) contain the amended wording (“knowing that the entry involved deceiving” the complainant), in accordance with amended s 98D(1)(a).
2 Section 98(1)(b), which was enacted on 1 January 1962 and subsequently amended on 3 April 2001. Although two of the slavery charges allegedly occurred prior to the 2001 amendment, in both versions s 98(1)(b) contains the same wording (“employs or uses any person as a slave, or permits any person to be so employed or used”).
3 R v Matamata HC Napier CRI-2018-020-003953, 24 February 2020 (Minute No 1).
4 Jean Allain and others The Bellagio-Harvard Guidelines on the Legal Parameters of Slavery
(Research Network on the Legal Parameters of Slavery, 2011).
5 R v Matamata HC Napier CRI-2018-020-003953, 11 March 2020 (Minute No 3). See also R v Matamata HC Napier CRI-2018-020-003953, 12 March 2020 (Minute No 4) where slight amendments were made to the legal elements of the direction.
[4] In closing, the Crown invited the jury to draw support from the evidence from all of the complainants to discern a pattern of the defendant’s conduct. Following discussion with Counsel and receipt of their respective memoranda, I advised Counsel that I would allow the invitation and gave a “mutually supporting” propensity direction. I explained that reasons were to follow.
[5] In this Reasons for Rulings, therefore, I deal with the legal rulings on the two types of charges as contained in the question trail and in my direction, as well as the reasons for the propensity direction. I cover the issues in the following order:
(a)the basis for my direction on dealing in slaves, including the legal definition of slavery and using a person as a slave, which in turn formed the basis for the ingredients in the question trail concerning the slavery charges;
(b)the basis for the question trail on the trafficking charges and my direction on trafficking in persons; and
(c)my reasons for the propensity direction on mutually supporting allegations from multiple complainants.
Dealing in slaves
[6] Conscious of the fact that this is one of the few times a prosecution has occurred in New Zealand under s 98 of the Crimes Act 1961 for dealing in slaves, I set out the basis for the ingredients in the question trail, as finalised with Counsel, and the authority for the legal definition of “slavery” and “using a slave”, as contained in my direction to the jury.
Background to legislation
[7] Section 98 of the Crimes Act was enacted on 1 January 1962 and was amended in April 2001 by s 3(2) of the Crimes Amendment Act 2001, which inserted the current definition of slaves.6 Section 98 provides:
6 Section 3(1) of the Crimes Amendment Act 2001 also amended s 98 of the Crimes Act, however
98 Dealing in slaves
(1)Every one is liable to imprisonment for a term not exceeding 14 years who, within or outside New Zealand,—
(a)sells, purchases, transfers, barters, lets, hires, or in any way whatsoever deals with any person as a slave; or
(b)employs or uses any person as a slave, or permits any person to be so employed or used; or
(c)detains, confines, imprisons, carries away, removes, receives, transports, imports, or brings into any place whatsoever any person as a slave or to be dealt with as a slave; or
(d)induces any person to sell, let, or give himself, or any other person dependent on him or in his charge, as a slave; or
(e)in any case not covered by paragraph (d), induces any person to sell, let, or give any other person into debt-bondage or serfdom; or
(f)builds, fits out, sells, purchases, transfers, lets, hires, uses, provides with personnel, navigates, or serves on board any ship or aircraft for any of the purposes in paragraphs (a) to (e); or
(g)for gain or reward gives in marriage or transfers any woman to another person without her consent; or
(h)is a party to the inheritance by any person of a woman on the death of her husband; or
(i)being a parent or guardian of any child under the age of 18 years, delivers that child to another person with intent that the child or his labour shall be exploited; or
(j)agrees or offers to do any of the acts mentioned in this subsection.
(2) For the purposes of this section—
debt-bondage means the status or condition arising from a pledge by a debtor of his personal services, or of the personal services of any person under his control, as security for a debt, if the value of those services, as reasonably assessed, is not applied towards the liquidation of the debt or if the length and nature of those services are not limited and defined
serfdom means the status or condition of a tenant who is by any law, custom, or agreement bound to live and labour on land belonging to another person and to render some determinate service to that other person, whether for reward or not, and who is not free to change that status or condition
the amendments relate to s 98(1)(e) and (f) and are not relevant to the present proceeding.
slave includes, without limitation, a person subject to debt-bondage or serfdom
[8] As the authors of Adams on Criminal Law note, slavery was prohibited throughout the British Empire by the Slavery Abolition Act 1833 (UK).7 Section 98 of the Crimes Act is derived from the Slave Trade Act 1824 (UK) and the Slave Trade Act 1843 (UK).8 Relevantly for the offending in this case, s 98(1)(b) has remained the same since the enactment of the section on 1 January 1962.
