SIEDERS, Johan v R; SOMSRI, Yotchomchin v R [2008] NSWCCA 187 | Case summary

SIEDERS, Johan v R; SOMSRI, Yotchomchin v R [2008] NSWCCA 187 | Case summary | Zoe

CATCHWORDS: CRIMINAL LAW - COMMONWEALTH OFFENCES - sexual servitude offences - conduct of business involving sexual servitude of other persons - appellants convicted of offences against s 270.6(2) Criminal Code Act 1995 (Cth) - whether verdicts unreasonable or cannot be supported having regard to the evidence - whether facts alleged by Crown insufficient to establish the offence charged - whether no evidence or no sufficient evidence that appellants had the required fault element with respect to the offence - where fault element is knowledge of or recklessness as to the sexual servitude - s 5.4 Criminal Code Act - COURTS AND JUDGES - trial judge's directions to jury - whether miscarriage of justice occasioned by direction that jury could convict the appellants if satisfied accused were reckless as to the sexual servitude - where Crown referred only in passing to recklessness in closing address - procedural unfairness - where experienced counsel for accused did not object to direction at trial - rule 4 Criminal Appeal Rules - where limited objection made only as to trial judge's use of the expression 'wilful blindness' - whether use of that expression created a potentially misleading impression in the mind of the jury - substantive unfairness - whether s 270.6(2)(b) Criminal Code Act creates two distinct offences, one with knowledge and the other with recklessness as its fault element - APPEALS - whether open on appeal to a convicted person to take the point that there was no evidence of essential element of the charge - where point not taken in court below - STATUTORY INTERPRETATION - construction s 270.6(2) Criminal Code Act - extrinsic materials as aid to construction - s 15AB Interpretation Act 1901 (Cth) - new offence of debt bondage - s 271.8 Criminal Code Act - whether legitimate to use a statute which amends a previously existing statute to construe the statute in its unamended form - where earlier and later legislation do not deal with the same topic - where later legislation had not come into operation at the time of the events to which the present charge relates - where later legislation has work to do independent of the work done by the earlier legislation - where no ambiguity in wording of s 270.6(2) that needs to be clarified by reference to the later legislation - STATUTORY INTERPRETATION - statutory definition of sexual servitude - s 270.4 Criminal Code - condition of person in sexual servitude - person 'not free' to take particular actions - whether person in question must actually have taken those actions at any time in the past - where lack of freedom must arise 'because of' the use of force or threats - whether phrase conveys the notion of a causal relationship actually in operation - whether force or threats must be used by the accused - what constitutes a threat of detrimental action - STATUTORY INTERPRETATION - whether s 270.6(2) Criminal Code Act creates two offences with different fault elements or a single offence with alternative fault elements - WORDS AND PHRASES - 'not free' - 'because of the use of force or threats' -'detriment' - 'involves the sexual servitude of other persons' - CRIMINAL LAW - SENTENCING - whether overall sentences and non-parole periods manifestly excessive - objective seriousness of offence - subjective circumstances of offender - parity - sentence imposed on co-offender - whether regard should have been had to penalty applicable to offence of debt bondage - whether sentence falls within permissible sentencing discretion

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The indictment against the appellant Somsri was identical, save only that instead of saying "namely a brothel" it said "namely brothels" . 3 The two appellants were sentenced on 8 December 2006. The appellant Somsri was sentenced to an overall term of 5 years with a non-parole period of 2½ years, each of which periods commenced on 9 July 2006. The appellant Sieders was sentenced to an overall term of 4 years, with a non-parole period of 2 years, each of which were to commence on 27 May 2006. The differing commencement dates of the sentences directly reflected differences in the period that each appellant had been in custody before being sentenced. 4 The provisions of the Criminal Code that are of central relevance to these appeals are: 270.4 Definition of sexual servitude (1) For the purposes of this Division, sexual servitude is the condition of a person who provides sexual services and who, because of the use of force or threats: (a) is not free to cease providing sexual services; or (b) is not free to leave the place or area where the person provides sexual services. (2) In this section: sexual service means the commercial use or display of the body of the person providing the service for the sexual gratification of others. threat means: (a) a threat of force; or (b) a threat to cause a person's deportation; or (c) a threat of any other detrimental action unless there are reasonable grounds for the threat of that action in connection with the provision of sexual services by a person. … 270.6 Sexual servitude offences (1) A person: (a) whose conduct causes another person to enter into or remain in sexual servitude; and (b) who intends to cause, or is reckless as to causing, that sexual servitude; is guilty of an offence. Penalty: (c) in the case of an aggravated offence (see section 270.8) - imprisonment for 19 years; or (d) in any other case - imprisonment for 15 years. (2) A person: (a) who conducts any business that involves the sexual servitude of other persons; and (b) who knows about, or is reckless as to, that sexual servitude; is guilty of an offence. Penalty: (c) in the case of an aggravated offence (see section 270.8) - imprisonment for 19 years; or (d) in any other case - imprisonment for 15 years. (3) In this section: conducting a business includes: (a) taking any part in the management of the business; or (b) exercising control or direction over the business; or (c) providing finance for the business." 5 Section 270.5 required there to be both a territorial nexus of a particular type with Australia, and an element of conduct outside Australia, before an offence is committed against s 270.6. A ground of appeal that contended that s 270.5 had not been complied with was abandoned by both appellants. 6 The Dictionary at the end of the Criminal Code contains the following definitions: " detriment includes any disadvantage and is not limited to personal injury or to loss of or damage to property. threat includes a threat made by any conduct, whether express or implied and whether conditional or unconditional." 7 I note that sections 80B-80E Crimes Act 1900 reproduce these provisions of the Code, save for section 270.5, and hence would catch conduct occurring wholly within New South Wales that was within the terms of sections 270.4 and 270.6 of the Code. However the present trial and appeals were conducted as though only the Code provisions were relevant.

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Uncontroversial Factual Matters 8 The appellant Somsri owned and managed three brothels, one in Strathfield and two in Parramatta. With his wife, the appellant Sieders owned and operated a brothel at Penrith. 9 The Crown called evidence from five Thai women concerning whom orders have been made not to disclose their identity. I shall refer to them (in the order in which they gave evidence) as AA, BB, CC, DD, and EE. The latter four had worked as prostitutes at these brothels during the period to which the indictments related, on the terms of a type of "contract" that lies at the centre of this case. AA, who was an older cousin of BB, had worked as a prostitute at the brothels pursuant to such a "contract" prior to the period to which the indictments related. 10 Each of the latter four women had entered into an agreement, while in Thailand, to provide sexual services in Australia. That agreement was with a Thai woman known as Montha or Pat, who recruited potential sex workers in Thailand, and then sent them to Australia pretending they were tourists. 11 All the women except BB were informed in Thailand that when they came to Australia they would be subject to a "contract" in the sum of approximately $45,000, which they were obliged to repay by earning an equivalent sum through prostitution in the brothels to which they were sent. BB's evidence was that she was informed of those matters in Australia. The "contract" sum had to be repaid before they could earn any money for themselves. One of the women, and a member of the family of another, were additionally required to enter into a written agreement in Thailand as to repayment of a (significantly lesser) sum of money. 12 Each of the women was accompanied, on the flight to Australia, by a male escort, who delivered them to one or other of the appellants, or to Sieders' wife. For the duration of the flight and their passage through Australian customs and immigration each of the women was given custody of a sum of money. However, upon passing through customs and immigration they were required to return that money. All the women bar one handed their passports and return airline tickets to either Somsri or Sieders, at the request of Somsri or Sieders. 13 On arrival in Australia the women were immediately taken to the brothel where they were required to work. The rules as to paying off their contracts were usually then explained to them. The women were told or given to understand that they would not receive any money in hand, and were not free to leave unless and until they had worked off their "contract" sum. The only exception to this was that very occasionally a customer might give them a tip (which the evidence said could be $5 to $20), that they were free to keep for themselves. 14 After arrival in Australia, Somsri or Sieders made arrangements for a solicitor/migration agent to make application on behalf of the women for a protection (refugee) visa on fictitious grounds. The making of such an application gave the women some standing under Australian migration laws, such that until the application was dealt with by the authorities the women would not be deported. In some cases, an amount said to be attributable to the cost of obtaining a visa was added to the "debt" that the women were required to work off. 15 No woman worked at the one brothel all the time. They worked sometimes at the brothels owned by Somsri, sometimes at Sieders' brothel, and sometimes at a brothel managed by someone else. They were taken from one place of work to another, often by Somsri. On some occasions they asked for, and were granted, permission to leave the brothel for a specific purpose. Otherwise, they lived in one or other of the brothels or (only for some of the women, and for them only occasionally) in the house of one of the brothel owners. Their food and sleeping accommodation were provided by the brothels. BB had a mobile phone (the bill for which was paid by AA), on which she could telephone people, including her family in Thailand. 16 Four of the five prostitutes who gave evidence were able to pay off their "debt", in periods ranging from 2 months and 20 days, to 7 months. Once the "debt" was repaid, these women continued working at brothels, though being paid for their services, and able to choose where they would work. 17 The woman who did not pay off all of her "debt" was BB. The Immigration Department sent people to the Strathfield and Penrith brothels on 20 May 2004 to check on the visas of the prostitutes. The immigration officials took some of the prostitutes away from the brothels. BB was one of the prostitutes detained in those raids. She was held in Villawood Detention Centre for a time, and later returned to Thailand. 18 There is evidence of sums of money being remitted by Sieders and Somsri to Pat. The dates and amounts, and the identities of remitter and remittee are established by documentary evidence. The Crown submits, without challenge by the appellants, that sums remitted by Sieders can be identified as being $9,595 relating to BB on 24 April 2004, and $8,625 relating to CC on 3 January 2004. As mentioned earlier, BB arrived in Sydney on 23 April 2004. CC arrived in Australia on 3 January 2004. 19 The Crown alleges, without contradiction by the appellants, that amounts remitted by Somsri to Pat can be identified as being $8,625 relating to BB on 23 April 2004, and $8,000 relating to EE on 23 February 2004. EE arrived in Australia on 23 February 2004. Other documentary evidence shows Somsri remitting $7,700 to Pat on 2 March 2004, and $6,800 to Pat on 3 March 2004, though those payments are not linked by the evidence to the arrival of any particular Thai woman. 20 The scale of charges according to AA and EE was $55 for fifteen minutes, of which the prostitute got $35. Half an hour cost $85 of which the prostitute got $50, and one hour cost $150 of which the prostitute got $85. The prostitutes were given credit for the full amount of their entitlement, without any deduction for tax. Thus paying off $45,000 would require the prostitute to perform 1286 fifteen-minute services, or 900 thirty-minute services, or 530 one-hour services. 21 DD was told that the rate of charges was $55 for fifteen minutes, of which the prostitute would get $30. Half an hour cost $75 of which the prostitute would get $45, and one hour cost $135 of which the prostitute would get $80. Though the reason for this discrepancy in rates was not explored in the evidence, DD was aged 37 at the time of the trial, and the other women were younger. At those rates, paying off $45,000 would require the prostitute to perform 1500 fifteen-minutes services, or 1000 half-hour services, or 563 one-hour services. 22 Each prostitute kept a record of her own earnings. As well, a record was kept by the brothel management.

