Trafficking of women for sexual purposes: Research and Public Policy Series - No. 95 

• Overview of prosecutions to date
• Issues that have arisen in Australian prosecutions to date

Overview of prosecutions to date

As at 31 January 2008, the CDPP had received briefs of evidence from the AFP concerning 29 defendants alleged to have committed trafficking offences (under Divisions 270 and 271 of the Criminal Code (Cth). Of these:

• matters involving 15 defendants are still before the courts (that is, at the committal, trial, sentencing or appeal stage). This includes eight defendants in Victoria, four in New South Wales and three in Queensland
• the CDPP discontinued the prosecution of trafficking offences against 11 defendants due to insufficient evidence. This number includes the four co-defendants in the Kwok trial (Kwok, Ong, Tan & Yoe) and the three co-defendants in the Xu trial (Xu, Tran & Qi). In relation to the remaining four defendants: trafficking charges were dropped against one person but another charge was pursued; and charges were dropped against the remaining three on the basis that there was insufficient evidence to support a prosecution
• matters involving three defendants have been finalised. This includes:
• Paul Pick (co-accused with Wei Tang), who was acquitted on eight charges related to slavery following a jury trial in Victoria. The jury was unable to reach a verdict in relation to two other slavery charges. The CDPP discontinued proceedings against the defendant after determining there was insufficient evidence to prosecute the remaining two counts of slavery
• Yogalingham Rasalingam, who was acquitted of one count of trafficking a person under section 271.2(1B) of the Code following a jury trial in New South Wales. He was convicted of one count of dishonestly influencing a Commonwealth public official contrary to s 135.1(7) of the Code
• 'DS' (R v DS [2005] VSCA 99), who pleaded guilty to three counts of possessing a slave, and two counts of engaging in slave trading, under section 270.3 of the Criminal Code.

As at 31 January 2008, seven defendants had been convicted for offences under Divisions 270 and/or 271 of the Criminal Code, in relation to four matters. The status of these cases is as follows:

• In 2006, Joseph Sieders and Somsri Yotchomchin were convicted of 'conducting a business involving the sexual servitude of another', following a jury trial in New South Wales. Sieders was sentenced to a maximum of four years imprisonment and Yotchomchin was sentenced to a maximum of five years. The defendants have appealed their conviction and sentence. As at 31 January 2008, the appeal had not been heard.
• In 2004, 'DS' pleaded guilty to three counts of possessing a slave, and two counts of engaging in slave trading. DS was initially sentenced to a maximum nine years imprisonment, which was reduced to six years on appeal.
• Kanakporn Tanuchit and Trevor McIvor were each convicted in 2007 of five counts of possessing a slave and five counts of using a slave (20 counts in total) following a jury trial in New South Wales. As at 31 January 2008, the defendants had not been sentenced.
• Zoltan and Melita Kovacs were each convicted in 2007 of one count of possessing a slave and one count of using a slave (four counts in total) following a jury trial in Queensland. They were sentenced to a maximum of eight and four years imprisonment respectively, for slavery. The defendants have lodged an appeal against the conviction and sentence. As at 31 January 2008, the appeal had not been heard.

In addition, Ms Wei Tang was convicted of slavery offences following a jury trial in Victoria. Her conviction was quashed on appeal and a retrial ordered (R v Wei Tang [2007] VSCA 134 and 144). The appeal raises several legal issues and the CDPP has appealed to the High Court on those issues. The appeal was heard in May 2008 (The Queen v Tang [2008] HCATrans 180 and 181).

Issues that have arisen in Australian prosecutions to date

Small number of cases

Australian laws regarding trafficking in persons are relatively new. To date, few cases have run the full course of the legal system or resulted in prosecution. For example, the trial of Ms Wei Tang was one of the first prosecutions under Australian anti-trafficking laws. Ms Tang was first arrested in May 2003. Following an initial trial, a retrial, a successful appeal by the defendant, and a further appeal by the CDPP, this case was still before the courts in 2008. Prosecutors noted that it is difficult to draw out trends, both in terms of issues that might commonly arise in trafficking prosecutions or in terms of responses that might help address these issues, when there have been so few cases, and so few have run their course.

