A slave to the law

When mens rea requires intention, problems may arise from ignorance of the law being no excuse. This has been illustrated in drug possession cases, concerning the extent of knowledge of the nature of the substance possessed as a component of the intention to exercise possession: see eg R v Metuariki [1986] 1 NZLR 488; (1986) 2 CRNZ 116 (CA). The law deems you to know all the names of the substances listed in the relevant legislation creating the drug offences. But what if you thought that the substance was not a drug but simply a dietary supplement? You might think that, and also know that consuming the substance would give you a buzz: does that amount to mens rea? What if you thought that the thing was not any sort of drug, but that it was something you were not allowed to possess?

I was reminded of these issues when reading today’s decision by the High Court of Australia, R v Tang [2008] HCA 39 (28 August 2008). The main issue here was the meaning of intention in the offences of “ intentionally … possess[ing] a slave or exercis[ing] over a slave any of the other powers attaching to the right of ownership”: Criminal Code (Cth) s 270.3(1)(a). Pursuant to s 270.1, “slavery is the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised …”. Does mens rea include knowledge that the powers that were exercised amounted to powers attaching to the right of ownership?

At trials (there were two trials, the first resulted in no verdict), the juries had been concerned about this, as revealed in their questions (123 – 124):

“Does the defendant have to have known what the definition of a slave is ‘to intentionally possess a slave’ as stated in the indictment?”

“To intentionally possess a slave is it necessary for the accused to have knowledge that her actions amount to slavery, or is it sufficient that the accused only have knowledge of the conditions she has imposed (ie slavery has not entered her mind) and the law has decided those conditions amount to slavery?”

The bench of seven delivered three reasoned judgments: Kirby J dissented on the main issue but agreed on subsidiary matters that need not concern us here. The leading judgments were by Gleeson CJ and Hayne J.

Kirby J agreed with the answers to the juries questions that had been proposed by the Court of Appeal, which had set out the following on the main issue (89):

“ … the accused must have possessed the worker in the intentional exercise of what constitutes a power attaching to a right of ownership, namely, the power of possession. For that to be the case the accused must be shown to have regarded the worker 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. However harsh or oppressive her conduct was towards the worker it would not be sufficient for a conviction if, rather than having possessed the worker with the knowledge, intention, or in the belief that she was dealing with her as though she was mere property, the accused possessed her in the knowledge or belief that she was exercising some different right or entitlement to do so, falling short of what would amount to ownership, such as that of an employer, contractor, or manager.”

This highlights the view (rejected by the majority in the High Court) that mens rea includes knowledge of what the law defines as a right of ownership. This approach is analogous to requiring, for the mens rea of drug possession, knowledge of what substances are listed in the relevant legislation.

Gummow CJ addressed mens rea (48 – 49) and held:

“ … If a person is known by an accused to possess the qualities that, by virtue of s 270.1, go to make that person a slave, then the state of knowledge relevant to intention, and therefore intention itself, may be established regardless of whether the accused appreciates the legal significance of those qualities.”

The Judges must have had in mind the analogy with drug offences, as He Kaw Teh v R [1985] HCA 43 was cited. There, mens rea for importing narcotics was held to include knowledge of the nature and character of the object imported, in the sense that it was a narcotic. He Kaw Teh was not cited in Metuariki (decided 20 May 1986), which has a more detailed consideration of what is the guilty knowledge element of mens rea. These are, nevertheless, difficult to analyse, but they seem to come down to knowledge of either the identity (name, whether common or scientific) of the thing, or knowledge of its effects when consumed.

No doubt comparisons will be made by commentators between He Kaw Teh and Tang: the apparent inconsistency is plain; if importing a narcotic is a serious enough offence to require extension of mens rea to include knowledge of the narcotic nature of the thing imported, why doesn’t slavery require knowledge that the rights being exercised are those that are recognised in law as attaching to ownership. If the law acknowledges the exculpatory effect of ignorance that a substance is a narcotic – so that such ignorance is not ignorance of the law – why doesn’t the law grant exculpatory effect to ignorance that a right is one that the law attaches to ownership?

Now we are four!

Good grief, was that four years of blogging?
Just an amusing hobby.

Appellant accuses counsel

In Muirhead v R (Jamaica) [2008] UKPC 39 (28 July 2008) the Privy Council allowed an appeal against conviction for murder because of fundamental irregularities that created an unacceptable risk that the trial had not been fair. The issue was identification, and the only significant evidence against the accused was from a child eye witness.

The irregularities were of the kind that only become apparent after the trial: an observer would have thought that there was nothing out of the ordinary in the way the trial had been conducted. Significantly, the appellant’s claim that the errors had occurred was not contradicted by any explanation tendered to the appellate court (the Board) by counsel who represented the appellant at trial.

The appellant swore in an affidavit to the Board that he had not received advice on the consequences of giving a statement from the dock instead of (as he had done at his first trial, in which the jury were unable to agree) giving evidence. He said junior counsel had suddenly indicated to him, while he sat in the dock moments before the decision had to be made, that senior counsel felt he should not go into the witness box. He received no advice about what a statement from the dock entailed or what he should talk about, or about the weight it might have compared with evidence from the witness box.

Also, there was no explanation tendered by counsel for failure at the second trial to call or adduce evidence of the accused’s good character, when such evidence had been called at the first trial.

The Board stressed the importance of counsel keeping a record of instructions (27). That would not assist the appellate court if counsel refused to divulge what they were, but there are ways of making counsel co-operate (new counsel on appeal summoning earlier counsel to give evidence after waiver of privilege by the client). Here there was only silence, and the Board did not speculate as to why.

The duty of counsel to raise good character was emphasised by Lord Carswell and Lord Mance in a concurring judgment (34). Failure to do so here had significance where the appellant should have given evidence at trial, as the judge’s direction on good character may have affected the jury’s assessment of his evidence, especially here where at the first trial the jury had failed to agree. Therefore, the appellant may not have received a fair trial.