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  • Unreported Judgment

Re Melita Kovacs

 

[2008] QCA 131

 

 

SUPREME COURT OF QUEENSLAND

 

CIVIL JURISDICTION

 

MUIR JA

MACKENZIE AJA

JONES J

 

 

Application No 334 of 2008

 

APPLICATION FOR BAIL BY MELITA KOVACS

 

 

TOWNSVILLE

DATE 29/05/2008

 

 

ORDER

 

 

MUIR JA:  The applicant was convicted on 5 December 2007 after a trial in the Supreme Court of one count of arranging a marriage to obtain permanent residence, one count of possessing a slave and one count of using a slave.  She was sentenced to terms of imprisonment for these offences of 12 months, four years and four years respectively.  A non-parole period of 18 months was set in respect of the four year terms.

 

The applicant has appealed against conviction and sentence.  Her appeal and that of her husband and co-accused, Zoltan Kovacs, was to be heard in these sittings of the Court of Appeal at Townsville.  The hearing was adjourned because of the view taken by the parties that arguments concerning the construction of section 270 of the Criminal Code Act 1995 (Cth), of significance for the determination of the appeal, had been considered by the High Court of Australia recently in an appeal from the Victorian Court of Appeal decision of the R v Wei Tang [2007] 16 VR 454.  The High Court which heard argument over two days has not yet given its decision in that matter.

 

However, Chief Justice Gleeson was a member of the Court and as he retires at the end of August 2008, a decision is likely to be handed down within the next few months.

 

The principles applicable to the grant of bail pending appeal against a conviction for a criminal offence are well established.  After conviction bail should be granted only in exceptional circumstances.  Authority for that proposition may be found in numerous cases including Ex-parte: Maher [1986] 1 Qd R 303 at 308 and also Chamberlain v The Queen (1983) 153 CLR 514 at 519.  The principle underlying this approach is that to suspend or defer a sentence before the hearing of an appeal "is to invest the verdict of the jury with a provisional quality and that to grant bail in such a case is to whittle away the finality of the jury's findings and to treat the verdict merely as a step in the process of appeal."

 

The applicant, who was born in the Philippines, is 50 years of age.  She married Mr Kovacs in 1996 and moved to Australia in 1997.  She is an Australian citizen and has five children, the youngest of whom are aged seven, eight and 10 years respectively.  The applicant and her husband operated a takeaway food store at Napranum, an Aboriginal community near Weipa.

 

In order to dispose of this application it is unnecessary, I think, to go any further into the facts surrounding the subject offences.  Of more immediate interest is the provisions of the Code in relation to slavery.  Section 270.1 of the Code provides, "Slavery is the condition of a person over whom any or all of the powers attaching to the rights of ownership are exercised including where such a condition results from a debt or contract made by the person."  Section 270.2 declares slavery to be unlawful.  Section 270.3 provides, "(1) A person who, whether within or outside Australia, intentionally (a) possesses a slave or exercises over a slave any of the other powers attaching to the right of ownership...is guilty of an offence."

 

The offence is punishable by imprisonment for 25 years.  A slave, for the purposes of s 270.3 is a person in a condition of slavery as defined by s 270.1.  The meaning of the subject provisions is far from clear.  In particular the concepts of ownership and possession are not readily applicable to one person's dealings with another.  That aspect of the legislation was the subject of detailed discussion in the reasons of Justice Eames in The Queen v Wei Tang.

 

The reasons of Justice Eames were relied on by counsel for the applicant.  Particular reliance is placed on his Honour's identification of the four elements which, in his Honour's view, constitute the offence under section 270.3(1)(a).  In the appeal to the High Court in Wei Tang the Commonwealth contended that Justice Eames' analysis was wrong and that there were, in fact, only two elements of the offence. 

 

Mr Henry SC, who appears for the respondent, pointed out that it may be that if the High Court concludes that there are, in fact, only two elements to the offence, the outcome may not assist the applicant's case on appeal.  I intend to say a little more about that point shortly.

 

The trial Judge summed-up to the jury by reference to the four elements identified by Justice Eames.  He, and any other Judge summing-up on such an offence, faces an extremely difficult task.  That was acknowledged in the course of the reasons in Wei Tang

 

Mr Lynham, who appears for the applicant, advanced in his outline of submissions a number of specific criticisms of the trial Judge's summing-up.  In oral argument, however, he dwelt on the uncertainty of meaning of the subject provisions and on the respondent's challenge in the High Court to the analysis of Justice Eames. 

 

As I mentioned, the summing-up here proceeded on the basis of the accuracy of that analysis.  There is no doubt that the meaning of the subject provisions is unclear.  That and the respondent's own attack in Wei Tang on the underlying premise of the summing-up indicates that the applicant's prospects of success on appeal are substantial depending, of course, on the construction given the subject provisions by the High Court.  That is impossible to predict.

 

The provisions under consideration are of an extremely distinctive nature and for a jury to be properly instructed in relation to them obviously requires that the true meaning of the subject provisions be identified with clarity and precision.

 

It is also a strong consideration here, as Mr Lynham points out, that it is unlikely that any appeal to this Court could be heard before late this year and by that time the applicant will have served a substantial period of the 18 months before which she is eligible for parole.  She will have served almost all of her sentence on the marriage arrangement count.  It is possible also that an appeal may not be heard this year. 

 

All of those matters, in my view, lead to the conclusion that the applicant has made out a case of exceptional circumstances.  Accordingly, I would order that bail be granted.

 

MACKENZIE AJA:  I agree with what Justice Muir has said.  The offences under section 207 involve complex concepts of intentionally possessing a slave and exercising a power attaching to the right of ownership of a person.  This involves the application of principles of property to a human being.  It is a concept that has previously been unexplored except in the case of Wei Tang, which is the case now reserved in the High Court.

 

The argument in the High Court ranged over wide field.  It included what the principle underlying the section comprises.  One issue explored particularly was the scope of the term in conventions that form at least part of the philosophical and perhaps legal underpinning of the section.  One of the issues seems to be how far from the conventional understanding of slavery the legislation extends.  There is also a compounding of the difficulty of the matter by issues concerning the meaning and application of the criminal responsibility provisions of the Commonwealth Criminal Code

 

If the only issue was the application of a settled or perhaps even a reasonably predictable principle to the facts of the case, or whether the summing-up on those principles was adequate, the case would plainly not be one where exceptional circumstances were shown.  But this case, in my view, goes beyond that into a category which is exceptional and perhaps unique.

 

I would also just wish to say that the outcome in this case is to be distinguished from what, in my view, would be likely to happen in a case where a well settled principle had been reconsidered by an intermediate Court of Appeal and an application for leave to appeal or an appeal against that decision was pending in the High Court.  I agree with the order proposed by the presiding Judge.

 

JONES J:  Yes, I agree that the exceptional circumstances have been made out and I agree that the applicant should be admitted to bail.

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Editorial Notes

  • Published Case Name:

    Application for bail by Melita Kovacs

  • Shortened Case Name:

    Re Melita Kovacs

  • MNC:

    [2008] QCA 131

  • Court:

    QCA

  • Judge(s):

    Muir JA, Mackenzie AJA, Jones J

  • Date:

    29 May 2008

Litigation History

No Litigation History

Appeal Status

No Status