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Prior inconsistent statements

Prosecutors report that prior inconsistent statements have been a major challenge in the majority of Australian prosecutions. The existence of prior inconsistent statements is a legitimate ground on which to challenge the credibility (or believability) of a witness. In all the Australian trafficking cases, the alleged victims have been crucial witnesses. If an alleged victim is not believable, for example, because their story has changed over time, this can cause the whole prosecution case to collapse when there is no other supporting evidence.

For example, in the trial of Xu, one of the defence lawyers noted that the alleged victim had signed a statement in her first interview with police, which was taken at Villawood Detention Centre. This was followed by a subsequent interview, and as many as five or six further signed statements (transcript of R v Tran, Xu & Qi, 6 April 2005). The clear implication from the defence counsel was that the victim had changed her story many times, so her evidence could not be trusted.

In several cases, the prosecutor for the Crown has sought to diffuse the power of any prior inconsistent statements by allowing the alleged victim to explain the reasons for the inconsistency in their own words. This can be compelling, and give the court an added insight into the reality of the alleged victim's situation. For example, in the Xu trial, defence counsel drew attention to the alleged victim having apparently confused the names of several of the co-accused, in her initial interview with police. On this basis, the defence counsel accused the alleged victim of having fabricated her story (transcript of R v Tran, Xu & Qi, 7 April 2005). However, the prosecutor for the Crown elicited further evidence from the victim during re-examination. She explained the inconsistency as follows:

Disclosure

Failure to fully disclose all materials relevant to the prosecution was a major issue in one case (Kwok). In criminal proceedings, the defence and prosecution have to 'disclose' (or identify) to the other party and to the court all documents that might have a bearing on the case. This includes a wide range of documents, and not only those documents that will be specifically referred to in court. In particular, both sides have to disclose any documents that might help or harm either their case or the other party's case.

Part way through the Kwok trial, it became apparent that some relevant DIAC and AFP documentation had not been disclosed. As a result, much court time was occupied by production of documents that should have been produced during the disclosure process before the trial started. This included documents about payments made to witnesses. The trial judge, Justice Keleman, noted that these payments could either be considered as appropriate to facilitate the prosecution, or as providing a powerful inducement to give false evidence. On day 68 of the hearing, the trial judge said the case had become untenable and the trial was aborted.

Victims may not have 'clean hands'

In several Australian prosecutions, the credibility of alleged victims of trafficking has been attacked on the basis that they themselves do not have 'clean hands'. For example, in the Xu case, defence counsel focused on the fact that the alleged victim had applied for and signed a Tourist Visa application, despite knowing she would be working when she got to Australia. In Sieders & Yotchomchin, defence counsel focused on the fact that one of the key witnesses had not paid tax on earnings she had made while working in the sex industry (transcript of R v Johan Sieders & Somsri Yotchomchin, 29 June 2006).

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Reliance on stereotypical views

In at least one case, defence counsel has tried to undermine an alleged victim's credibility, or introduce doubt into the mind of the jury, by relying on what are arguably stereotypical views about migrants, sex workers and women. For example, in the Xu case, defence counsel suggested the alleged victim had fabricated her story so that she would not be deported from Australia; and that she had collected telephone numbers from her clients in the hope they would marry her so she could remain in Australia (transcript of R v Tran, Xu & Qi, 8 April 2005). The prosecutor sought to counter the impact of this line of questioning by leading evidence from the victim during re-examination about to the fact that she had chosen to return to Thailand, even though she had been made aware that she could probably access a visa to remain in Australia. Different defence tactics were engaged in the Sieders & Yotchomchin trial, where defence sought to present the victims as canny business women who had knowingly entered into commercial arrangement, at the conclusion of which they would be free to continue to work in the sex industry and earn money for themselves (R v Sieders & Yotchomchin [2006] NSWDC 184).

Importance of corroboration

Australian prosecutors have highlighted the importance of corroborating the victim's account as much as possible. While corroboration might come from a range of sources, prosecutors note that any 'objective' evidence is particularly valuable. Such evidence has included:

• transcripts of intercepted telephone calls between the defendants
• records of money transfers
• documentation such as diaries and payment books
• photographs of premises
• records from mobile telephone towers confirming an individual's movements.