The meaning of “slavery”
[9] The Crown’s case under s 98 was that Mr Matamata organised the entry into New Zealand of the 13 complainants on a false representation that they would receive net income from Mr Matamata for horticultural work. There were four groups of complainants, the first of whom were brother and sister who came to New Zealand in December 1994, and the following three groups came respectively in 2003, 2015 and 2016. Having organised their future entry, the Crown’s case was that Mr Matamata then used those 13 complainants as slaves, contrary to s 98 of the Crimes Act.9
[10] Although “slave” is defined in s 98(2) as including a person subject to debt- bondage or serfdom, the definition did not have particular application to this case. The definition of “slave” and “using a person as a slave” therefore became critical to the trial. I found the following authorities and pieces of legislation helpful in my assessment of the modern definition of slavery.
[11] In R v K, the English Court of Appeal observed that in art 4 of the European Convention on Human Rights 1950, which provides that no one shall be held in slavery or servitude, slavery refers to the “status of a person over whom powers attached to the right of ownership are exercised”.10 The Court held that essence of the concept of
7 Simon France (ed) Adams on Criminal Law – Offences and Defences (loose-leaf ed, Thomson Reuters) at [CA98.02].
8 At [CA98.02].
9 Mr Matamata was also charged with trafficking in persons for 11 of the 13 complainants. The two complainants in the first group of complainants came to New Zealand in 1994 before the enactment of trafficking in persons under s 98D of the Crimes Act 1961.
10 R v K [2013] QB 82, [2012] 3 WLR 933 at [19]; and European Convention for the Protection of Human Rights and Fundamental Freedoms (opened for signature 4 November 1950, entered into force 3 September 1953), art 4.
“slavery” is treating a person as belonging to oneself, by exercising some power over that person as might be done over an animal or an object.11 This was reinforced in a number of cases in which the courts consistently required an exercise of a genuine right of ownership over a person and the reduction of the status of the individual concerned to an object.12
[12] Similarly in New Zealand, the Court of Appeal in R v Decha-Iamsakun held that the most appropriate definition of the word “slave” in s 98 of the Crimes Act is the primary definition in the Chambers English Dictionary as “a person held as property”.13 The Court canvassed the other dictionary definitions and reinforced that the property ingredient was to be preferred.
[13]In Australia, s 270.1 of the Criminal Code Act 1995 (Cth) provides that:
slavery is 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.
[14] Section 270.3 of the Australian Criminal Code provides that a person who intentionally “possesses a slave or exercises over a slave any of the other powers attaching to the right of ownership” commits an offence. Applying this provision, in R v Kovacs the Supreme Court of Queensland held the offence of slavery is not one constituted by the doing of prescribed acts.14 It is constituted, at least in that case, by a course of conduct which comprises a number of acts over an extended period.15
[15] In R v Tang, the High Court of Australia considered in detail s 270 of the Australian Criminal Code and the definition of slavery in the 1926 Slavery Convention.16 Its decision was the subject of considerable academic and legal dissertation, culminating in a group of experts who established The Bellagio-Harvard
11 At [39].
12 See, for example, Siliadin v France (2005) 43 EHRR 287 (ECHR) at [122], in which the European Court of Human Rights found that slavery was not made out where the evidence did not suggest that a genuine right of legal ownership existed.
13 R v Decha-Iamsakun [1993] 1 NZLR 141 (CA) at 144. 14 R v Kovacs [2008] QCA 417, [2009] 2 Qd R 51 at [41]. 15 At [41].
16 R v Tang [2008] HCA 39, [2008] 237 CLR 1; and Convention to Suppress the Slave Trade and Slavery (signed 25 September 1926, entered into force 9 March 1927).
