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?

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