Protections for witnesses differ across jurisdictions and may not be automatic

Over the past 20 years, research studies have drawn attention to the fact that giving evidence in court can itself be a traumatic and frightening experience, and that victims and other witnesses need better protection in court. This is particularly the case where the crime involves a sexual element. Relevant issues include the potential for unrepresented defendants to personally cross-examine witnesses (including the victim), the trauma or intimidation that can occur when witnesses have to sit opposite the offender in court, and harsh or inappropriate cross-examination tactics. Today, various protections are available under state and territory laws, including for victims who give evidence in sexual assault matters.

There are no comparable protections available under Federal law. As a result, in trafficking cases, prosecutors have sought to rely on state laws (where these can be applied to federal offences) and the common law. Because of legislative differences, there is potential for considerable disparity across jurisdictions in the protections available for witnesses. For example, protections that might be available in New South Wales may not be available in Victoria. Also, protections that might be available automatically in one jurisdiction might have to be applied for in another. To add further complication, different courts have different rules and facilities for witnesses.

The risk involved in relying on common law arguments about the need for witness protection measures were seen in Kwok. In that case, the prosecutor for the Crown applied for a non-publication order for the names and identities of all the complainants in that case. The District Court of New South Wales agreed to make a non-publication order for one of the complainants on the basis that she had a similar status to an informant. However, the District Court refused to make similar orders for the other complainants. This issue was appealed to the New South Wales Court of Criminal Appeal. The court held that the District Court did have the power to make the non-publication order on the basis that the order was necessary for the administration of justice. That is, without non-publication orders, victims would be discouraged from reporting or giving evidence about sexual servitude matters, due to the risk of shame and stigmatisation (R v Kwok [2005] NSWCCA 245).

Witnesses may also need protection where disclosure of their identity would place them in danger. This situation has arisen in Australia, where a defendant in one case has acted as a witness for the Crown in relation to several other prosecutions. In the 'DS' case, prosecutors successfully argued that the defendant's name should be suppressed on public policy grounds (transcript of The Queen v DS, County Court Criminal Jurisdiction, Melbourne, 22 December 2004).

Cases do not match community stereotypes of 'slavery' and 'sex slavery'

Prosecutors noted that it is challenging to convince a court or a jury that a situation involves 'slavery' or 'sexual servitude' when the situations do not match community stereotypes of what these situations should 'look like'. In particular, while some Australian cases have involved the alleged victim being literally locked inside a room, or physically restrained, this has not always been the case. In several cases, the alleged victim has also had an apparent degree of freedom. For example, they may have had access to a mobile telephone. In most cases, restraint has involved less visible factors, such as debt, fear of violence, psychological coercion and control.

For example, in Sieders & Yotchomchin, the defendants were charged and convicted for conducting a business involving the sexual servitude of others, namely four Thai women who were subject to debt contracts of around $45,000 each. The Crown case was that the women were not free to cease providing sexual services because they feared harm against themselves and their families in Thailand, and feared deportation. The defence claimed the situation was nothing more than a commercial arrangement between the defendants and the alleged victims, who would be free to start earning money for themselves once they had paid their debts. However, the court rejected this argument. In the judgment of Bennett SC DCJ, there were several flaws with this argument. Principally, it did not take account of the fact that the women were at any point liable to deportation, and could only discharge their debt if they remained hidden (R v Johan Sieders & Somsri Yotchomchin [2006] NSWDC 184).

In Wei Tang (The Queen v Wei Tang [2006] VCC 637), Justice McInerney accepted that there was no evidence that the alleged victims in that case had been held under lock and key. However, Justice McInerney found that due to a combination of circumstances, each alleged victim, while not locked in the premises, was 'effectively restrained by the insidious nature of their contract'. Justice McInerney suggested that to comprehend their circumstances, it was relevant to ask the rhetorical question:

Ms Tang successfully appealed the court's decision. The Supreme Court of Victoria Court of Appeal found that the judge's directions to the jury on the issue of intention or knowledge were not adequate to allow them to decide. Ms Tang's conviction was quashed and her sentence set aside. The High Court granted the CDPP special leave to appeal this decision, and hearings were held in May 2008. One of the key issues in this case is the meaning of 'slavery' in the Criminal Code (The Queen v Tang [2008] HCATrans 180 and 181).

