JOSEPH AUGA MATAMATA v R [2022] NZSC 16

JOSEPH AUGA MATAMATA v R [2022] NZSC 16 [3 March 2022]NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF THENAMES OF THE COMPLAINANTS REMAINS IN FORCE.IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 110/2021[2022] NZSC 16BETWEEN JOSEPH AUGA MATAMATAApplicantAND THE QUEENRespondentCourt: William Young, O'Regan and Ellen France JJCounsel: N P Chisnall and L A Elborough for ApplicantS K Barr and H S Cunningham for RespondentJudgment: 3 March 2022JUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONS[1] The applicant was found guilty after a High Court jury trial on 10 charges ofhuman trafficking and 13 charges of dealing in slaves, affecting 13 differentcomplainants between 1994 and 2019.1 He was sentenced to 11 years' imprisonment.2[2] The applicant appealed against conviction to the Court of Appeal. TheSolicitor-General appealed against the sentence imposed on the applicant. The Courtof Appeal dismissed the appeal against conviction and allowed the Solicitor-General's1 He was acquitted on one further charge of human trafficking.2 R v Matamata [2020] NZHC 1829 (Cull J) [HC judgment].appeal against sentence only to the extent of imposing a minimum period ofimprisonment of five years.3[3] The applicant now seeks leave to appeal to this Court against conviction. Hesays that the Court of Appeal erred in two respects:(a) its conclusion that the jury was properly directed as to the elements ofhuman trafficking in terms of s 98D(1) of the Crimes Act 1961; and(b) its construction of the legal definition of "slave" for the purposes ofs 98 of the Crimes Act.[4] The facts are summarised in the Court of Appeal judgment.4 For presentpurposes, it suffices to say that the applicant ran a business supplying labour toorchards. The complainants were individuals brought to New Zealand from theapplicant's community in Samoa and put to work in the orchard business. Theapplicant arranged flights and visas for the complainants. The Crown alleged at trialthat the applicant brought the complainants to New Zealand on the false promise thatthe money they would earn would be theirs after they had repaid the cost of bringingthem to New Zealand and an allowance for lodging with him. But, although theyundertook the work required of them, the applicant retained their income, restrictedtheir freedom of movement, restricted their communications and used actual orthreatened violence for breaching his rules or standards.Human trafficking[5] Section 98D of the Crimes Act was amended in 2015.5 Seven of the 10 humantrafficking charges on which the applicant was convicted relate to the pre-2015 periodand are therefore governed by the old s 98D. Under the old s 98D, a person is guiltyof human trafficking if he or she "arranges the entry of a person into New Zealand by 1 or more acts of coercion against the person, 1 or more acts of deception of the3 R v Matamata [2021] NZCA 372 (Miller, Clifford and Collins JJ) [CA judgment] at [86].4 At [4]–[8].5 By s 5 of the Crimes Amendment Act 2015. For brevity, we will refer to s 98D as it was beforeand after the 2015 amendment as the old s 98D and the new s 98D respectively.person, or both". Under the new s 98D, liability attaches when a person "arranges,organises, or procures the entry of a person into New Zealand knowing thatthe entry of the person involves 1 or more acts of coercion against the person, 1 ormore acts of deception of the person, or both".[6] The applicant highlights the difference in wording between the old and news 98D (especially the omission of the additional words "organises, or procures" in theold s 98D in circumstances where the formula "arranges, organises, or procures" wasused in another paragraph of the old s 98D and in other allied provisions).6 He wishesto argue that this difference means that for the pre-2015 charges, the Crown wasrequired to prove that the offender directly arranged the complainants' entry bycoercion or deception, whereas after 2015 it was sufficient to prove that the offenderhad procured entry through a third party, knowing that deception or coercion exists.7Text, purpose and legislative history are all said to support the applicant's position.[7] The applicant argues that this is a point of public importance, notwithstandingthe amendment made in 2015, because historical offences may come to light, whichwould have to be dealt with under the old s 98D. He also argues that the applicantmay suffer a miscarriage of justice if leave is not granted.[8] The argument the applicant wishes to make involves a consideration of thelegislative history of the old s 98D and the amendment leading to the new s 98D andrelies substantially on the textual difference between them. However, the argumentcould affect the outcome only if the Court was satisfied that the wording of the olds 98D(1)(a) excluded acting through a third party, knowing that the person enteringNew Zealand was being deceived or coerced. We do not consider there is any realprospect of such an interpretation of the old s 98D being adopted.6 For example, the old s 98D(1)(a) (being the offence provision) referred to arrangements for entryinto New Zealand, whereas subsection (1)(b) created liability for persons who arranged, organisedor procured the reception, concealment or harbouring in New Zealand of a person, knowing thatentry was arranged by one or more acts of coercion or deception or both.7 This distinction mattered because on the Crown case, the applicant arranged entry by paying forflights, but a third party arranged visas and only some of the complainants were spoken to by theapplicant in Samoa (the applicant said he never spoke to complainants directly): CA judgment,above n 3, at [48].[9] That being the case, we do not consider that there is any risk of a miscarriagein the present case.8 Nor do we consider the point is a matter of general or publicimportance, given the old s 98D applies only to pre-2015 offending and given ourconclusion that there is no substantial difference between the old and new s 98D.9Slavery[10] The 13 slavery charges were brought under s 98(1)(b) of the Crimes Act: theCrown case was that the applicant had "used" each complainant "as a slave".[11] The trial Judge directed the jury that a slave is a person held as property,meaning that the person is subject to controls tantamount to possession. The Judgesaid that the control must be tantamount to possession so as to "significantly deprive"a person of liberty. The applicant argued in the Court of Appeal that this direction waswrong. He said the jury should have been told the Crown had to prove as an essentialelement of the offence that the person was entirely deprived of their freedom andliberty. The Court of Appeal rejected this.10[12] We see no appearance of error in the trial Judge's direction or the Court ofAppeal decision. The Court of Appeal decision provides guidance for future cases.As the applicant's counsel accepted, the authorities and academic literature treatcontrol (defined by reference to possession) as a proxy for slavery. The approach takenin the Courts below reflected that. We do not consider any matter of general or publicimportance arises and we do not consider there is any risk that a substantialmiscarriage of justice may have occurred.11[13] The applicant also wishes to challenge on appeal to this Court the Court ofAppeal's approach to the mens rea requirement of the slavery offence. The Court ofAppeal followed the approach of the High Court of Australia in R v Tang.12 Thedirection given by the trial Judge was, the Court of Appeal said, more conservative8 Senior Courts Act 2016, s 74(2)(b).9 Section 74(2)(a).10 CA judgment, above n 3, at [33].11 Senior Courts Act, s 74(2)(a) and (b).12 R v Tang [2008] HCA 39, (2008) 237 CLR 1 at [42]–[51] per Gleeson CJ, with whom Gummow,Hayne, Heydon, Crennan and Kiefel JJ agreed. Kirby J dissented on the mens rea requirement.than necessary. We see no appearance of error in the Court of Appeal's analysis.Accordingly, no mater of general or public importance arises13 and there is noappearance of a miscarriage arising from the more favourable (from the applicant'spoint of view) direction given to the jury.14[14] We do not consider it is necessary in the interests of justice to give leave toappeal.[15] The application for leave to appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent13 Senior Courts Act, s 74(2)(a).14 Section 74(2)(b).