Guidelines on the Legal Parameters of Slavery.17 Consistent with the High Court of Australia in R v Tang, these Guidelines favour the legal definition of slavery in the 1926 Slavery Convention, which provides slavery is the:18
… status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.
[16] The Guidelines set out the nature of the exercise of powers attaching to the right of ownership and reinforce that possession is foundational to slavery. They contain examples of how such powers of ownership are exercised to amount to slavery, such as using a person: "[h]aving established control tantamount to possession, the act of using that person will be an act of slavery.”19
[17] Jean Allain, from Queens University Belfast, is one of the members of the Research Network which devised the Guidelines. Allain has written extensively on contemporary slavery, and of his numerous articles and recent publications I found his chapter on “Contemporary Slavery and its Definition in Law” most helpful.20 In this chapter he acknowledges the High Court of Australia’s decision in R v Tang as giving the “most in-depth consideration” to the 1926 Slavery Convention definition of slavery,21 and explores what constitutes those “powers attaching to the right of ownership”. The purpose of the chapter is to provide a framework for a definition of modern slavery.
[18] Because of its relevance to the present case, I provided copies of "Contemporary Slavery and its Definition in Law”, the Guidelines and the compilation of definitions from the cases to Counsel, together with a draft direction adopting Allain’s understanding of the definition of slavery and the notion of using a person as a slave.22 After hearing from Counsel, I confirmed the content of my direction by minute.23
17 Jean Allain and others The Bellagio-Harvard Guidelines on the Legal Parameters of Slavery, above n 4.
18 Article 1(1).
19 Guideline 4 (b).
20 Jean Allain “Contemporary Slavery and its Definition in Law” in A Bunting and J Quirk (eds) Contemporary Slavery: Popular Rhetoric and Political Practice (1st ed, University of British Columbia Press, Vancouver, 2017) 36.
21 At 37.
22 Allain, above n 20, at 38-40.23 R v Matamata (Minute No 3), above n 5; and R v Matamata (Minute No 4), above n 5.
[19] To assist future modern slavery cases, I set out the contents of the direction on the condensed ingredients of “slavery” and “using a person as a slave” below.
The direction
Slavery
[20] Slavery has been abolished, so there is no legal right to own a person. By international convention, the modern definition of slavery is as follows:24
“Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership is exercised.”
[21]The Court of Appeal has determined subsequently that:25
“Slave” means a person held as property.
The “powers attaching to the right of ownership”
[22]As Allain explained in “Contemporary Slavery and its Definition in Law”:26
In any situation of ownership, the owner controls the thing owned. This is normally understood a[s] possession. Typically, possession means physical possession, but it can also mean the ability to control access to a thing, such as when a person possesses the content of their house by simply controlling access to that house by means of the front door key. With this in mind, slavery should be understood as the ability of one person to control another as they would possess a thing. Ownership implies such a background relationship of control.
[23] The link between ownership and slavery is therefore, in a word, control. In any situation of ownership, the owner controls the thing owned.
[24]He continues:27
Where a slave is concerned, this control is tantamount to possession. It is control exercised in such a manner as to significantly deprive that person of their individual liberty. Normally, this control is exercised through violence and later through threats of violence or coercion, but it may also emerge through deception and/or coercion. One need not physically control a person, in the same way that one need not physically possess the contents of one’s
24 The Convention to Suppress the Slave Trade and Slavery, art 1(1).
25 R v Decha-Iamsakun, above n 13, at 144.
26 At 39.
27 At 39.
house; control tantamount to possession of a person goes beyond their physical control.
In the language of the 1926 definition of slavery, possession is one of the powers attaching to the right of ownership. To exercise possession over a person is foundational to the concept of slavery. It is the hallmark of slavery. Slavery can only be present if possession is present; if control tantamount to possession is being exercised.
Using a person
[25] One of the powers attaching to the right of ownership is the ability to use a person. “Using a person” is a slavery offence in s 98(1)(b) of the Crimes Act - the section under which each of the slavery charges were brought in this case. Obviously, one person can use another and this will not always amount to slavery. Nevertheless, such use may amount to slavery if the background relationship of control is present to such an extent that it is tantamount to possession.28 By “using a person”, what is meant is the deriving of benefit from his or her service or labour.29
[26] Once control tantamount to possession has been established over a person, the act of using that person will be an act of slavery. “Using a person as a slave” involves an intentional course of conduct by the user, comprising a number of acts over a period of time, in which the user exercises power over a person as though that person was the property of, and under the control of, the user.
