The Queen v Tang

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gummow J,Kirby J,Hayne J,Heydon J,Crennan J,Kiefel J
• Judgment Date: 28 August 2008
• Neutral Citation: 2008-0828 HCA B,[2008] HCA 39
• Docket Number: M5/2008
• Date: 28 August 2008

The Queen

Appellant

and

Wei Tang

Respondent

[2008] HCA 39

Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ

M5/2008

HIGH COURT OF AUSTRALIA

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 Act 1958 (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’.

Criminal Code (Cth), ss 5.1, 5.2, 5.6, 270.1, 270.2, 270.3.

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)

ORDER

Appeal allowed.

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.

Special leave to cross-appeal on the third ground in the proposed notice of cross-appeal refused.

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.

The appellant to pay the respondent's costs of the application for special leave to appeal and of the appeal to this Court.

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.

1 GLEESON CJ. Following a trial in the County Court of Victoria, before Judge McInerney and a jury, the respondent was convicted of five offences of intentionally possessing a slave, and five offences of intentionally exercising over a slave a power attaching to the right of ownership, namely the power to use, contrary to s 270.3(1)(a) of the Criminal Code (Cth) (‘the Code’). She was sentenced to a lengthy term of imprisonment. The Court of Appeal of the Supreme Court of Victoria upheld an appeal against each of the convictions, quashed the convictions, and ordered a new trial on all counts 1. The prosecution, by special leave, has appealed to this Court. The respondent seeks special leave to cross-appeal against the order for a new trial.

2 The Court of Appeal rejected a number of grounds of appeal which, if upheld, would have resulted in an acquittal on all counts. It upheld one ground of appeal, which complained that the directions given to the jury were inadequate. The proposed cross-appeal raises three grounds. The first two grounds concern the meaning and constitutional validity of s 270.3(1)(a). Both grounds were rejected by the Court of Appeal. Logically, a consideration of those grounds should come before consideration of the Court of Appeal's decision on the directions given to the jury. Special leave to cross-appeal on those two grounds should be granted. It will be convenient to deal with them before turning to the prosecution appeal. It is also convenient to leave to one side for the moment the proposed third ground of cross-appeal, which is that the Court of Appeal erred in failing to hold that the jury verdicts were unreasonable or could not be supported having regard to the evidence.

The legislation

3 Chapter 8 of the Code deals with ‘Offences against humanity’. It includes Div 270 which deals with ‘Slavery, sexual servitude and deceptive recruiting’. Division 270, which was introduced by the Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999 (Cth), was based on recommendations made by the Australian Law Reform Commission in 1990 2. It includes the following:

‘270.1 Definition of slavery

For the purposes of this Division, 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.

270.2 Slavery is unlawful

Slavery remains unlawful and its abolition is maintained, despite the repeal by the Criminal Code Amendment (Slavery and Sexual Servitude) Act1999 of Imperial Acts relating to slavery.

270.3 Slavery offences

• (1) A person who, whether within or outside Australia, intentionally:

  • (a) possesses a slave or exercises over a slave any of the other powers attaching to the right of ownership; or

  • (b) engages in slave trading; or

  • (c) enters into any commercial transaction involving a slave; or

  • (d) exercises control or direction over, or provides finance for:

    • (i) any act of slave trading; or

    • (ii) any commercial transaction involving a slave;

  is guilty of an offence.

  Penalty: Imprisonment for 25 years.

• (2) A person who:

  • (a) whether within or outside Australia:

    • (i) enters into any commercial transaction involving a slave; or

    • (ii) exercises control or direction over, or provides finance for, any commercial transaction involving a slave; or

    • (iii) exercises control or direction over, or provides finance for, any act of slave trading; and

  • (b) is reckless as to whether the transaction or act involves a slave, slavery or slave trading;

  is guilty of an offence.

  Penalty: Imprisonment for 17 years.

• (3) In this section:

  slave trading includes:

  • (a) the capture, transport or disposal of a person with the intention of reducing the person to slavery; or

  • (b) the purchase or sale of a slave.

• (4) A person who engages in any conduct with the intention of securing the release of a person from slavery is not guilty of an offence against this section.

• (5) The defendant bears a legal burden of proving the matter mentioned in subsection (4).’

4 Later, at a time after the alleged offences the subject of these proceedings, a further offence described as ‘debt bondage’ was added to Ch 8 (s 271.8). That offence carries a lesser maximum penalty than an offence against s 270.3. It may be that the facts of this case would have fallen within s 271.8 had it been in force. If so, that is immaterial. There are many statutes, Commonwealth and State, which create offences of such a kind that particular conduct may fall within both a more serious and a less serious offence. There is a question, to be considered, whether the facts alleged in this case fall within s 270.3. If they had occurred at a later time, they might also have fallen within s 271.8. The two provisions are not mutually exclusive.

5 It is necessary also to refer to Ch 2 of the Code. It includes the following:

‘ Chapter 2 — General principles of criminal responsibility

Part 2.1 — Purpose and application

Division 2

2.1 Purpose

The purpose of this Chapter is to codify the general principles of criminal responsibility under laws of the Commonwealth. It contains all the general principles of criminal responsibility that apply to any offence, irrespective of how the offence is created.

…

Part 2.2 — The elements of an offence

Division 3 — General

3.1 Elements

• (1) An offence consists of physical elements and fault elements.

• (2) However, the law that creates the offence may provide that there is no fault element for one or more physical elements.

• (3) The law that creates the offence may provide different fault elements for different physical elements.

3.2 Establishing guilt in respect of offences

In order for a person to be found guilty of committing an offence the following must be proved:

• (a) the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt;

• (b) in respect of each such physical element for which a fault element is required, one of the fault elements for the physical element.

…

Division 4 — Physical elements

4.1 Physical elements

• (1) A physical element of an offence may be:

  • (a) conduct; or

  • (b) a result of conduct; or

  • (c) a circumstance in which conduct, or a result of conduct, occurs.

• (2) In this Code:

  conduct means an act, an omission to perform an act or a state of affairs.

  engage in conduct means:

  • (a) do an act; or

  • (b) omit to perform an act.

4.2 Voluntariness

• (1) Conduct can only be a physical element if it is voluntary.

• (2) Conduct is only voluntary if it is a product of the will of the person whose conduct it is.

…

4.3 Omissions

An omission to perform an act can only be a physical element if:

• (a) the law creating the offence makes it so; or

• (b) the law creating the offence impliedly provides that the offence is committed by an...