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AA's Evidence 27 AA came from a country area in northern Thailand. She had been brought up by her uncle and aunt. That uncle and aunt were the parents of BB. They lived on a farm. The uncle had at some stage borrowed money from a bank for the purpose of his farming, but his farming venture had not been successful, and he was unable to pay the money back. Before AA left for Australia he was not strong, not well, and unable to work. 28 AA arrived in Australia on 18 May 2002. She came here under an arrangement whereby she had to repay $53,000. She paid that by working for a person called Gou, and when she paid it off she continued working as a prostitute, sometimes in a brothel owned by Somsri. She gave her evidence through a Thai interpreter. At the time of the trial she could not read English, and could speak English "a little". 29 AA kept in contact by telephone with her family in Thailand. In early 2004 AA was aware that "the family had no money". At some stage AA suggested to BB that she come to Australia to work as a prostitute, and gave some information about how to go about achieving that objective. The means that AA suggested did not produce results. AA told Somsri about the prospect of BB coming to Australia, and Somsri telephoned Pat in AA's presence. Somsri suggested to Pat that she contact BB, and gave her BB's telephone number. BB told AA as arrangements with Pat developed. 30 By April 2004 AA was living in an apartment of her own, but still working at Somsri's brothel. Somsri set the prices charged at that brothel. On 23 April 2004 Somsri collected AA and took her to the South Strathfield brothel to work. Later that day Somsri arrived there with BB. To AA's observation, BB was not well - she was coughing, had a runny nose, and after she made a telephone call home was homesick and crying. AA was cross-examined about BB's demeanour on the day BB arrived: "Q. Did she appear to you to be happy and comfortable about the idea of providing sexual services? A. She was just kind of nonplus." 31 Over the Anzac Day weekend BB telephoned AA and asked to be picked up, as she was not well. At that time BB was working at the Penrith brothel owned by Sieders. AA told BB she should ask Tu (Sieders' wife). BB telephoned AA back, saying that Tu had said that AA should ring Somsri. AA then telephoned Somsri, and asked if it was all right if she picked up BB. Somsri replied, "I have already talked to Tu, yes you can go and pick her up". When AA collected BB from the Penrith brothel BB had red eyes and a swollen face as if she had just been crying, and she appeared unwell. 32 BB stayed at AA's flat for two to three days. On the third day Somsri arrived at the flat. AA told her that BB was not well yet, and had her period. Somsri then said "let [BB] go and have a rest at the shop". (The brothels were sometimes referred to as "shops".) There was another conversation on that occasion where Somsri asked AA: "… would you like to buy [BB], we'll go half each. So I said "how much?". [Somsri] then said "Seventeen thousand. If you would like it, then we go half." I then said I did not have any money. [Somsri] then said to [BB] "pack your belongings and go and have a rest at the shop"". 33 Somsri then took BB with her. Also in that conversation Somsri said "… they bought the person for 17,000 and it was half with Phee Tu, should I want to buy the share I could buy their share of the half." ("Phee" is a Thai honorific that is sometimes placed in front of a person's name.) 34 AA gave evidence in cross-examination: "Q. It became obvious to you not long after your cousin commenced working in the sex industry that she was unhappy, would you agree with that? A. Yes." 35 On another day in early May 2004 AA and BB were both working at one of Somsri's brothels. Somsri asked AA "Please teach [BB] to work". AA then gave BB advice about how to make herself appear attractive to clients, so that the client would choose her. 36 Later in May BB telephoned AA and asked AA to pick her up. After BB had obtained permission from Somsri, AA collected her from another brothel that was run by an Asian man. AA delivered BB back to a different Somsri brothel the next morning. 37 After BB was seized by the Immigration authorities and taken to Villawood Detention Centre AA received a telephone call from Tu. AA's evidence was: "A. She said that [Somsri] had gone and visited [BB] at Villawood. Q. Yes? A. But security said that [BB] did not wish to meet anyone. Had [BB] said anything concerning the two of us or not. Q. That is what she asked you is that what you are saying? A. Yes. Q. What did you say? A. I said that I did not know. Tu then said that [BB] maybe some women at the Villawood Detention Centre said something to [BB] or not. If saying about myself to [Somsri] and [Somsri] and if I would come in to any problem because I was submitting an application as [Sieders'] fiancée. My children are here and if my children and myself, my family doesn't get anything from here then I would do something back to you and [AA's] family as well. Q. This is what Tu was saying to you, is that right? A. Yes."

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BB's Evidence 40 BB was aged 23 at the time of the trial. Documentary evidence showed she was born in May 1983, and so was aged 20 in April 2004. She gave evidence, in Thai, that she had a high school education. At the end of school she could speak a little English, but not much. She left to live in Bangkok with her elder brother at about the age of 20, and had a job selling porridge, in which she earned 5000 baht per month. She was aware that her cousin AA was in Australia working as a prostitute. Both BB's mother and AA asked BB if she would like to go to Australia to work in the sex industry. Though BB had never worked as a prostitute previously, she decided, after almost a year of deliberation, to come to Australia, and set about making arrangements. At the time of her decision she was concerned that the bank might take the family's home away, and they would have nowhere to live. She said "when I decided to come here I wanted to come and earn an income in order to help my family to be clear of debt." She was aware that when she went to Australia she would be working in a business which provided sex in return for money, but said she was not aware of the conditions in which she would have to work. 41 After the first set of arrangements for coming to Australia fell through, BB came in contact with Pat. Pat arranged for BB to enter into a sham marriage, obtain a passport in her new married name, open a bank account with money provided by Pat, and have a document purporting to be from an employer that falsely stated that she was an assistant manager with a salary of 8000 baht per month. On the basis of that documentation, and the representation that BB's "husband" would be staying in Thailand, Pat obtained for BB a visa for travel to Australia as a tourist for five days. 42 Pat told BB: "… that I had to find someone to come and sign a contract and that person has to be related or be siblings to me … she said that this contract would be for me that when I arrived here, should I ever escape, then the person who signed that contract would have to be responsible if I escape." 43 Two or three days before BB travelled to Australia she introduced her brother to Pat, and he signed a contract with her. At that meeting BB photocopied her brother's identification card, and, at Pat's request, gave that photocopy to her. BB said that she knew at that stage that she would owe some money in relation to the arrangements that had been made to send her to Australia, but she did not know the amount or how it would be paid back. 44 On the day of BB's flight to Sydney she travelled to the Bangkok airport. There she met Pat, who gave her an airline ticket, some money, and her passport. BB also met the man who was to accompany her to Sydney. She arrived in Sydney on 23 April 2004. Once in Sydney she went with the man to a hotel, and waited. He took back the money that Pat had given her. She was left with a bit over 200 baht (200 baht was worth about $7). She also had a personal ATM card, relating to a bank account that had no money in it. 45 Somsri arrived and collected her from the hotel in a taxi. She asked BB to hand over her passport and airline ticket, which BB did. In the course of the taxi ride Somsri telephoned Pat, and handed the phone to BB, who responded to a question from Pat about the time she had arrived there. They went directly to the brothel at South Strathfield. There, BB was provided with some clothing "short and also thin… the clothing that working girls had to wear to work". Somsri asked her to try them on and "at first I dare not", "when she asked me to try them on I did not want to try -- put them on because they don't look -- they don't look good." She was instructed, by both Somsri and AA, about how to greet clients. She was also advised by AA to keep her own record of clients serviced, to make sure that she was not cheated. On the first day she serviced one or two men. AA's boyfriend gave her a SIM card for her mobile phone. 46 She came to learn, after her arrival, that the figure that she had to pay was $45,000. Somsri gave her the working name of "Vivian". Somsri told her "that she had to move me to go and work at other places as well and for me not to … work at that place only". Somsri gave her no information about what days she had to work, or whether she would have any days off. 47 Apart from occasions when BB obtained permission to stay at AA's, and one occasion when she stayed at AA's without permission, BB slept at the brothel at which she had been working. 48 BB's first move away from Somsri's brothel was to Sieders' brothel at Penrith. Somsri told her "that I had to go and work about three or four days at Penrith and then she would come and pick me up to come back to the same place." 49 BB was cross-examined about that conversation: "Q. Didn't she say to you tomorrow morning there will be someone come and pick you up to work at Penrith for three days? A. It's the same thing. Q. And did you say 'Why do I have to go and work there'? A. Yes. Q. And did Somsri say 'Over there they haven't got enough staff, just go and help them out?' A. She did. Q. Did she say 'You don't have to worry, it'll be the same as working here'. Did she say that? A. Yes she did." 50 Sieders collected BB, and drove her to the Penrith brothel. Once BB had arrived there, she telephoned AA and asked to be picked up, as she was not well. BB handed the telephone to Tu, who then spoke to AA. Tu later made a telephone call to Somsri, after which AA and AA's boyfriend came to collect her. BB heard Tu say to AA "that she did not know what was wrong with me, that when I arrived I cried." (If AA's evidence that this occurred over the Anzac Day weekend was accepted, these events occurred in BB's first week in Australia.) 51 The Penrith brothel was located upstairs from a Thai restaurant. AA, the boyfriend and BB went there to eat. BB told AA that she would like to go home (meaning Thailand), that she no longer wanted to be here, and she asked AA to "do whatever that will facilitate me to go home". At that time two police officers walked into the restaurant, and BB asked AA "to please go and let the police know and come and arrest me and send me home." AA's response was to laugh, and to tell her to stop crying and eat. 52 BB agreed in cross examination with the proposition that "after a very short time of being in Australia you found yourself totally unsuited to the sex industry". 53 After BB had been at AA's flat for three or four days Somsri came to the flat and asked AA whether BB had fully recovered. AA said that she was better but not fully recovered. To that Somsri said that "today she was picking me up to go to work … I had had many days off already". Somsri then waited for BB to pack her things, and took her to one of Somsri's brothels. BB's evidence continued: "Q. Now when you were at your cousin's flat did you want to go with Somsri or not? A. No I did not. Q. Why did you go with her? A. It was necessary for me to go. Q. Why was it necessary for you to go? A. There was no other choice. Q. Are you saying that you had no other choice? A. Yes. Q. Why do you say you had no other choice? A. Because I did not want to work. Q. Why didn't you have a choice? A. Because I couldn't go anywhere. Q. Why not? A. I don't know how many days I was here then when the person said to me that I could not go anywhere. Q. Which person? A. [Somsri] told me as I asked a girl at work were talking about it. Q. Talking about what? A. That when you come and work here if you have not paid all your debts back yet you cannot go anywhere. Q. Who said that to you? A. [Somsri] also said that. Q. Who else said it to you apart from [Somsri]? A. The working girls who worked together with me told me. Q. Was this on the first day you arrived? A. I don't think it was the first day. Q. Was it said at Penrith? A. I knew from the shop at Strathfield and the people at Penrith also said that." 54 BB serviced five or six people that day. 55 When cross-examined about the passage of evidence that I have just set out she said: "Q. You were telling us there, weren't you, that when you come here to work if you hadn't paid the debt you weren't allowed to go anywhere, was that what you were suggesting? A. Yes, someone told me that when I come here had I not paid off all the debts yet I did not have any rights to go anywhere on my own. Q. Weren't you saying that it was [Somsri] … who said to you that you couldn't go anywhere unless you paid the debt off? Is that what you were saying in answer to those questions of the Prosecutor? A. Yes, she said that as well as other working girls had also told me that. Q. Can I specifically put this to you that the accused Somsri never ever said to you that you couldn't go anywhere unless you paid the debt off? A. Yes, I said that - I think that she said that because she said that if I didn't pay off all the debt yet I could not go anywhere, should I want anything I can ask someone else to buy it for me." 56 On occasions when she went to Penrith, Somsri told her that she was to go there, and Sieders came and picked her up. While at Penrith she slept at the brothel. Two or three times while she was at Penrith she did "escort work" which involved visiting clients at their home. On those occasions sometimes Sieders drove her to the home, and sometimes the client drove her. 57 On one occasion Somsri told BB that she would take her to get her visa extended. Somsri took her to be photographed, and she saw a solicitor. She signed a document, which she thinks was blank at the time she signed it. (It turned out to be an application for a protection visa, which told an elaborate and completely fictitious story about BB being a lesbian who was persecuted by extremist religious groups in Thailand, which caused her to fear to return.) 58 On three or four occasions she asked customers to help her. There was one Thai speaking man to whom she said (in Thai) "please help me get out of there, whatever you can do, please help me. I would like to go home." After initial reluctance, that man said he would help, and made a telephone call in her presence, and spoke to someone in English, but the impression of BB was that he was unable to make contact. She asked other non-Thai speaking customers at the South Strathfield brothel to help her, saying (in English) "help me please. I want to go home. I not in work no good." She gained the impression that they agreed to help her. She gave the number of her mobile telephone to two of the customers. Her evidence was: "Q. Why was it that you asked customers who saw you at the brothel to help you? A. I did not wish to do this type of work. Q. Why didn't you just walk away? A. The reason I did not just walk out because I remembered the word that Pat said to me that when I came to work in Australia should I escape, all the debts that would have to be borne by my brother. Q. And when you got to Australia, you were told I think you've told us that you owed $45,000, is that right? A. Yes. Q. Were you in a position to pay back $45,000? A. No. Q. What about your brother [name]? A. No he himself also had no ability to do so. Q. What did you think would happen if you walked out without paying back $45,000? … Q. What did you think would happen if you or your brother did not pay back the debt of $45,000? A. I thought that all of us would be in trouble including our parents. Q. What do you mean by in trouble? A. We had to find money to pay back the debt and I was also afraid that they would come and harm us. Q. Why was it that you decided to ask your customers to get immigration to arrest you, what advantage to you did you see from that course of action? A. I thought that they could protect me. Q. By doing what? A. I thought that if they could come and help me get out of there then I could go home. Q. When you asked the customers to help you did you think that anybody would know that you had asked for that course of action to take place? A. At first I was afraid that someone would learn about it. Q. And later? A. It was necessary for me to speak, had I not asked anyone to come and help me escape then I would have to work there forever." 59 Her cross-examination about that evidence was: "Q. Now when you used the expression 'should I escape' were you referring to avoiding the debt, not paying the debt, that is you not paying the debt? A. What I meant was should I escape and would not go to work or should I escape to go and work some place else. Q. But you knew that in that arrangement with Pat you would be responsible for the debt if it wasn't paid, that you were initially responsible for the debt if it wasn't paid, you understood that, didn't you? A. Is not me, it's my brother." 60 The cross examination included: "Q. Can I put this to you, that was the prime reason why you embarked on a plan to contact Immigration in the hope that you'd be deported back to Thailand? A. No, it's incorrect because I did not wish to work this type of work because I could not handle, I could not face it, handle it." 61 One or two weeks before BB was picked up by Immigration she was working at a brothel called "shop 10" owned by a Chinese person, not by Somsri or Sieders. She telephoned AA and asked to be picked up from that brothel. AA enquired why. BB said that she did not want to work, she was sick. AA asked whether Somsri knew about her wanting to go home. (The impression from the transcript is that "go home" in that context referred to leaving that particular brothel, not going back to Thailand.) BB said that she had not. AA said to give Somsri a ring and let her know that BB was asking AA to come and pick her up from the shop. The evidence continued: "Q. Did you ring the accused Somsri? A. I did. Q. What did you say to her? A. I said that I'm sick and I'm asking [AA] to come and pick me up. Q. What did she say? A. At first she wouldn't allow it. Q. What did she say to you? A. She said that for me to persevere and stay there. It's almost morning. She would come and pick me up. Q. Yes and then what did she say, or what did you say? A. Then the conversation ended there. Q. Well did she say that you could or shouldn't leave? A. No she said I could not leave. Q. Did you ring your cousin [AA] after that telephone call? A. Yes I did. Q. What did you say to [AA]? A. I asked her to come and pick me up and I told her that [Somsri] would not let me go back - go home. Q. Did [AA] arrive at the shop 10? A. Yes she did. Q. Did you speak to anyone at shop 10 as you left? A. No I did not. I just packed things and then I just walked out. Q. Did anything happen as you walked out? A. There was a Chinese man who saw me walking out and he followed me out. Q. Did you hear him say anything or did he do anything? A. I heard him calling out - shouting out my name. Q. Is that Vivian? A. Yes that's correct. Q. Did you drive off with your cousin [AA]? A. Yes." 62 BB spent the night at AA's flat, and in the morning telephoned Somsri. Somsri said that she would pick BB up at shop number 10. BB said she was not at shop number 10, she was at AA's. Somsri was surprised to hear that, and asked how she had been there. BB told her that she was so sick that she asked AA to come and pick her up. Somsri said BB was to ask AA to drop her back to Somsri's brothel. BB was taken back there. The evidence continued: "Q. Did you have a conversation with the accused Somsri that day? A. I felt that when I went into the house she then acted as if she was unsatisfied, unhappy." 63 One of the customers who BB had asked to help her, got in contact with the immigration authorities. Before the immigration authorities acted on the information BB was moved to the Penrith brothel. She notified the customer by SMS of the address to which she had been moved. It was soon after that that the Immigration Department raids occurred. 64 On the day of the immigration raids, there were too many working girls at the Penrith brothel for the number of clients. One of the girls asked for permission to go out shopping. BB asked that girl to please ask Sieders if she could go also. Sieders gave that permission. While they were out shopping BB received a call on her mobile phone, from a voice she recognised as Sieders. She handed the telephone to the other woman, who then passed on a message that Sieders had said to hurry back. They did so. It was after they returned to the brothel that the Immigration Department raid at Penrith occurred. 65 After BB was detained by immigration, she had a telephone conversation with AA in which AA recounted a conversation she had had with Tu: "Q. What did [AA] say was said? A. She said that Phee Tu had rung and threatened her. A. Did she go on? A. Yes. Q. What did she say? A. She said that if I give the interview to the police, anything that will have anything to do with Phee Tu herself, then my family and Phee Tu's family will be in trouble and will never live in peace again."

