Kanbut v R [2022] NSWCCA 259

Kanbut v R [2022] NSWCCA 259 · Read the judgment on AustLII

Catchwords: Tendency – Inter-count tendency – Where tendency alleged all the relevant offending conduct – Slavery

In this decision the CCA has observed that a tendency notice which simply asserts all the allegations in the prosecution case is unlikely to meet the objectives of the tendency rule, and examined the injustice which can arise when the jury directions from such a faulty tendency notice do not correct for the Crown’s error.

The applicant was convicted after trial of six counts relating to slavery: she was alleged to have recruited two Thai nationals, ‘X’ and ‘Y’, bringing them into Australia to work as sex workers in brothels. X had allegedly been blackmailed by a man who took naked photos of her and threatened to publish them on the internet if she did not cooperate. She was taken to the airport and flown to Australia where she shortly thereafter met the applicant. Y had previously worked as a sex worker in a number of other countries before being deported back to Thailand. She wanted to come to Australia. She met the same man that had allegedly been involved in X’s case. He took naked photos of her, seized her passport, and she travelled to Australia where she met the applicant. The applicant allegedly took the two women’s passports and told them the passports would not be returned until they repaid her a debt of $45,000, which was to be worked off through their work as sex workers. In response, the defence case was that X and Y lived with the applicant’s home as though it were a boarding house, and they freely pursued sex work; in other words, the response was that there was no coercion or control by the applicant, and that she had merely assisted the women in their undisputed sex work.

Following her conviction, the applicant appealed on a range of grounds; this summary only deals with the ground which asserted that the tendency direction given by the trial judge was erroneous.

The Court (Beech-Jones CJ at CL, Adamson and Campbell JJ agreeing) observed that the trial judge’s tendency direction (based on the Crown’s tendency notice) was striking in that it comprised every particular of the conduct in respect of each of the offences on the indictment, and no other conduct. Moreover, each particular of the tendency (there were eight in all) asserted conduct in relation to both X and Y. For example, ‘the accused imposed on [X] and [Y] a debt of $45,000’ (at [61] and [63]). The utility of a tendency direction in a case such as this is that, if properly formulated, it would be a means of enabling the jury to use acceptance of evidence in relation to one complainant in order to assist in accepting evidence in relation to the other. By combining the conduct from both complainants together when formulating each of the particulars of the alleged tendency, the direction wholly failed to meet that purpose (at [65]). Moreover, because the tendency alleged all of the particulars of the alleged offending, if the jury were satisfied of the relevant acts in relation to both victims, then the Crown would not need to rely on the existence of tendency to prove its case, because it would already be proved (at [66]).

The jury were also directed that if they could not find that any of the acts occurred then they must set aside the tendency. But if the jury could not find that those acts occurred, then they would not just put aside the tendency, but would be obliged to acquit the accused, because there would be nothing left of the Crown case (at [68]).

The trial judge’s direction to the jury that the evidence of the tendency was separate from the specific allegations in the indictment was wrong. It was not separate from the specific allegations in the indictment, it was the evidence of the specific allegations in the indictment (at [69]-[71]).

In the circumstances, the appeal was allowed, and a new trial ordered. The Court determined to publish this judgment online because of its importance, despite submissions by both parties that the reasons ought not go online until any retrial is completed. There is, however, is an observation in the judgment flagging that the reasons may yet be taken down from Caselaw NSW in advance of any new trial ([91]); if you can’t find it, that is likely the reason why. Readers are reminded that ‘restricted’ judgments are available to legal practitioners via some subscriptions to the Judicial Commission ‘JIRS’ service (such as at the Law Society Library).