McIvor v R; Tanuchit v R [2009] NSWCCA 264

New South Wales Court of Criminal Appeal

CITATION: McIvor v R; Tanuchit v R [2009] NSWCCA 264 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 18 September 2009

JUDGMENT DATE: 28 October 2009

JUDGMENT OF: Spigelman CJ at 1; McClellan CJatCL at 48; Grove J at 49

Orders made on 18 September 2009: 1. Grant leave to rely on Ground Two of the Notice of Appeal for purposes of r 4 of the Criminal Appeal Rules. DECISION: 2. Appeal allowed. 3. Quash the appellants' convictions. 4. Order a new trial.

CATCHWORDS: CRIMINAL LAW – slavery – fault element – intention as to conduct – intentionally possessing slave – intentionally exercising powers attaching to right of ownership over slave – power to use – whether trial judge erred in directions on intention – direction on three types of intention – Criminal Code (Cth) ss 5.2(1), 270.3(1)(a) - CRIMINAL LAW – slavery – physical element – possessing a slave – exercising powers attaching to right of ownership over slave – power to use – correct use of indicia in establishing actus reus – whether trial judge erred in directions on indicia – Criminal Code (Cth) ss 270.1, 270.3(1)(a)

LEGISLATION CITED: Criminal Appeal Rules Criminal Code (Cth)

CASES CITED : R v Wei Tang [2007] VSCA 134; (2007) 16 VR 454 The Queen v Wei Tang [2008] HCA 39; (2008) 237 CLR 1

Trevor Frank McIvor (Appellant) PARTIES: Kanokporn Tanuchit (Appellant) Commonwealth Director of Public Prosecutions (Respondent)

FILE NUMBER(S): CCA 2007/00014356; 2007/00014355