Prosecutors note that it can be helpful to go 'back to basics' in court by referring to the definitions of trafficking found in the United Nations Trafficking Protocol. The protocol is clear that 'consent' is nullified when the trafficking situation has involved deception, coercion or other means. Prosecutors note that it can be helpful to draw out the inherent unfairness in situations, for example, by focusing on the illusory nature of the enormous debt that can be arbitrarily increased, and the inherent power imbalances in situations. This can be drawn out through examination of witnesses, which means the information is presented to the court in the victim's own words.

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Time frames

Prosecutors noted that in several Australian cases, a significant amount of time had passed between the initial arrest and the court date. For example, a prosecutor from Victoria described a case where the defendant had been arrested in 2004 and, as at July 2007, a court date had not been set. The delay was due to a backlog in the court system in that jurisdiction. The prosecutor noted that in Victoria, time standards apply to sexual assault matters but that these time standards do not cover trafficking cases. A prosecutor from New South Wales noted that time standards apply in all criminal cases in that jurisdiction. Prosecutors noted that this is just one example of the way that differences between jurisdictional laws can play out in federal trafficking prosecutions.

Cases can also extend over a long time as a result of the appeal process. For example, Ms Wei Tang was arrested on 31 May 2003. At the time of writing, the hearing into the matter had concluded and a judgment was pending. The High Court's consideration of the case may result in judicial guidance on several of the slavery provisions in the Criminal Code. While noting that court backlogs and long lead times caused by appeal processes are not specific to trafficking prosecutions, prosecutors did note that extended delays may have an impact on the willingness of a victim to participate as a witness. For example, it is natural that victims will want to get on with their lives. The more time passes, the greater the risk this will occur. Extended delays may also affect people's memory. In court, witnesses are required to provide great detail about the events in question; however, it is naturally difficult to recall events that took place several years ago.

Risk of linking visas, victim support and participation as a witness

Prosecutors noted that victim support measures, including visa regimes for victims as witnesses are vital. However, they also noted the need to manage these issues carefully as part of the investigation and prosecution process. In several Australian cases, defence counsel has sought to undermine witness testimony by drawing attention to the witness having immunity from prosecution, access to a visa or entitlements under the victim support program.

To minimise the risk that a victim might be seen to have been 'bought' as a witness by the inducement of a longer-term visa, the practice has developed whereby the AFP will delay seeking a Witness Protection (Trafficking) Certificate from the Attorney-General until after completion of the criminal justice proceedings. This effectively delays consideration of whether to move the victim onto a longer-term visa until after court processes are resolved, thereby minimising the risk that a defence counsel could successfully argue that a victim has been bought by the inducement of a long-term visa. However, the impact of this approach on victims of trafficking was also noted. Victim support workers note that lack of certainty about migration status is a source of concern for their clients. Without a permanent visa, their clients are remaining in Australia, without access to their children or families, all of which increases stress and isolation. As criminal justice processes can stretch out over several years, victims of trafficking may be in limbo about their migration status for several years. DIAC noted there is nothing in the Migration Regulations to prevent consideration of the grant of visas at an earlier stage.

Court familiarisation and court support

Prosecutors noted the importance of court familiarisation and in-court support for suspected victims of trafficking who are giving evidence (an issue that was also raised by AFP investigators). While emphasising that victim support workers should not seek to answer legal questions, prosecutors emphasised the importance of victim support workers having capacity to communicate with their clients (including where the victim's first language is not English), a sound knowledge of Australian legal and court processes and a clear understanding of what their role as an in-court supporter should be.

Translation

In Victoria, there appears to be a lack of Thai language translators with sufficient qualifications for translating court processes. This has impacted on the conduct of court cases, including scheduling of court dates around the availability of translators. The small number of translators can also have an impact where multiple translators are required. For example, both the defendant and the victim may need access to a translator to talk to legal counsel in the breaks during court processes. It would not be appropriate to use the same translator for both purposes. The same issue has not arisen in New South Wales, where there appears to be enough translators to facilitate court processes.