[27] Evidence of such use of a person may include the derived benefit from the services or labour of that person.30 The Crown’s case here is that the defendant derived a benefit from the complainants’ use and that this is an ingredient of these charges, as the Crown has addressed as part of its case.
Essential ingredients of slavery
[28] As is evident from the above analysis, the essential ingredient of slavery is that a person is held as property.31 Using a person as a slave involves an intentional use of power over that person, as though that person was the property and under the control
28 Allain, above n 20, at 40.
29 At 40.
30 At 40.
31 R v Decha-Iamsakun, above n 13, at 144.
of the user and deriving a benefit from that use. What the Crown says here is that in using the complainants as his property, the defendant derived a benefit from doing so.
[29] In relation to the particulars alleged under each charge, the Crown case is that one or more of these provide evidence of the defendant’s exercise of control over the complainants. The jury must be satisfied that one or more of these occurred, beyond reasonable doubt, but they do not have to be satisfied that all of the particulars are proved to that standard.32
Trafficking
[30] The Crown charged Mr Matamata with 11 charges of trafficking in respect of 11 of the complainants.33 Mr Matamata was charged with trafficking in persons under s 98D(1)(a)(ii) of the Crimes Act, which provides:
(1)Every person is liable… who arranges, organises, or procures—
(a)the entry of a person into, or the exist of a person out of, New Zealand or any other State—
…
(ii)knowing that the entry or exist of the person involves 1 or more acts of coercion against the person, 1 or more acts of deception of the person, or both;
[31] The act of arranging entry involves Mr Matamata taking a material part in making it happen. “Material” means relevant to the complainants’ entry into New Zealand.
[32] An “act of deception” includes a fraudulent action.34 In other places in the Crimes Act, “deception” has been held to mean:35
(a)a false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and—
32 R v Kovacs, above n 14, at [41].
33 As noted, two of the complainants were brought to New Zealand prior to the enactment of the Crimes Amendment Act 2002 and s 98D of the Crimes Act 1961, in which trafficking in persons was made an offence. The charges relating to these complainants were slavery charges only.
34 Crimes Act 1961, s 98B.
35 Section 240(2)(a).
(i)knows that it is false in a material particular;
[33] The Crown’s case is that the acts of deception were the false representations allegedly made by Mr Matamata that the complainants would receive net income from horticultural work.36
[34] Section 98D(1)(a)(ii) does not require that Mr Matamata is the one that directly deceives the person involved. The section requires Mr Matamata to have arranged, organised, or procured the entry of the person, knowing that the entry involves an act of deception of the person. The act(s) of deception could have been carried out by himself, or he must know that someone else is carrying out act(s) of deception on the person involved in the entry. Thus, it is not necessary to establish that a false representation was made directly from Mr Matamata to the victims in this case, rather, it is simply necessary that a false representation has been made by Mr Matamata and he knows the complainants were deceived by that representation. Importantly, the complainants must be the persons deceived and the false representation must be a material cause of their agreeing to enter New Zealand.
[35] The question trail reflects the above legal approach and was amended prior to Counsel giving their final addresses.
Propensity evidence
[36] During the Crown closing, the Crown invited the jury to look at the evidence in relation to each charge in four ways; firstly, to look at the evidence in relation to the particular complainant and the particular charges; secondly, to consider the reciprocal nature of the trafficking charge and the slavery charge and look at the evidence in relation to the complainant in respect of both charges because “they are two sides of the same coin”; thirdly, to look at the evidence within the complainants’ respective groups because they support what happened to each other within the group; and lastly, to take into account “a pattern across the evidence” of all 13 of the complainants to
36 In respect of two victims, the Crown’s case initially was that, as well as false representations that they would receive net income from horticultural work, Mr Matamata falsely represented that they would also receive schooling in New Zealand. The Crown did not pursue the schooling aspect for either complainant as one of them did not understand he was coming to New Zealand for schooling, and in respect of the other, Mr Matamata did provide schooling for him in New Zealand, until he was 16 years old.
provide corroborative support for the evidence of a particular complainant or group of complainants.