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DD's Evidence 71 DD gave her evidence in Thai. When she was taken to the office of the solicitor who made a visa application in her name, "I did not say anything because I could not speak English that well". 72 DD did factory work in Bangkok. She married another factory worker, and they had two children. They encountered financial problems, and the bank took away a house on which they had paid a deposit. The husband was often away from home, sometimes for months without any contact, and DD found that he was living with another woman. The husband had worked as a taxi driver, but eventually he lost his taxi. DD arranged for her children to live with a friend or relative, and set about working overseas as a sex worker. She eventually came in contact with Pat, who introduced her to a woman called Pet, who said that her younger sister had a restaurant in Australia. Pet told DD that her husband would have to sign a contract for 500,000 baht. DD asked her husband to do so, but he refused. When Pet was told this she said that DD would have to sign the contract herself. Pet and a man brought a contract document to DD to sign in which the amount was 600,000 baht, not 500,000 baht. The man said that that was the amount because her husband did not sign. At the time the contract was signed Pet said: "If you work and you pay back the debt then there's no problem. Should you escape then your family will certainly have problems." 73 Before DD left Bangkok a friend told her that the amount of debt you actually have to repay would be $45,000, notwithstanding the amount stated in the contract. 74 DD gave evidence about being accompanied to Australia by a Japanese man, given cash for the journey but being required to hand it back to her travelling companion once she had arrived. She arrived in Sydney on 3 December 2003. The Japanese man took her to a hotel, where she was met by Somsri and another Thai woman. DD kept her passport and airline ticket on arrival. DD heard a conversation between Somsri and the other Thai woman in the course of which they agreed to pay "8500" each to the Japanese man. DD was then taken to Somsri's house, where she met Tu. Somsri told her that "you have to pay me 45,000 in debt". DD gave evidence: "Q. Did you have any conversation with the accused Somsri about what would happen if you left the brothel before the debt was paid? A. Yes. Q. What did she say to you? A. She said that if you wanted to escape you cannot escape because other working girls will be talking about it and you will - it will be found out where you went. Q. Did you say anything? A. I said that I would not escape because I have a contract." 75 At one stage she heard Somsri saying that AA's niece would be coming to Australia and that Somsri "had to share half with Tu". The evidence continued: "Q. Half with what, did she say? A. It meant that [BB] would be owing half of the debt each, to each of them, with Tu."

[25]

Mr Kazi's Evidence 79 Mr Kazi, a solicitor who acted in connection with the applying for protection visas for the Thai women, explained that a person who arrived in Australia on a tourist visa was eligible to apply for a protection visa within 45 days of arrival, and that if such an application was made the applicant was then entitled to a bridging visa that entitled them to stay in Australia and work until the application was decided. Kazi first met Sieders about September 2003 in connection with a visa application for Sieders' wife. Sieders later telephoned Kazi several times and asked whether he was interested "to lodge some protection visa applications for their clients, for their friends". These were "the girls". Sieders told Kazi that he had a massage parlour or brothel. Sieders said "we do lots of protection visa application." Thereafter, Sieders brought about four to five persons, all from Thailand, to apply for visas. 80 Kazi first met Somsri in late January 2004, when she came to his office to speak to him about lodging visa applications. She told him that she had a brothel and was a partner with Sieders. She told him that the girls came in under tourist visas, "and handed over me the passport of the girls to say what kind of visa they can lodge". Kazi explained to her that they were not allowed to work under a tourist visa. Somsri then asked him to lodge the protection visa application. In all, Somsri sent him a total of "about four or five girls". 81 He gave evidence that at some time in the period between September 2003 and April 2004 two or three girls were detained and the Immigration Department cancelled their visas because they were working. Kazi said he talked to both Sieders and Somsri: "I talked to them, why you allow them to work, they said they have to work otherwise how can we support them." 82 In one such conversation Sieders said to him: "… that girls need to work because we have to pay some money to some people, they got a lot of outstanding debts. Q. In what context did he say this to you, what were you speaking about? A. In relation to the bridging visa because they are not allowed to work but they are working and the Department did cancel their visa on the basis that I asked them to wait until their bridging visa is in effect and that is the thing they said, no they have to work otherwise we can't support them. Q. Can't what? A. Otherwise we can't support financially because we have to give them, they're in debt, the costs involve to bringing them here or getting the visa." 83 He also gave evidence of a conversation with Somsri: "Sir I did it a couple of occasions in short after visa application lodge she call me, she want to make sure that she got visa or not and then I said she need to wait three months and then she said no, they have to work." 84 His evidence about EE was that "she could not speak English at all".

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The Offence Under Section 270.6(2) 85 Under this heading in the judgment I will seek to explain what is involved in the definition of sexual servitude and the offence under section 270.6(2). In the course of trying to explain, I will on occasions seek to convey a concept by using paraphrases of the statutory language. It should be clearly understood that I am not suggesting that any paraphrases that I use in this part of the judgment are necessarily ones that would be suitable to be used in instructing the jury. Rather, they are attempts to convey the concepts that the statutory language conveys, by using somewhat different language. There is a risk in this that the precise nuances of the statutory language might not be captured, even if the general purport is conveyed. Thus any explanation given here is not intended as a substitute for the statutory language. 86 There is nothing in the definition of sexual servitude that makes it inapplicable to a man or boy. However, as all people involved in the present case who were alleged to be in sexual servitude are women, for ease of explanation I shall speak as though the person in sexual servitude is female. 87 The first thing to notice about the definition of sexual servitude is that sexual servitude is a condition of a person. Because it is a condition of a person, it is an attribute of a particular identifiable person. It is not an action, or a series of actions, or even a failure to act, on the part of anyone. Rather, it is a state of affairs, of a fairly general kind. It is a state of affairs or set of circumstances in which the person in question lives her life. 88 An essential condition for a person being in sexual servitude is that that person provides sexual services. In the present case, there is no dispute that that condition is satisfied. 89 Another essential condition for a person being in sexual servitude is that the person in question is either not free to cease providing sexual services, or not free to leave the place or area where the person provides sexual services. Ceasing to provide sexual services, and leaving the place or area where the person provides sexual services, are each actions of the person in question. However, so far as is relevant to the definition of sexual services, they are not actions that the person in question has actually taken at any time in the past. Rather, they are potential actions, which the person in question might in future take. At a fairly high level of abstraction, one can readily understand the notion that a person who provides sexual services might cease to provide those services, or might leave the place or area where the person provides the sexual services. 90 What the notion of a person being not free to engage in a particular action seeks to capture is that there is something about the state of affairs or set of circumstances in which the person lives that prevents, or seriously inhibits, the person from engaging in that particular action. Being not free to engage in a particular action can arise from a matter of law, as occurs when a person is not free to enter or leave a country without a valid passport, or a married person is at any particular time not free to marry the next day someone other than their present spouse. It can arise from physical constraint, as occurs when a person is kidnapped. It can arise from a social or moral pressure that the person in question cannot resist, as occurs if a child is not free to go out at night without parental permission, or in some cultural traditions a person is not free to wear any type of clothing they might choose in certain situations, such as being in public. It can arise from limitations on the person's economic resources, as when the vast majority of people in Australia aged between 25 and 60 are not free to spend a year without working. It can arise from limitations on the person's own abilities, in the sense that a person of below average intelligence is not free to become a university professor, or a person of ordinary physical skills is not free to compete in the Olympic Games. There may well be other sources of limitations on a person's freedom to act in a particular way. 91 It is not necessary for the circumstance that makes a person "not free" to take some particular action to be one that renders that action absolutely impossible in all senses. For instance, a person with the care of an aged infirm parent can legitimately say that they are not free to live apart from the parent, notwithstanding that they are physically capable of walking out the door and never coming back. 92 There is nothing in the notion of being not free to engage in a particular action that requires the person in question to actually want to engage in that action. Thus, even if the person in question is happily married and with not the slightest desire to marry anyone else, he or she still has a lack of freedom to marry someone else the next day. A person who enjoys getting up and going to work every day, and who would be horrified at the prospect of a year's idleness, can still be not free to take a year off work because he or she could not afford it. In these examples, for the purpose of immediate decision-making, the lack of freedom of the person in question is unimportant, because of what they actually want to do. But there is nonetheless a lack of freedom. 93 Thus, for a person to be not free to cease providing sexual services, or not free to leave the place or area where the person provides sexual services, it is not necessary for them to actually want to cease providing sexual services, or to leave the place or area where the person provides the sexual services. Rather, what is involved is that, if they were to want to, there would be some circumstance or set of circumstances in which they live that would prevent, or seriously inhibit, their taking that action. 94 Further, it is possible for a person to be not free to take some particular action even if they have agreed that they will not take that action, or if their being not free to take that action is a consequence of something that they have freely agreed to. For example, it seems that in Roman law one of the ways of becoming a slave was by a person agreeing to do so (WL Westermann, The Slave Systems of Greek and Roman Antiquity (1955) American Philosophical Society at 84; The Cambridge Ancient History, 2nd ed, Vol VII Part 2 at 329-331; TJ Cornell, The Beginnings of Rome (1995) Routledge at 281-283; W Buckland, The Roman Law of Slavery (1908) Cambridge University Press at 427-428). The definition of slavery in section 270.1 of the Code is: "… the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such a condition results from a debt or contract made by the person."

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Similarly, an employee who agrees to devote all his or her time to the business of his or her employer is not free, while the contract of employment is on foot, to work for anyone else, even though the employee freely entered the contract. 95 The definition of sexual servitude requires there to be a lack of freedom to do either one of the two specific things identified in paras (a) and (b) of the definition. Thus, it is concerned only with a very specific respect in which there is a limitation on the freedom of action of the person in question. A person can be free to do a multitude of different things, but if she is not free to cease providing sexual services, or not free to leave the place or area where she provides sexual services, she will, if the other condition of the section is met, be in sexual servitude. 96 Another essential condition before a person is in sexual servitude is that her lack of freedom (of the relevant types) arises because of the use of force or threats. When the lack of freedom is something that exists only because of a constraint on the person potentially taking action, the phrase because of the use of force or threats does not convey the notion of a causal relationship that is actually in operation. Rather, what it seeks to capture is the notion that if she were to want to take the type of action in question, it would be the use of force or threats that would provide a cause of her not taking that action. 97 I do not think that the language requires that the use of force or threats be the sole cause of her not taking that action. However, even so, to say that "because of X, a person is not free to do Y" still requires X to play a quite significant role in the person's not doing Y. It is a stronger thing to say "because of X, a person is not free to do Y", than to say "because of X, a person would not do Y if the possibility of doing Y were to present itself to her". For some actions there might be ten or twenty different reasons why a person would not do Y if the opportunity arose, but it might not be appropriate to say of each of those reasons that because of it the person was not free to do Y. Whether the factors that inhibit a person from taking a particular course of action are strong enough for the person to be not free to take that action is very much a matter of evaluation of the circumstances of the individual case. 98 There is no necessity for force or threats to be used by the accused before the accused commits an offence under section 270.6(2). Rather, the force or threats can be used by anyone. What is essential about the force or threats is the role that they play in the lack of freedom (in the relevant respects) of the person in question. 99 In seeking to understand the statutory definition of threat, a threat of any other detrimental action can be a threat of any disadvantage at all, whether to the provider of the sexual services or anyone else. Thus a threat of disadvantage to, for example, a friend or relation of the provider of sexual services can be a relevant threat, if it is because of that threat that the provider of sexual services is not free in the relevant respects. 100 As a matter of language, a threat of detrimental action is a threat to take any kind of action whatever that will be to the disadvantage of someone. There is no reason why a threat of detrimental action needs to be a threat to take action that is illegal. Indeed, a threat of detrimental action can be a threat to take action that the person who it is contemplated will be subject to the detriment has agreed to. Under the ordinary mortgage securing a loan from a bank, the mortgagee agrees that if the debt and interest are not paid on time the bank can sell the mortgaged property - even so, when the bank tells a defaulting debtor that if he or she does not pay it will sell the mortgaged property the bank is threatening to take action that is detrimental to the mortgagor. It is just that (absent legislation like moratorium statutes) there is usually nothing illegal about a bank threatening to enforce its security. 101 There is no need for a threat of detrimental action to be specific about the particular detrimental action that might be taken. In some circumstances, it can be a clear threat to say "We know where you live", or "Your daughter is quite pretty, isn't she", or "You'll regret this". 102 There is an exception to the definition of "threat" concerning a threat of detrimental action when there are reasonable grounds for the threat of that action in connection with the provision of sexual services by a person. Though that exception was not relied on in the present case, it seems to me to seek to capture the sort of action detrimental to an employee that an employer might take against any employee whose work performance was not satisfactory. 103 For someone to be in a condition of sexual servitude is not in itself an offence on the part of any one. Before the offence under section 270.6(2) is committed, it is necessary for the accused to conduct a business (in the extended sense stated by section 270.6(3)). In the present case, there is no issue that both Somsri and Sieders conducted the business of a brothel. 104 The offence under section 270.6(2) also requires that the business in question involves the sexual servitude of other persons. For that to occur, it is not sufficient that someone who happens to be in sexual servitude has some role to play in the business. It is possible to conceive of a person who is in fact in sexual servitude, who has a part-time job in a business unrelated to the sex industry - in that case, the proprietor of that business may well not be conducting a business that involves the sexual servitude of other persons. The section does not say that it is an offence to conduct business that involves a person who happens to be in sexual servitude. Rather, before a business involves the sexual servitude of other persons, the sexual servitude of those persons must have some role to play in the business. Without trying to be exhaustive, one way in which this might occur is if the business in question involves provision of sexual services, and the sexual servitude of the people in question is relevant to enabling the business to provide the sexual services. 105 In the present case, there was no dispute that the four women in question worked in the businesses that Somsri and Sieders conducted. There is active dispute, however, about whether it is correct to say that any of them were in sexual servitude. 106 Another necessary element of the offence under section 270.6(2) is that the person who conducts the business knows about, or is reckless as to, that sexual servitude. A woman is in a condition of sexual servitude by reason of the existence of certain facts or state of affairs. For a business proprietor to know about or be reckless as to that sexual servitude, the business proprietor must know about, or be reckless as to, the facts or state of affairs by virtue of which the woman in question is in sexual servitude. I will give further consideration later in this judgment to what is involved in being reckless as to that sexual servitude.

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The Officers' Committee Report 109 The report of that Committee was published in November 1998. Apart from a stylistic change in the wording relating to the penalties, the provisions as enacted are identical to those recommended by the Committee. The report of the Committee drew together a variety of treaties concerning slavery and related topics. Amongst them was the 1966 International Covenant on Civil and Political Rights, article 8(3)(a) of which stated, "no one shall be required to perform forced or compulsory labour". The report explains, at 16, the source of the Committee's terms of reference: "In December 1997, the Commonwealth Justice Minister, Senator Amanda Vanstone, warned that Australia had insufficient laws to stop women being forced into 'sex slavery'. She has argued that Australia needs legislation which targets the traffickers that recruit, organise and profit from those engaged in prostitution and sexual exploitation (see, for example, the Brisbane Courier Mail, 13/12/97, p 9) and the Standing Committee of Attorneys-General referred the issue to the Model Criminal Code Officers' Committee for examination and report. As a result, the Committee issued a discussion paper in April 1998. The overwhelming response from consultation was that legislation in some form was desirable." 110 The report continued, at 17: "Commonwealth interest in 'sex slavery' or 'sexual servitude' pre-dates the issue of the discussion paper by several years. From the beginning the Commonwealth proposal focused on the international trade in women and children for the purposes of prostitution with particular attention being given to the traffic in people from Asian countries to Australia for commercial sexual purposes. A part of that trade involves the recruitment of children or young women from the poorer regions of developing countries, their import into Australia and employment in the sex trade in Australia under conditions which amount to 'slavery', 'involuntary servitude' or under what might be called servile conditions." 111 The report referred to some information provided by the Australian Federal Police relating to such activities, and said, at 17: "Clearly, there are a variety of arrangements and consequences alleged. In some cases and to various degrees, any pay received by the workers is offset by real or contrived debts or costs for board and lodging, and the degree to which the women are subjected to confinement and restriction is hard to ascertain but can also be reasonably assumed to be variable." 112 The report referred, at 19, to a particular proposal that the Commonwealth had advanced for legislation that contained an inclusive definition of "servile conditions" that included: "(i) where a person, employed to engage in prostitution, is not free to terminate that employment, or is not free to terminate it within a reasonable time and/or on reasonable terms; (ii) where a person, employed to engage in prostitution, is not free to decline to render sexual services to a particular person or persons; … (iv) where a person, employed to engage in prostitution, is not free, without fear of retribution, to leave his or her place of employment or residence according to his or her wishes or choosing; (v) where a person's sexual services are pledged to another as security for a debt, and the value of those services, as reasonably assessed, is not applied towards the liquidation of the debt or the length and nature of the sexual services to be rendered are not reasonably limited and defined." 113 The Committee did not proceed with that proposal. As it explained at 33-34: "The Committee has also moved away from the previous formula which referred to the victim as being by reason of force or threats not free to cease providing sexual services within a reasonable time or on reasonable terms. This has been replaced by a simple reasonable grounds exception. The Committee believes it assists to list threat of force or deportation as examples of unwarranted threats but agrees with criticism that the reference to other legal process should be removed as a specific example as it could mislead people. It was also decided to remove from the definition the mention of being free to decline to provide services to a particular person or persons. The Committee is concerned that such a serious offence should not apply where someone is happy to provide sexual services, is free to leave, is not beaten or subject to other force; but simply refuses to kiss any clients. It should not be the case that an employer who threatens to sack the person on that basis should be able to be charged with the sexual servitude offence. While there are more serious issues, such as the policy in relation to condoms, the object of these offences is to regulate servitude, not prostitution. … There were a number of submissions which expressed the view that there will never be a time when it is reasonable (or warranted) for a person to be deprived of the freedom to refuse the provision of sexual services. This is incorrect. The reality of sex work is that where someone is employed to provide sexual service, there is invariably an obligation under the contract to deal with an assigned customer. To do otherwise would broaden the offence to the extent it would mean almost all employment of sex workers would be caught by the serious sexual servitude offence. This may be the desired result for some people, but is outside the main object of the offence and certainly cannot be made such a serious offence. The definition of threat also now includes threats to another person, (for example, the victim's child)."

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The Revised Explanatory Memorandum 114 The Revised Explanatory Memorandum stated, concerning the definition of sexual servitude: "The opening words of subclause (1) of this provision make it clear that for the purposes of the relevant offences under the Bill "sexual servitude" will only arise if one of the two specified manifestations of sexual servitude is brought about by the use of force or threats. Further, the definition of 'sexual service' in subsclause (2) makes it clear that sexual servitude can only arise in connection with the provision of commercial sexual services. The force or threats need not be against the sex worker but may be against another person, such as the sex worker's child. The difference between slavery and servitude in the Bill is essentially one of degree. To establish slavery it must be shown that the accused exercises a power of ownership over the victim. Servitude falls short of ownership but the domination over the victim is such as to effectively deny her or his freedom in some fundamental respects. In relation to the sexual servitude offences in the Bill it is only if the victim's freedom is denied in respect of one of the two matters listed in this subclause that an offence is committed. Whether a person is 'not free' in relation to the matters specified in the definition will be determined on the facts of each case and in the context of the mischief the legislation is directed against; namely, sexual 'servitude'. The fact that a person may suffer a penalty under the terms of a typical employment contract would not of itself amount to being 'not free'. It is only if the force or threats effectively denies the person her or his freedom in relation to the two specified matters that sexual servitude can be made out. In borderline cases, where there is doubt about whether a person is 'not free' in relation to the matters listed in the definition, it is expected that the courts will resolve the matter in favour of the defendant. Subclause (2) also provides an expanded definition of 'threat', to include (a) a threat of force; (b) a threat to cause a person's deportation; or (c) a threat of any other detrimental action unless there are reasonable grounds for the threat of that action in connection with the provision of sexual services by a person. Whether there are reasonable grounds for a threat of detrimental action is a question of fact to be determined in the circumstances of each case. However, even if there are no reasonable grounds for a threat, sexual servitude will not be made out unless the circumstances are such that the threat effectively denies the person her or his freedom in relation to one of the two matters listed in the definition of sexual servitude."