[37] These last two invitations to the jury about how to look at the evidence are considered propensity evidence.37 They are evidence of acts, events and circumstances with which Mr Matamata is alleged to have been involved that tend to show Mr Matamata’s propensity to act in a particular way or to have a particular state of mind.38 Under s 43 of the Evidence Act 2006, the prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value which outweighs the risk that it may have an unfairly prejudicial effect on the defendant.39
[38] Following the Crown’s closing, I raised with Crown Counsel whether the Crown intended to seek a propensity direction on whether it could invite the jury to consider the evidence as propensity evidence under s 43 as none had been sought and no propensity application had been made. Mr Walker confirmed that the Crown sought a propensity ruling, in the nature of mutually supporting allegations.
[39] After hearing Counsel on Friday 13 March 2020, I asked that the Crown make its request in writing with reasons for seeking a mutual allegation propensity direction. The defence, while not consenting to the Crown’s request, indicated that the defendant would not be unfairly prejudiced by the propensity evidence because, due to the numerous discussions between the defence and the Crown regarding the evidence to be presented at trial, the defence was well aware of the Crown’s position that there has been a pattern or regular type of conduct by defendant over the years. Mr Phillip stressed that the defence case has always been that there is not a pattern and the jury should be looking at each individual charge on its merits before taking into account a broad view of the evidence. Because the defence understood that the Crown case was run on the basis of a propensity by mutual allegation, Mr Phillip did not consider, on the evidence adduced, that there was a basis to overcome a propensity argument in opposition.
37 T (CA702/2012) v R [2013] NZCA 505 at [12]-[16].
38 Evidence Act 2006, s 40(1)(a).
39 Section 43(1).
[40] On the following Monday, however, the defence filed a late memorandum in response to the Crown’s memorandum filed on Friday 13 March, setting out its opposition to using the evidence as propensity evidence and any related propensity direction that the Court might be minded to make. The defence indicated that it would close on the basis there was no pattern of conduct or offending and that the jury should not look across the board at other complainants’ evidence or the history of complainants’ allegations.
[41] Following the defence closing and before I gave my direction, I saw Counsel briefly to advise that I had received the defence memorandum and that I was incorporating both the Crown and defence arguments in relation to a propensity direction. I was, however, allowing the evidence to be used as propensity evidence and issuing a propensity direction. In the circumstances, I was unable to give reasons and I now give those reasons.
Legal principles
[42] As noted, s 43 of the Evidence Act 2006 provides that the prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value which outweighs the risk that it may have an unfairly prejudicial effect on the defendant.40 When assessing the probative value of the propensity evidence, the Judge must take into account the nature of the issue in dispute,41 and may also consider the frequency with which the relevant acts, events or circumstances occurred, the connection in time and similarity between the relevant acts, events or circumstances, the number of persons making similar allegations against the defendant (and whether they may be the result of collusion or suggestibility) and the extent of the unusualness of the act, events or circumstances.42
[43] When assessing the prejudicial effect of the evidence on the defendant, the Judge must consider whether the evidence is likely to unfairly predispose the fact-
40 Section 43(1).
41 Section 43(2).
42 Section 43(3).
finder against the defendant, and whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts.43
The parties’ submissions
[44] In its memorandum seeking the propensity ruling and direction to the jury, the Crown’s submission focused on the similarities arising from the mutually supporting complainants’ evidence. These were submitted to be:
(a)a misrepresentation by the defendant regarding the net income that the complainants would receive by coming to work in New Zealand (for groups 1 to 3) or by coming to live with the defendant in New Zealand (for group 4);44
(b)the arrangement by the defendant of the complainants’ entry into New Zealand including the payment for airfares and travel documentation such as visas and passports (and in the case of group 4, obtaining the orders for adoption);
(c)the retention by the defendant of the net income earned by the complainants from horticultural work once in New Zealand;45
(d)restrictions on the complainants’ freedom of movement;
(e)restrictions on the complainants’ communication; and
(f)actual or threatened violence for breaching rules or standards.