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The New Offence of Debt Bondage 115 Both appellants placed reliance upon the fact that section 271.8 of the Code came into effect on 3 August 2005. The legislation that introduced it, the Criminal Code Amendment (Trafficking in Persons) Act 2005 (Cth), removed the definition of "sexual service" contained in section 270.4, and inserted a definition in identical terms into the Dictionary. It inserted into the dictionary of the Code new definitions: " debt bondage means the status or condition that arises from a pledge by a person: (a) of his or her personal services; or (b) of the personal services of another person under his or her control; as security for a debt owed, or claimed to be owed, (including any debt incurred, or claimed to be incurred, after the pledge is given), by that person if: (ba) the debt owed or claimed to be owed is manifestly excessive; or (c) the reasonable value of those services is not applied toward the liquidation of the debt or purported debt; or (d) the length and nature of those services are not respectively limited and defined. personal service means any labour or service, including a sexual service, provided by a person." 116 It also inserted a new section 271.8: " 271.8 Offence of debt bondage (1) A person commits an offence of debt bondage if: (a) the person engages in conduct that causes another person to enter into debt bondage; and (b) the person intends to cause the other person to enter into debt bondage. Penalty: Imprisonment for 12 months. (2) In determining, for the purposes of any proceedings for an offence against subsection (1), whether a person (the first person ) has caused another person (the second person ) to enter into debt bondage, a court, or if the trial is before a jury, the jury, may have regard to any of the following matters: (a) the economic relationship between the first person and the second person; (b) the terms of any written or oral contract or agreement between the second person and another person (whether or not the first person); (c) the personal circumstances of the second person, including but not limited to: (i) whether the second person is entitled to be in Australia under the Migration Act 1958 ; and (ii) the second person's ability to speak, write and understand English or the language in which the deception or inducement occurred; and (iii) the extent of the second person's social and physical dependence on the first person. (3) Subsection (2) does not: (a) prevent the leading of any other evidence in proceedings for an offence against subsection (1); or (b) limit the manner in which evidence may be adduced or the admissibility of evidence." 117 The appellants submit that the creation of this new offence shows that the offence of sexual servitude is not applicable to cases where a person has voluntarily entered into an agreement to provide sexual services, and have the payment for those services applied towards payment of a debt. 118 Before considering the merits of that argument, there is a prior question of the extent to which it is legitimate to use a statute which amends a previously existing statute as an aid to the construction of the statute in its unamended form. Various cases, collected in Pearce & Geddes, Statutory Interpretation in Australia, 6th ed (2006) LexisNexis Butterworths para [3.33]-[3.35] suggests that this legitimately can be done in at least some circumstances. Rather than puzzle over how that could ever be correct as a matter of principle, I shall consider what High Court authority requires me to do. 119 A limit on the scope within which a subsequent statute can be used to construe an earlier statute was considered by Dixon, Evatt, and McTiernan JJ in Deputy Federal Commissioner of Taxes (SA) v Elders Trustee and Executor Co Ltd [1936] HCA 64; (1936) 57 CLR 610. It concerned a landholder who held certain pastoral leases. Prior to 30 June 1914 these pastoral leases were exempt from land tax. Amending legislation, assented to on 21 December 1914, removed that exemption, and said nothing about from what date the exemption was removed. The question for decision in the appeal was whether the exemption applied for the financial year beginning on 1 July 1914. That matter was complicated because (at 624): "… the amending Act of 1930 contains a provision showing the that the legislature understood the exclusion made by the Act of 1914 from the exemption of Crown leases operated in respect of the financial year beginning 1st July 1914 … Except for the evidence of legislative intent supplied by this provision, we should have felt little doubt that the exclusion effected by the Act of 1914 from the exemption conferred on Crown leases by sec 29 did not operate in respect of the financial year beginning 1st July 1914." 120 However, the amending Act of 1930 ultimately did not cause their Honours to depart from the view they had reached that the land was exempt from tax in the year in question. They said, at 625-6: "Doubtless the true explanation is that, in drafting the Act of 1930, it was supposed that the exclusion by the Act of 1914 of Crown leases from the exemption took effect for the financial year beginning 1st July 1914. But, in our opinion, the supposition ought not to lead us to give that effect to the Act of 1914. "An Act of Parliament does not alter the law by merely betraying an erroneous opinion of it" (Maxwell , Interpretation of Statutes, 6th ed (1920), p 544, and, per Lord Atkinson , Ormond Investment Co v Betts (1928) AC 143, at p 164). "Where the interpretation of a statute is obscure or ambiguous, or readily capable of more than one interpretation, light may be thrown on the true view to be taken of it by the aim and provisions of a subsequent statute" (per Lord Atkinson (1928) AC at p 164). In Cape Brandy Syndicate v Inland Revenue Commissioners (1921) 2 KB 403, at p 414, Lord Sterndale said: "I quite agree that subsequent legislation, if it proceed upon an erroneous construction of previous legislation, cannot alter that previous legislation; but if there be any ambiguity in the earlier legislation, then the subsequent legislation may fix the proper interpretation which is to be put upon the earlier." In reference to this statement, Lord Buckmaster said in Ormond Investment Co v Betts (1928) AC, at p 156: "That is, in my opinion, an accurate expression of the law, if by `any ambiguity' is meant a phrase fairly and equally open to divers meanings." But it is not permissible to construe an unambiguous phrase in an earlier Act by an erroneous assumption of its effect contained in a later Act which did not purport to alter or amend the earlier Act (per Lawrence LJ, Port of London Authority v Canvey Island Commissioners (1932) 1 Ch 446, at p 493). In the present case the Act of 1930 did not intend to amend the Act of 1914. It was not concerned with it and was dealing with a matter unconnected with the question for what financial year the amendments made by the Act of 1914 first took effect. On that question it did no more than proceed upon an assumption. It was a question depending, not on an ambiguous word or phrase, but on the absence from the Act of 1914 of any express statement of the financial year first to be affected. The ordinary rules of interpretation supplied the deficiency and, in our opinion, made it clear that the amendments first applied, not to the financial year then current, for which the land tax liabilities had accrued nearly six months before, but to the then next ensuing financial year." 121 In Grain Elevators Board (Vic) v Dunmunkle Shire [1946] HCA 13; (1946) 73 CLR 70 the issue concerned whether land owned by a statutory Board was exempt from local government rates as "land the property of His Majesty which is unoccupied or used for public purposes". Five of the six judges who sat held that the exemption did not apply because the Board had a separate corporate existence, and was not "His Majesty". A statute amending the rating Act, at a time later than the rating year in question, established a specific exemption for some, but not all, of the land of the Board in question. Two of the five judges who made up the majority (Latham CJ at 77, and Dixon J at 85-86) referred to that later exemption. Latham CJ said it was one of several factors that "tend to show that the Board was not, by reason of its constitutions and functions, entitled to the immunity which it now seeks to establish." Dixon J, at 86, said: "Although the provision was passed too late to apply to the present case, I think it may be considered on the question of interpretation. It would be a strange result if we were to interpret prior legislation as giving a wider exemption than that conferred by the provision so that the express exemption it makes would prove unnecessary and the qualifications it places upon that exemption would be futile." 122 Neither judge referred to either authority or principle as justification for this way of proceeding. When the other three judges who made up the majority did not use the amending legislation as an aid to construction, making use of it is not part of the ratio of the case. However, accepting that even an unreasoned dictum of Latham CJ and Dixon J is entitled to respect, the proposition for which the dictum stands is a narrow one. It is that when there is an earlier and a later pronouncement by a legislature that bears upon a single topic (in this case, whether and in what circumstances the Board had to pay rates) the later provision can be looked to as an aid to construction of the earlier. That is not the situation here, where section 270.6(2) creates one offence, and section 271.8 creates a different offence. 123 In Khoury v Government Insurance Office of New South Wales [1984] HCA 55; (1984) 165 CLR 622 an insurer had declined a claim on the basis of a material non-disclosure by the insured. Section 18 Insurance Act 1902, introduced in 1974, entitled a court to excuse a failure by an insured to observe or perform a term or condition of a contract of insurance if the insurer was not prejudiced. The trial judge had used that provision to excuse the non-disclosure. In the High Court, the provision was held inapplicable, on the ground that an insured's duty to disclose material facts was not an implied term of the contract, but an obligation which the common law imposed as an incident of the relationship between the parties (at 637). After the loss in question the New South Wales Parliament, in 1983, introduced a new section 18A into the Insurance Act, that, in broad terms, provided for a contract of insurance that was entered after the commencement of the section to not be vitiated by reason only of a misrepresentation or non-disclosure unless it was material, and there was a measure of culpability on the insured (of the types more precisely defined by the section) concerning the misrepresentation or non-disclosure. Having reached the conclusion that section 18 did not apply to the non-disclosure in question because the obligation to disclose was not a term of the contract, Mason, Brennan, Deane and Dawson JJ continued, at 639: "In that regard, while one cannot construe the terms of a 1974 legislative provision by reference to the terms of a non-retrospective 1983 provision, the Insurance (Amendment) Act 1983 (NSW) illustrates that it cannot be assumed that, if the New South Wales Parliament had intended in the 1974 amendments to the Act to provide relief in cases of a failure to discharge the long established common law duty of disclosure, it would have done so in the broad terms adopted in s 18 for cases involving a non-prejudicial breach of a term or condition of the contract. When, by that 1983 Act … the New South Wales Parliament introduced new provisions in the Act (s 18A) to provide general relief in cases of omission or non-disclosure, it adopted a quite different approach to that of s 18 and subjected the relief to conditions which would appear not to be satisfied in the present case." 124 That later majority statement in the High Court makes clear that the earlier provision could not be construed by reference to the later one. The only use that the majority judgment in Khoury made of the later statute was as an illustration of the way in which Parliament could have cast section 18, if Parliament had intended it to have the effect that the High Court had already held it did not have. 125 That view is consistent with the principles stated by McHugh and Gummow JJ in Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd [1995] HCA 44; (1995) 184 CLR 453 at 479 that: "… it is the intention of the legislature when effecting textual amendment of an Act to produce a revised text which thereafter and as to subsequent events is to be construed as a whole." (emphasis added)

[33]

See also at 463 per Brennan CJ, Dawson and Toohey JJ to similar effect. Their Honours are not there suggesting that the later Act can affect the construction of the earlier, as applied to events before the coming into effect of the later Act. If the submission of the appellants in the present case were correct, the court would be using the later Act to affect the construction of the earlier, as applied to events before the coming into effect of the later Act. 126 In Commissioner of State Revenue (Victoria) v Pioneer Concrete (Vic) Pty Ltd [2002] HCA 43; (2002) 209 CLR 651 Gleeson CJ, Gummow, Kirby and Hayne JJ at [52] adverted to "the difficulties involved in using an amending Act to construe earlier legislation". Their Honours adopted, as one of the reasons for not using the amending Act as an aid to construction in the case before them, that (at [52]): "The amendments have work to do, even assuming the correctness of the appellant's argument in the present case, and are not inconsistent with that argument." 127 In Allina Pty Ltd v Federal Commissioner of Taxation (1991) 28 FCR 203 at 212 Lockhart, Burchett and Gummow JJ said: "There was some debate before us as to the circumstances in which courts are entitled to examine a later statute to determine whether it throws any light upon the interpretation of an earlier statute. Plainly this course can be taken when the words of the earlier statute are ambiguous, but if the words of the earlier statute are clear, little assistance may be gained from the later statute. Also, care must be exercised to ensure that the words in the later statute have not been inserted to remove possible doubts: see Re MacManaway, Re House of Commons (Clergy Disqualification) Act 1801 [1951] AC 161 at 177-8; Kirkness (Insp of Taxes) v John Hudson & Co Ltd [1955] AC 696 especially per Viscount Simonds at 712-713; and Thompson v JT Fossey Pty Ltd (No 1) (1978) 20 ALR 496 per Franki J at 501-502; DC Pearce & RS Geddes, Statutory Interpretation in Australia (3rd ed, 1988), para 3.25. We do not discern any ambiguity in the relevant words of s 160 zh (9)(a), so do not find it necessary to call in aid the language of the amendment to para (a)." 128 In my respectful view, that statement is consistent with the High Court authority to which I have referred. 129 The appellants rely upon a statement made in the second reading speech for the Criminal Code Amendment (Trafficking in Persons Offences) Bill 2004 when introduced in the Senate on 8 December 2004, where it was said that the offence of debt bondage: "… prevents traffickers from using unfair debt contracts and other similar arrangements to force victims into providing sexual services or other labour to pay off large debts supposedly incurred by the trafficker in transporting the victim to Australia." 130 Some amendments were made in the Senate to the Bill as originally introduced. In section 271.8(2)(b) the words "between the second person and another person (whether or not the first person)" replaced the words "between the first person and the second person" that had appeared in the Bill. Also, para (ba) was added to the definition of "debt bondage". The revised Explanatory Memorandum made available to the House of Representatives in 2005 when the amended Bill came before it, included the following: "One tactic employed by people traffickers is the use of debt contracts or arrangements. Under these arrangements, the victim is coerced into providing sexual services or other labour to pay off large 'debts' supposedly incurred because the trafficker has arranged the victim's travel to a country or entry into that country or has organised employment and accommodation for the victim following the entry. New subsection 271.8(1) makes it an offence to engage in conduct that causes and is intended to cause another person to enter into debt bondage. The definition of debt bondage … is based on the definition adopted in the Supplementary Convention (to the 1926 International Convention to Suppress the Slave Trade and Slavery) on the Abolition of Slavery, the Slave Trade and Institutions and Practices similar to Slavery. " 131 That the legislation is based on the 1956 Supplementary Convention no doubt provides the reason for the definition of "debt bondage" including the juristically unusual notion of a "pledge" of person services. 132 The Explanatory Memorandum for the 2005 version of the Bill set out the definition of debt bondage, and continued: "The definition refers to a "debt owed or claimed to be owed". This definition is drafted to ensure that traffickers who invent or grossly inflate debts owed to them by their victims are covered by the offence. For example, where a trafficker claims that his or her victim owes a debt of $20,000 on the basis that the trafficker booked and paid for the victim's $2000 airfare to Australia, the debt "claimed to be owed" will be covered by the offence. The definition also refers to debts that are "manifestly excessive". For example, the offence will apply where the debt that the trafficker claims the victim owes under a debt arrangement is unreasonably inflated, and as a result, it will take the victim many more years to repay the debt, even if the reasonable value of the victim's services are applied toward the liquidation of the debt or the length and nature of those services are limited and defined. This definition of debt bondage is sufficiently limited to ensure the offence does not inadvertently target legitimate employment arrangements involving the application of services towards the liquidation of the debt and the limitation and definition of the length and nature of the services involved. The definition of debt bondage is not limited to a debt that exists at the time the pledge is given. The definition is drafted broadly to ensure it captures situations where the debt owed or claimed to be owed increases following the making of the pledge. This would cover situations where, for example, the perpetrator applies some of the value of the services provided to the liquidation of the debt, but also provides accommodation or other amenities to the victim, effectively increasing the amount of the debt owed. It would also cover the situation where, for example, the perpetrator provides payment to the victim, either in the form of money or some other valuable consideration. New subsections 271.8(2) and (3) are in similar terms to new subsections 270.7(1A) and (1B). Subsection 271.8(2) provides that a court or jury may have regard to a broad range of information, including the economic relationship between the victim and alleged offender, the terms of any contract or agreement and the personal circumstances of the victim, in proceedings under this section. For example, a brothel owner and a broker may enter into a contract about the victim. The court or jury may have regard to the terms of this contract when determining whether the brothel owner caused the victim to enter into debt bondage. However, new subsection 271.8(3) provides that new subsection 271.8(2) does not limit the leading of any other evidence, nor does it limit the manner in which evidence may be adduced or the admissibility of evidence. Consistent with new subsections 270.7(1A) and (1B) in the deceptive recruiting offence, new subsections 271.8(2) and (3) are designed to ensure that the court or jury is able to take into account significant power imbalances. This offence is less serious than the trafficking in persons offences or the sexual servitude or slavery offences. The penalty for this offence is 12 months imprisonment, which enables this offence to be dealt with as a summary offence, reflects the relative seriousness of the offence. The debt bondage offence provides an alternative in cases where it may be difficult to prove the commission of one of the more serious offences. The offence recognises that debt bondage is exploitative in itself and conducive to more significant abuse of individuals by those in a position to exploit them." 133 In my view there are significant differences between the offence of debt bondage, and the offences created by section 270.6. First, the offence of debt bondage is only committed by a person who causes another person to enter into debt bondage. Thus, it does not extend to a situation like that covered by section 270.6(2), where a person who is already in a state of sexual servitude becomes involved in a business. Second, a condition of debt bondage can arise for a person who provides any labour or service, whether or not it is a sexual service. Third, the indicia of debt bondage that are set out at paras (ba), (c) and (d) of the definition are indicia that relate to the terms of the arrangement under which the debt bondage arises. The indicia of sexual servitude are of a quite different type - they concern respects in which the person in question is not free in particular respects, and the reason why that person is not free in those respects. It could be possible for a person to be in debt bondage, but still be free to cease providing the personal services in question by raising enough money to pay off the debt. By contrast, if the existence of the debt creates a condition of sexual servitude it is because the woman in question has no practical prospect of paying off the debt other than by continuing to provide sexual services, and that circumstance is the reason why she is not free in one of the relevant senses. There is a world of difference between an offence that has as one of its elements a lack of freedom of the victim, and one that does not. Fourth, the Explanatory Memorandum makes clear that it is recognised that there will be an overlap between the two offences. It makes clear that part of the reason for choosing the penalty of 12 months imprisonment is to enable a debt bondage allegation to be dealt with summarily. It is quite common in the criminal law to have alternative offences that can overlap with each other, but where one is more serious than the other, and the less serious is able to be dealt with summarily. 134 In my view, there is no ambiguity in the wording of section 270.6(2) that needs to be clarified by reference to the later legislation. The earlier and the later legislation do not deal with the same topic. The later legislation had not come into operation at the time of the events to which the present charge relates. The later legislation has ample work to do that is independent of the work done by the earlier legislation. For all these reasons, I do not accept that the later enactment of the offence of debt bondage shows that the condition of sexual servitude could not arise as a consequence of the existence of a debt, and an agreement to provide sexual services to pay off that debt. 135 I do not find anything in the various suggested extrinsic aids to construction that I have been discussing causes me to form any view of the construction of section 270.6(2) and the definition of sexual servitude that I derived purely as a matter of textual analysis.

[35]

Events in Thailand 136 In the present case, there were various events that happened in Thailand that might arguably have contributed to one or more of the women not being free, in one of the relevant senses. That Pat required a guarantee from a close relative of BB, that BB's brother had signed a guarantee for an amount he had no prospect of repaying, and that Pat had taken a photocopy of the brother's identity card (with the clear inference that she thereby would have the means of finding where he was to enforce the guarantee), inhibited BB (on her evidence, which the jury seems to have accepted) from leaving the brothel once the work had become unacceptable to her. That DD had signed a personal guarantee in Thailand, which might possibly be enforced against her if she were to return home, might arguably have contributed to a lack of freedom on her part. There was a fairly clear statement by Pat about detrimental consequences that could flow from not adhering to the agreement - that should BB "escape" all the debts would have to be borne by her brother, and Pet told DD "should you escape your family will certainly have problems". Somehow, BB's brother had obtained the impression that the people who had organised BB's relocation to Australia were "influential", and communicated that impression to BB. There was evidence of the detail of the educational and family background of each of the women in Thailand, from which one can conclude that they were each extremely poor, and that many of them had significant family responsibilities. 137 However, even though a jury would be justified in concluding that such events in Thailand could contribute to the relevant lack of freedom of any of the women once they had come to Australia, unless it could be shown that Somsri or Sieders knew of, or were reckless as to, those events, they would ultimately need to be left out of account in deciding whether the offence under section 270.6(2) had been committed. Neither Sieders nor Somsri gave evidence. While there were some transcripts of police interviews with Sieders and Somsri that were tendered in evidence, the statements that Sieders and Somsri made in those records of interview were self-exculpatory, and in any event the questioning of the police officers concentrated on what Sieders and Somsri had done, not what they knew. The police asked no questions about topics that might elucidate what Sieders or Somsri knew about the detail of the background of the women and how each of them came to be in Australia, or what enquiries they made about that detail. The evidence of the various Thai women at the trial did not establish that either Sieders or Somsri were told about any of these events in Thailand. 138 Thus, the evidence does not justify a finding beyond reasonable doubt that either Somsri or Sieders knew about these events in Thailand, or was aware of a substantial risk that any deleterious consequences might arise to any of the women or any of their families in Thailand. It will be recalled that, in relation to two contracts that were signed in Thailand, the amount was much less than $45,000, and the practice seems to have been for payment for any woman to be sent to Thailand as soon as that woman arrived in Australia. The total amount sent to Pat in Thailand for BB was $18,220, [paras 18 and 19 above], greater than the amount for which BB's brother had signed as guarantor. While there was no evidence of the amount sent to Pat concerning DD, a jury would not be justified in concluding that the 600,000 baht for which she had signed had not been repaid. In circumstances where it could not be concluded that there would be disadvantageous consequences to anyone in Thailand from the women not performing their contracts, and in any event evidence was lacking about Sieders or Somsri being aware of a risk of disadvantageous consequences in Thailand, it could not be said they were reckless about such events in Thailand. 139 As I have said, there was no issue in the present case that the women were involved in the provision of sexual services within the meaning of section 270.4. Nor was there any issue that both Sieders and Somsri were conducting a business of running their respective brothels. Nor was there any issue that the four women in question were involved in each of those respective businesses. The appellants submitted that the Crown had not established that the business involved the sexual servitude of other people. That was so, in particular, because there was no evidence of the element of "use of force or threats".

[45]

"Because of the Use of Force or Threats"? 143 Mr Roberts SC, counsel for the Crown on the appeal, submitted that it had never been suggested to the jury by counsel for either of the accused that a reason why no offence had been committed was because, even if the women were in fact in sexual servitude, there had been no use of force or threats that was known to either of the appellants. 144 I do not think the situation is quite as clear-cut as that. Mr Gelbert, counsel for Sieders at the trial, said early in his address to the jury: "The Crown addressed you … and he indicated to you that from his impression of the case the real issue which focused in this case was whether there was sexual servitude, and that is a fact.. … It is the defence case that the prosecution has not demonstrated to you at all that there is any verifiable threat or force that has been imposed on any of these women …" 145 He pointed out that none of the women had ever told Sieders that they did not want to do the work, and there was no evidence that Sieders had made any threat to any of them. As well, however, later he submitted that even though there was some evidence of threats having been made in Thailand, they were not made by Sieders, and it was too remote to say that any threat made by Pat had emanated from Sieders. As well, Mr Gelbert said: "you have to be satisfied that Mr Sieders was part of some act, by threat or force, of sexual servitude. You would not be satisfied beyond reasonable doubt of that." 146 Though that statement does not put clearly the proposition that, even if there were threats, Sieders did not know of them, it may at least be consistent with the proposition. 147 The emphasis in the address of Mr Wendler, counsel for Somsri at the trial, was, understandably, a little different. He concentrated on the contract having been entered into freely, and with full disclosure. He emphasised that under it: "Her obligation was to pay back the money, not an obligation to have sex …" 148 In relation to the evidence about Somsri pointing out to some of the women that they should not escape, he said: "How was that a threat? And how is the threat simply for Somsri to remind her nothing more or less than the economic obligation or the debt obligation that she has…?" 149 Thus, one of the ways in which the appellants now put their case, namely that even if there were threats they did not know of them, was at best put to the jury only in an imprecise and shadowy way, and certainly not as a prime focus of the defence case. Even so, the Crown must prove every element of the charge against an accused. Subject to some limitations the precise scope of which may be open to debate, it can be open on appeal to a convicted person to take the point that there was no evidence of some essential element of the charge, even if that point had not been taken in the court below: Crampton v R [2000] HCA 60; (2000) 206 CLR 161 at [11], [14], [21]; R v Taufahema [2007] HCA 11; [2007] 228 CLR 232 at [54]; R v Hines (1991) 24 NSWLR 737 at 742-744; R v Moussa [2001] NSWCCA 427; (2001) 125 A Crim R 505 at [56]. I propose to assume without deciding that this Court should examine whether there was adequate evidence of use of force or threats that was known to either of the appellants. 150 There was no evidence of any explicit threat of force by anyone against any of the women, whether in Australia or in Thailand. While the conversation that AA had with Tu after BB had been seized by the immigration authorities contained a threat, that threat was not shown to be made on behalf of either Sieders or Somsri, and in any event, other than possibly as a piece of retrospectant evidence of very dubious weight, it occurred too late to be a contributor to any of the Thai women having been in sexual servitude. I propose to leave it out of account. 151 Mr Corish, counsel for Somsri on the appeal, accepted that there are some circumstances in which, if someone says to someone else, "you are not going anywhere", that can be a quite definite threat. There was evidence of Somsri saying to BB "you are not going anywhere". Mr Corish accepted that it was "potentially open" for a jury to find that Somsri knew that it was a threat. In my view Mr Corish was right to make this concession, and indeed in my view it was not only "potentially open" to a jury to find that Somsri knew it was a threat, it was actually open to a reasonable jury to make that finding. 152 As well, there was evidence of Somsri specifically saying to DD that if she escaped "it will be found out where you went". In my view, it would be open to a jury to find that that was a relevant threat. 153 There is no analogous evidence relating to Sieders of conversations with any of the women. Indeed, Sieders did not speak Thai, and there is no evidence of him having any conversation at all with any of the women who gave evidence. 154 However, apart from the evidence of threats by Somsri, there is in my view evidence of matters that could form the basis for the jury to make a finding that each of the appellants knew that the women were not free to cease providing sexual services, and not free to leave the place or area where she provided sexual services, and that each of those lacks of freedom was because of the use of threats. Each of Sieders and Somsri knew about the limitations on where the women could physically go. From the management positions that they each occupied in their respective businesses, it was open to the jury to find that they knew about the contract arrangement under which the women were working, and that the women were not paid for their work until such time as the debt was paid off. From the evidence of the involvement of both accused with Mr Kazi, it would be open to a jury to conclude that they were aware of the precarious immigration status of the women, and also about their inability to repay the "debt" other than by continuing to work. It would be open to a jury to find that it was an intrinsic part of the contract that, for so long as the woman in question was continuing to work at paying off her debt she would not have a presently enforceable obligation to pay a sum of money, but that if she were to cease working before the debt was paid off she would then have a presently enforceable obligation to pay a sum of money that she did not have the means to pay. In my view it would be open to a jury to find that the arising of a presently enforceable obligation to pay a sum of money that the woman could not afford to pay, had implicit in it a threat of detrimental action. In my view, the jury would be entitled to conclude that each of the accused was aware that because of the prospect of that detrimental consequence arising if they were to cease work, the women were not free to cease providing sexual services. 155 Further, when Sieders and Somsri themselves imposed and enforced the physical limitations under which the women lived, and it was only by continuing to subject themselves to those physical limitations that the women would continue to earn money to enable the debt to be paid off, it would be open to a jury to conclude that it was because of the prospect of the debt arising if they were to seek to break free from those physical limitations, that the women were not free to leave the place or area where they provided sexual services. 156 When the tendency of the debt arrangement is to keep the women providing sexual services in the businesses of Sieders and Somsri, it would be open to a jury to find that each of those businesses was one involving sexual servitude. 157 Thus, in my view, the first ground of appeal is not made out. 158 Both appellants drew attention to the decision of the Victorian Court of Appeal in R v Wei Tang [2007] VSCA 134; (2007) 16 VR 454. In that case, the Court of Appeal quashed the appellant's conviction on five counts of possessing a slave contrary to 270.3(1)(a) of the Code and five counts of using a slave contrary to the same provision. The facts arose from circumstances broadly similar to the present case, in that five Thai women incurred substantial debts under an agreement entered in Thailand, and, pursuant to that agreement, travelled to Australia and worked as prostitutes to repay the debts. The ratio of the case depended upon a finding of the constitutional validity of the provisions in question, analysis of the elements of the offences charged and whether those elements had been made out, and a consideration of the adequacy of the trial procedures. However, in the course of analysing the elements of the offence charged Eames J (with whom Maxwell P and Buchanan J agreed) expressed some obiter views about the scope of section 270.6, at [88]: "On the other hand, s 270.6 of the Code, which created the offence of sexual servitude, was in existence when the applicant engaged in the conduct giving rise to the slavery charges. That provision was not utilised by the Crown, no doubt in recognition that a conviction under that section could not have been achieved, having regard to the definition of "sexual servitude" in s 270.4(1). The offence occurs where the offender, by means of force or threats, requires a person to engage in sexual services, so that the person is not free to cease providing the services or is not free to leave the place where the sexual services are being provided. On the face of it, such an offence would seem to involve certain conduct on the part of the offender, concerning the provision of sexual services by the complainant, which would be even more serious than that alleged in the present case. Here there was no suggestion that the five contractors provided sexual services because of force or threats. While there would have been practical impediments to doing so and economic consequences for them were they to do so, Ms Carlin accepted that each of the complainants could have refused to complete the contract she had entered. Had this been a case where threats and force had been applied to the complainants, and had the applicant been charged and convicted of sexual servitude, then the maximum penalty for that offence would have been 15 years' imprisonment." 159 The appellants submitted that the same reasoning should apply in the present case. I do not accept that submission. First, in the present case there is no concession by the prosecutor, or finding, that each of the complainants could have refused to complete the contract she had entered. Second, I do not, with respect, accept that the correct analysis of section 270.4 requires inquiry to be directed to whether the contractors provided sexual services because of force or threats. Rather, the statutorily mandated inquiry is whether the person in question is, by reason of force or threats, not free in the two relevant respects. Of course, if it was shown that the women had provided sexual services because of force or threats, that would be powerful evidence that they were, by reason of force or threats, not free in either of the two relevant respects - but it is not the only way in which sexual servitude can be established. Third, I do not accept that there is a dichotomy between women not being free to cease providing sexual services, or to leave the place where the sexual services are provided, and there being practical impediments and economic consequences if they were to cease to provide those services, or leave that place. Sometimes, practical impediments to taking a particular course of action, and economic consequences of taking it, are such that one is not free to take it. 160 It is also appropriate to state here that, if I were to consider the evidence for myself I would, by following the line of reasoning that I have indicated would be open to a reasonable jury to find, come to the conclusion that each of the women was in sexual servitude, and that each of the accused knew of that sexual servitude. My view on the topic is relevant because it has a role to play in the second ground of appeal, to which I now turn.