[45] The Crown submitted that these similarities mean that the evidence of each complainant has a high probative value on the allegations involving the other complainants and this probative value outweighs the risk of an unfairly prejudicial
43 Section 43(4).
44 With the exception that, for one complainant, the misrepresentation was that she would come to school in New Zealand (though it does not give rise to a trafficking charge as it predates the offence provision coming into force).
45 Again with the exception of one complainant being that she was required to perform household chores.
effect. It relied on the recent decision of R v K to support this conclusion, in which the Supreme Court held that the high probative value of the proposed propensity evidence outweighed any prejudicial effect where there were two incidents, both with similar unusual features and other significant similarities.46
[46] In its memorandum of opposition, the defence maintained its rejection of the Crown’s claim of a pattern of behaviour across the grouping of the complainants. The defence outlined its position as follows, as it has always been:
(a)No misrepresentation was given by the defendant regarding net income to lure the complainants to New Zealand.
(b)Financial costs of air travel and visas were met by the defendant’s family resources, but the choices of visas were a matter for the visitor through family members and later the assistance of two others – for group 3 in particular.
(c)Group 4 individuals were “adopted” with the intent to embrace each as part of the Matamata family, not as visitors or guests holding an expectation of building individual wealth.
(d)One individual came to New Zealand to be enrolled in school. It was his performance at school which caused numerous absences and an unofficial withdrawal from the school for two to three months before being enrolled in 2019, in the hope that his focus may improve. His position is distinct from the group 1-3 individuals.
(e)Another victim was not invited to come to New Zealand for education or for paid employment.
(f)From groups 1-3, nine complainants (excluding one of them) came to be exposed to and experience New Zealand life (including rugby opportunities for one). No intention existed to encourage the
46 R v K [2019] NZSC 46, 1 NZLR 561.
complainants to come to New Zealand on a foundation of a promise of money (immediately payable or otherwise).
(g)There were no restrictions on a complainant’s freedom of movement or communications.
(h)There was no violence or threat of violence being imposed for breaches of any perceived rule.
[47] In terms of using the evidence as propensity evidence, the defence submitted that the jury would find it difficult to separate the propensity evidence from one charge from evidence relating to the next active charge it is to determine. It submitted this would lead to a risk that the jury would give disproportionate weight to the propensity evidence and unfairly predispose the jury against the defendant. Mr Philip referred to this as a “swamping effect”, where weaknesses of the prosecution evidence against one complainant are saturated by stronger evidence against another complainant. The defence submitted that any propensity directions given to the jury would not alleviate the prejudice already presented to the jury by the Crown.
Analysis
[48] In this case, the Crown brought 24 charges in respect of 13 complainants. All 13 complainants came and gave evidence in respect of those charges. This is not a typical case where the Crown is seeking to adduce additional or further propensity evidence about a defendant that is not currently before the jury. Rather, the Crown is seeking a ruling and subsequent direction to the jury that they may consider the evidence of each of the complainants in a particular grouping to support individual complainants’ evidence in that grouping, and further that they may consider the evidence of all of the complainants across the board to show a pattern of the defendants conduct which may support the evidence of each of the individual complainants.
[49] In my view, the similarities in the conduct of the defendant toward each of the four groups of complainants is overwhelming. Those similarities are:
(a)the complainants all come from the same or nearby village, with the exception of group 2 being extended relatives of the defendant’s family;
(b)each charge of dealing in slaves contained the same particulars, being the four main planks of the Crown’s case as evidence of the defendant’s control over the complainants – with the one exception, as set out above;
(c)in relation to the trafficking charges, the Crown alleges the same act of deception for each complainant, namely the false representation that the complainants would receive net income from the defendant for horticultural work - with the one exception, as set out above.
(d)the evidence at trial was consistent in showing that same method of control of the complainants by the defendant;
(e)the same or closely similar acts of violence, violent behaviour and threatening behaviour were given in evidence by all the complainants consistently - the only exception was in group 2, where one of the victim’s presence was described by another victim as a shield or protection from the defendant’s violence; and
(f)the evidence from the complainants was strong and although some details were confused with the passage of time, such confusion was over minor dates and sequences and was not significant.