[47]

The Part Recklessness Played in the Trial 163 The part of the trial that involved the jury took place from 27 June 2006 until 21 July 2006. Though the opening address of the Crown Prosecutor is not transcribed, no party suggests that the concept of recklessness played any part in that address. 164 Some assistance in understanding the course taken in giving directions can be gained from discussions in the course of the trial between the judge and counsel concerning the issues. One such discussion occurred on Monday, 10 July 2006: "HIS HONOUR: So far as the trial has unfolded, I've been able to glean, insofar as the issues between the Crown and the accused are concerned, there's no question that the girls were out here engaged in providing sexual services. It doesn't seem to me to be an issue that they were doing so under the terms of some agreement by means of which they were obliged to repay a sum of money approximating $45,000, in some instances more, depending upon who was bearing the burden of the applications for extending their visas. There doesn't seem to be any issue that they were working under the obligation that the $45,000 or thereabouts was to be paid before they could earn money for themselves. It also doesn't seem to be a question that the $45,000 was earned within a period of something a little less than three months, in each case there's no question that, as I understand things, that the accused were engaged in the conduct of these businesses at the premises that have been identified in the Crown case. The accused Sieders being engaged in the conduct of the business at 373 High Street Penrith and the accused [Somsri] being engaged in the conduct of the premises, or the businesses at the premises at the other locations. The issue, as I understand the questions that have been put to the witnesses so far, seems to be the extent to which the girls were bound to that agreement and the extent to which they were free to depart from the arrangement without consequences to themselves or their families. Does that fairly summarise the issues? I'm not obliging you gentlemen to commit yourself to this proposition but just for the purposes of dealing with this question, is that a fair summary of the issues that are relied in this trial between the Crown and the accused? WENDLER: Our case is there's no sexual servitude on the facts. HIS HONOUR: Yes but by expanding on what that means, have I summarised fairly the position your client is respectively advising? WENDLER: Yes." 165 Mr Gelbert did not say that his position was any different. The passage I have set out was occasioned by the judge giving consideration to whether a newspaper article on the topic of sexual slavery, that had been published over the weekend, required the discharge of the jury. On such a topic, it would be obvious to experienced counsel (as these were) that the relationship between the contents of the newspaper article, and the issues that the jury will be asked to decide, is a matter of critical importance. If Mr Gelbert had a different understanding of the issues to Mr Wendler, it would be incumbent on him to make his different position clear to the judge. The judge did not discharge the jury. 166 After the last Crown witness concluded giving evidence, each accused elected to call no evidence. 167 On 17 July 2006 the Crown Prosecutor, Mr Roberts, gave his closing address to the jury. He referred to the terms of the indictments, and then to the terms of section 270.6(2): "… which reads any person or a person who conducts any business that involves the sexual servitude of other persons and who knows about and it goes on - I don't think we're terribly concerned with this - 'Or is reckless as to that sexual servitude' is guilty of an offence." 168 He went on immediately to explain the term "sexual servitude" to the jury. He made no reference to recklessness in the rest of his address. 169 Both the Crown Prosecutor and Mr Gelbert completed their addresses before lunch. Mr Gelbert made no reference to recklessness. 170 Immediately after lunch, and before the jury was brought back, the following exchange occurred: "HIS HONOUR: Just before we get the jury, Mr Crown, you made a passing reference in your address to the jury to recklessness. Are you relying upon that part of the offence? CROWN PROSECUTOR: I don't think it would necessarily obviate your Honour from referring it to the jury, but I would have thought that knowledge of this contract seems to be obvious and recklessness seems really not to arise at all. HIS HONOUR: No. The concept of recklessness is always an exercise and I wasn't going to bother them with it if it wasn't a matter you wanted to pursue. Anyway, I have quickly knocked something together over lunch for the assistance of the jury. I will provide copies just for your consideration. I will have to give a closer consideration myself overnight, but at least if Mr Gelbert and the Crown can consider it and, Mr Wendler, you can have a look at it at your leisure." 171 The trial judge was referring to the first draft of a document that eventually became a set of written directions for the jury. Mr Wendler then addressed the jury. 172 After the jury had retired at the end of Mr Wendler's address the judge referred to his draft directions: "I'm not quite happy with this thing about recklessness. I've drawn upon someone else's efforts for that part of it and it doesn't seem to me to comply with the provisions of section 5.4" 173 Mr Roberts indicated he would like to "have a look at that because of the technical aspects". He then made various requests to the judge concerning directions to the jury. Mr Gelbert made various requests for directions, but made no submissions about what if any submission should be made concerning recklessness. Mr Wendler then made various requests for directions, and also made no request for a direction concerning recklessness. When Mr Wendler indicated he had completed his requests for directions the following exchange then occurred: "HIS HONOUR: All right, can we look at this question of recklessness Mr Crown. WENDLER: Just in relation to recklessness, I wouldn't be seeking a direction on recklessness in this case. HIS HONOUR: I can imagine-- WENDLER: Well I mean, in any case. I mean the case isn't a recklessness type case. HIS HONOUR: Well it depends upon the case that the Crown has gone to the jury with and there's only been one reference to the word "recklessness" and that was in the course of the Crown's address to them this morning. At the very beginning when he referred to section 270.6(2), when he simply referred to the third element of knowledge or recklessness and then moved on. But there's been no suggestion in explicit terms that this is a case of recklessness but it is the scope within the section of its application. It's probably scope by reason of the evidence that's before, particularly in the case of Sieders. CROWN PROSECUTOR: Well we say that the question of - we put our case primarily on the fact that assuming that, and that we prove that the accused is aware of the fact that the girls were on a contract, he's aware and there is other evidence to show that each accused is conversant with the incidents of a contract, therefore, if the incidents of the contract involve the condition of sexual servitude, then in a case of each accused, they knew about it but we submit that it is necessary to go on and speak about recklessness and it would be wrong to put it in the terms of that document. HIS HONOUR: Yes I agree. CROWN PROSECUTOR: And it would have to be put in the terms of 5.4 of the-- HIS HONOUR: Yes I drew upon a document prepared by one of my brothers for that and as I was going through and adapting it to the particular charge in this case. I made it that the second concept is really one of negligence. CROWN PROSECUTOR: I'll just try and just do it myself your Honour, or adapt the words to this-- HIS HONOUR: But I agree, in my view it's section 5.4(1) and Mr Crown I simply, and Mr Gelbert and Mr Wendler, I'll simply adapt the paragraph to embrace the code. That's what it is." 174 The reference to "5.4" is a reference to one of the introductory sections of the Criminal Code. It is convenient to set out the relevant introductory sections at this stage: " 3.1 Elements (1) An offence consists of physical elements and fault elements. (2) However, the law that creates the offence may provide that there is no fault element for one or more physical elements. (3) The law that creates the offence may provide different fault elements for different physical elements. 3.2 Establishing guilt in respect of offences In order for a person to be found guilty of committing an offence the following must be proved: (a) the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt; (b) in respect of each such physical element for which a fault element is required, one of the fault elements for the physical element. … … 4.1 Physical elements (1) A physical element of an offence may be: (a) conduct; or (b) a result of conduct; or (c) a circumstance in which conduct, or a result of conduct, occurs. (2) In this Code: conduct means an act, an omission to perform an act or a state of affairs. engage in conduct means: (a) do an act; or (b) omit to perform an act. … 5.1 Fault elements (1) A fault element for a particular physical element may be intention, knowledge, recklessness or negligence. (2) Subsection (1) does not prevent a law that creates a particular offence from specifying other fault elements for a physical element of that offence. … 5.3 Knowledge A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events. 5.4 Recklessness (1) A person is reckless with respect to a circumstance if: (a) he or she is aware of a substantial risk that the circumstance exists or will exist; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. (2) A person is reckless with respect to a result if: (a) he or she is aware of a substantial risk that the result will occur; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. (3) The question whether taking a risk is unjustifiable is one of fact. (4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element." 175 The judge and counsel then had a discussion concerning the manner in which the draft directions should be re-written to deal with the concept of recklessness. From the content of that discussion it is apparent that both the judge and counsel had the draft directions in front of them. After some drafting suggestions passed between the judge and Mr Roberts, the transcript continued: "HIS HONOUR … I'll have a look at a way to explain the term "unjustifiable" by reference to the dictionary, but I should use the language that's contained in that provision but I think that suggestion is the appropriate form of the direction for that. Is there anything you gentlemen want to say to-- GELBERT: Not at the moment. HIS HONOUR: Mr Wendler, did you want to-- WENDLER: I'm just still looking at 5.4, and then 5.43 [ semble 5.4(3)] of course. HIS HONOUR: Sorry, 5.4 WENDLER: Three, the question whether taking a risk is unjustifiable as one of fact. HIS HONOUR: Yes. WENDLER: That will have to go in obviously."