[50] Turning to the other considerations under s 43(3) of the Evidence Act, the probative value of propensity evidence increases with the number of acts that demonstrate the defendant’s propensity and their frequency,47 and the probative value is strengthened when the acts comprising the propensity evidence are closely connected in time with the acts constituting the offence.48 There is no doubt that in
47 Sections 43(3)(a) and (d).
48 Section 43(3)(b).
this case, the frequency of the propensity evidence, the number of complainants alleging similar conduct by the defendant, and the connection in time between many of the complainants increase the probative value of the propensity evidence. Further, the circumstances which constitute the offences are unusual, and all 13 complainants gave consistent evidence in respect of both the slavery charges and the trafficking charges, with the variations on the trafficking charges relating to whether the representations were made first to the parents or relatives of the complainants and then ultimately to them.
[51] I also gave consideration to whether the allegations made by all 13 complainants may have been a result of collusion or suggestibility.49 From the way in which the complainants gave their evidence, even with the restrictions of giving evidence through interpreters, it was clear that they were recalling events and incidents which happened to them. Each complainant could describe the events that occurred to them in detail, particularly the incidents of violence related to their individual situations, and these aspects varied depending on the complainants. This was amplified in cross-examination, and where complainants were cross-examined as to whether they had talked to each other about the evidence the answer was consistently no. I was satisfied that there was no risk of collusion, but in any event, the jury had to assess each of the charges individually and the credibility of the complainants in respect of each.
[52] In such circumstances, I considered that the evidence had a high probative value because the evidence from each of the complainants was so robust and convincing. This was not a case where resorting to propensity evidence was a means of supporting weaker evidence from the complainants. I was satisfied that the probative value clearly outweighed any unfairly prejudicial effect and added to the individual evidence of each of the complainants. Unlike Mahomed v R,50 this was not a case where the Crown was seeking to lead additional evidence. It was a substantial prosecution in which 13 complainants all gave robust evidence of what had occurred to them and what occurred over the period of the time at which the charges arose. It
49 Evidence Act 2006, s 43(3)(e).
50 Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145.
gave rise to the overwhelming conclusion that this was a pattern of conduct by the defendant.
[53] Weighing any prejudicial effect of the evidence on the defendant, I was satisfied that the evidence was unlikely to unfairly predispose the jury against the defendant or give disproportionate weight in reaching a verdict to the evidence of the defendant’s other acts or omissions, because the whole Crown case was premised on the basis of a pattern of conduct by the defendant from 1994 through to 2017. The same features were factors in each of the charges relating to each of the complainants and the jury had 24 charges with which to separately consider the evidence.
[54] On this basis, I gave a direction on the way the jury could draw on the evidence from mutually supporting complainants. If the jury found the alleged pattern existed, they could take it into account in assessing the evidence of a particular complainant. After Crown Counsel raised the matter, I also called the jury back to reinforce that because they may find the defendant guilty on one charge, this did not mean that he was guilty on the others.
Propensity direction
[55] As the minority in the Supreme Court held in Mahomed v R, where the Crown is relying on propensity reasoning and in doing so is invoking ideas about coincidence or probability, a propensity evidence direction to the jury is required.51 Taken largely from Mahomed v R, the propensity direction for mutual supporting complainants requires that the Judge sets out for the jury both the Crown’s contentions that the defendant’s behaviour follows a pattern, and the defence position that no pattern is established.
[56] In as case such as this where the evidence overwhelmingly indicates a pattern of conduct, the direction reinforces the need for the jury to pause before they look to the evidence of other complainants and ensure first that the defendant is guilty of each charge individually. In not giving a mutually supporting direction, the risk is that the jury would inevitably look at the similarity of the other complainants without regard
51 Mahomed v R, above n 50, at [91].
to the dangers of using propensity evidence, particularly as the allegations and particulars of each charge are the same.
[57] For all of those reasons, I considered it was prudent to give a mutually supporting allegation propensity direction. I was satisfied that the jury was to be directed that each charge is its own trial and separate considerations and verdicts are required. The propensity direction also reinforced that the jurors first have to accept that the similarities or pattern actually exist before using the evidence as propensity evidence. As noted, I also recalled the jury on the Crown’s suggestion to expressly tell them that just because they might find the defendant guilty on one charge, that does not mean that he is guilty on all charges.
Cull J
Solicitors:
Elvidge & Partners, Napier for the Crown
Messrs Bramwell Bate Solicitors, Hastings for the Defendant
3
0