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After a little more discussion of the direction concerning recklessness, the discussion between judge and counsel turned to other topics. 176 At the start of the hearing the next day, (18 July 2006) and in the absence of the jury, the judge said: "I had my associate send in to counsel the written directions that I'd settled yesterday evening. Have you had a chance to look at them? I haven't amplified very much that point with regard to recklessness. It didn't seem to be necessary ultimately after I'd given some thought to the matter. But in any event, is there anything that, you firstly, Mr Crown, do you want to say something?" 177 Each of Mr Roberts, Mr Gelbert and Mr Wendler made submissions about drafting amendments, and the conclusion of which the transcript recorded: "HIS HONOUR: I might just adjourn for five minutes and go and make these corrections on this document to ensure that they're correct and then I'll bring them straight back in. Yes, Mr Wendler?" 178 Mr Wendler then made application for two specific directions, neither of which related to recklessness. The Court then adjourned briefly, to enable the directions document to be printed. 179 Upon resumption, the judge made the settled version of the directions document available to counsel, the jury was brought back, and the judge gave directions to the jury, in the course of which he distributed the written directions. The directions document identified the elements of the offence as being: "That between the dates alleged and at the place identified in the charge the accused: 1. did conduct a business; 2. that involved the sexual servitude of other persons; 3. knowing about, or being reckless as to, that sexual servitude." 180 The written direction concerning element 3 was: "There are two ways by which the Crown may seek to establish element 3 for this offence. First, the Crown may seek to prove beyond reasonable doubt that the accused, in each case, had actual knowledge that the businesses they were conducting involved the sexual servitude of other persons. With regard to this first alternative, in each case you must ask yourself whether you are satisfied beyond reasonable doubt that the accused was aware that the businesses they each were conducting involved the sexual servitude of other persons. If that is your finding, then element 3 has been established. If however you were not so satisfied, then you must consider the concept of recklessness . The Crown will have proven element 3 for this offence if, in each case, although it has not proven actual knowledge, it has proven beyond reasonable doubt that he accused was reckless as to whether the conduct of their businesses involved the sexual servitude of other persons. The accused would be reckless with respect to that circumstance, if: a) he or she was aware of the substantial risk that the business involved the sexual servitude of other persons; and b) having regard to the circumstances known to him or her, it was unjustifiable to take that risk. The question of whether taking the risk was unjustifiable, is a question of fact for you, the jury. You must therefore decide in each case whether you are satisfied beyond reasonable doubt that there was a substantial risk that the business involved the sexual servitude of other persons, and if so, whether the accused was aware of that substantial risk. You must then in each case decide the circumstances that were known to the accused at the time those persons were engaged in the provision of sexual services, and, having regard to those circumstances, determine whether it was unjustifiable for the accused to have taken that risk." 181 The oral directions concerning element 3 were to the same effect. The judge's oral directions to the jury continued until almost lunchtime. 182 After the jury had departed for lunch, Mr Roberts made various requests for amendments to the directions or supplementary directions. 183 After the lunch break, Mr Gelbert made various requests for directions, that did not include anything on the topic of recklessness. 184 By that stage it was apparent that one of the jurors was unwell. The judge sent the jury home, and adjourned until the next day. 185 On the next day, 19 July 2006, the judge gave an oral précis to counsel of the supplementary directions he proposed to give to the jury. There followed a discussion that occupies over eight pages of transcript, in which all counsel participated with the judge, and in which no mention was made of any direction concerning recklessness. 186 The judge brought the jury back, and gave further directions. After the jury had retired the judge enquired of counsel whether they had any further submissions. Mr Wendler requested two supplementary directions, neither of which related to recklessness. 187 After an adjournment, the jury was brought back, and the judge gave still further directions to it. The directions finished that afternoon. 188 The next day, 20 July 2006, the jury assembled very briefly before being sent by the judge to consider its verdict. 189 After the jury had retired for some time, they sent a note, saying: "Would you explain to us all, as simply as possible, the contents of page 3 of the note as to the elements and in particular the concept of recklessness." 190 The trial judge indicated to counsel how he proposed to deal with that request. He indicated, in broad terms, an intention to take the jury through what he had said in the document about element 3 in its entirety, and to give a direction concerning circumstantial evidence. Mr Roberts indicated that he thought that was a good idea. Mr Wendler said, "I think I'll just wait to hear what your Honour says and then respond to it that way." Mr Gelbert said nothing on that topic. 191 The jury returned to court at 2:35pm. The judge elaborated on the written directions concerning the third element of the charge. In the course of so doing, he said: "The law says this, the accused would be reckless with respect to that circumstance, that is the conduct of their businesses involving sexual servitude, if he or she was aware of the substantial risk, that is that there was a - and they are simply words, substantial risk, that the businesses had people working in them who were in the condition of sexual servitude. They might not know, or you might not be satisfied beyond reasonable doubt that they actually knew, but yet they might know that there is a substantial risk that the people, or at least some of the people there were in the condition of sexual servitude. If there was a substantial risk, if there was that substantial risk of those people being in that condition, the law says that they cannot simply turn a blind eye and walk away and continue nevertheless. If, having regard to the circumstances known to him or her at the time, it was unjustifiable to take that risk, that is to continue conducting the business with a substantial risk that there were people in the condition of sexual servitude, if it was not justified for them to continue, well then the third element will have been established. I have used the term wilful blindness and it seems to me that that might best assist you in light of the tenor of your question in relation to this with regard to recklessness. If there is a substantial risk that these women were in a condition of sexual servitude and if the accused were aware of that substantial risk, and having regard to the circumstances known to him or her, with regard to that you need to look at a number of things which I will come to, but having regard to the circumstances known to him or her, if it was unjustifiable to continue to conduct the business in respect of those people, in respect of whom there was a substantial risk of them being in sexual servitude, well then the third element is made out by the Crown. … Well of course before you get to this you would need to be satisfied beyond reasonable doubt that there was the sexual servitude of those persons. Once you have reached that level of persuasion, if you have, in respect of that part of the case, then you consider, well, were the accused, or either of them in respect of their particular cases, were they aware of the substantial risk that those women were in sexual servitude. You might not be satisfied beyond reasonable doubt that they actually knew, but if in the circumstances you come to the view that they were aware of the substantial risk and according to the circumstances that were known to them at the time, him or her at the time, it was unjustifiable for them to continue in this activity, then the third element is made out." 192 His Honour summarised the evidence that the jury could look to in deciding whether the third element was made out: "You have first of all, the description of the circumstances in which the women were working as sex workers for these accused, in these businesses that have been identified to you. You have their descriptions of where they were living. You have the descriptions they have given as to their movement between the premises and how they were taken from one to the other and by whom. You have the evidence that has been given in relation to the harvesting of the money that was generated by these women in providing sexual services; who took control of the money and what happened to it and to what purpose it was applied. You have the evidence of what the women have described themselves as to their perception of what they were told by the accused from time to time in the course of their work. You have the description of the circumstances of their delivery into the care or custody, depending upon your view of the evidence, of the accused when they came into this country, delivered by a man who travelled with them from Thailand, taken to a hotel where they remained until the accused [Somsri], and on I think at least one occasion, accompanied by the accused Sieders, meeting at the hotel and then taking them from there immediately to a brothel where they were put to work after some short period of time. You have got the evidence of the telecommunication interception that has been tendered before you. You listened to what was said between the accused in that conversation. You also have the evidence of the interviews with the police officers and the acknowledged lies." 193 The telecommunication intercept to which his Honour referred was a conversation between Somsri and Sieders, in English, in which Somsri complained about lack of business since the immigration raids because girls don't want to work as they are scared of immigration. Somsri also reported on telling a man from Immigration "I don't have my girl. I don't buy girl, I don't do contract any more". 194 After the jury retired, Mr Gelbert raised a concern that the term "wilful blindness" could distract the jury from the terminology of the section itself, and requested that the judge withdraw the words "wilful blindness". Mr Wendler joined in that application. His Honour declined to do so. 195 After a further period, the jury sent another note enquiring, "what elements do we use to define 'substantial risk'?" Discussion between the judge and all three counsel about how to deal with that question occurs over seven transcript pages. All four lawyers expressed a disinclination to paraphrase the words of the section. The judge gave further directions, to the effect that they were ordinary English words and should be applied in accordance with the jurors' understanding of the language. 196 The next day, Friday, 21 July 2006, Mr Gelbert was absent and Sieders was represented by Mr Willis. The jury returned with guilty verdicts at 2:35pm. After those verdicts were announced, the judge asked both Mr Wendler and Mr Willis whether there was any reason why he should not proceed to formally convict his client of the offence. Both Mr Wendler and Mr Willis answered that question in the negative. The judge then proceeded to formally convict each of the accused.

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Procedural Unfairness? 197 The appellants submit that the decision to instruct the jury about recklessness resulted in procedural unfairness. They submit that the entire case had been conducted on the basis that the Crown had to prove that the accused knew that the women were in a condition of sexual servitude, but the judge's direction undermined that position. The direction opened up a new area of inquiry, namely whether either of the accused were reckless as to the events that had taken place in Thailand. 198 This submission should be evaluated in light of rule 4 of the Criminal Appeal Rules: "No direction … given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal … unless objection was taken at the trial to the direction … " 199 As is apparent from the history I have related, no objection was taken at the trial to the direction that was given, apart from the specific objection about the expression "wilful blindness". 200 In R v Solomon [1980] 1 NSWLR 321 a trial judge gave directions in relation to murder on the basis of reckless indifference to human life when the parties had conducted the trial without reference to that possible way in which murder could be committed. Street CJ at 327-328 held that in some circumstances it can be open to a trial judge to give directions on a matter tending towards conviction that neither party has relied upon. He said: "It seems to me that, where a judge does cover fresh ground in terms that are correct in law and properly based on evidence in the case, at the highest his decision so to do will only be challengeable if it can be seen that the accused person was thereby placed at a tactical disadvantage. In such a situation, appellate intervention would be appropriate, not by reason of the judge having canvassed fresh ground simpliciter, but by reason of unfairness attending his so doing. The relevant unfairness will ordinarily be looked for in procedural considerations. The judge, drawing upon his own forensic experience, will be readily appreciative of the tactical considerations which will have governed counsel in the conduct of the case for the accused. Objections to evidence, lines of cross-examination and decisions upon the material to be advanced on behalf of the accused, not to mention the general trend of the final address to the jury made on behalf of the accused, will all, of course, have been governed by the nature of the Crown case as opened by the prosecutor and developed through evidence tendered on behalf of the Crown at the trial. It is readily understandable that, within these procedural and tactical fields, there could arise an element of real prejudice, if the judge, in his summing-up, raises new approaches available to, but not expressly relied upon, by the Crown. But in every case in which a question arises regarding the development of new approaches, the question concerning the judge at first instance, and on appeal the question concerning this Court, will be to determine whether in so doing there will be worked an unfairness to the accused." 201 The principles have recently been stated by Johnson J in Robinson v R [2006] NSWCCA 192; (2006) 162 A Crim R 88 at [137]-[149] as follows: "Where a ground of appeal against conviction asserts that a miscarriage of justice has occurred arising from the trial judge leaving to the jury a possible basis of conviction which had not been relied on by the Crown, a number of principles arise for consideration and application. Firstly, a criminal trial is conducted as adversarial litigation: Whitehorn v R (1983) 152 CLR 657 at 682; Nudd v R (2006) 80 ALJR 614 at 618 [9]. An accusatorial process is involved in which the prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt and in which the prosecution must put its case fully and fairly before the accused is called on: R v Carroll (2002) 213 CLR 635 at 643 [21]; R v Ronen (2004) 62 NSWLR 707 at 722-3 [67]; Weiss v R (2005) 80 ALJR 444 at 455 [43]. A cardinal principle of adversarial litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue: Nudd at 618 [9]. Secondly, the judge's role in a criminal trial is to hold the balance between the contending parties without himself taking part in their disputations; the judge does not exercise an inquisitorial role in which he seeks himself to remedy the deficiencies in the case on either side, nor is it part of the function of the trial judge to don the mantle of prosecution or defence counsel: Whitehorn at 682. The fundamental task of a trial judge is to ensure a fair trial: R v Meher [2004] NSWCCA 355 at para 76. Trial judges should normally refrain from advancing an argument in support of the Crown case that was not put by the Crown. There are two reasons for the unacceptability of a judge using the summing up as a vehicle for strengthening the Crown case - first, it is inconsistent with judicial impartiality and secondly, to do so denies the prosecution and the defence the opportunity either to disavow, or to meet the argument: R v Meher at paras 87-93. Thirdly, the obligation of the Crown Prosecutor in opening the Crown case is not merely to outline the facts which the Crown proposes to establish in evidence, but to indicate, in conceptual terms, the nature of the Crown case to assist the trial judge, counsel for the accused and the jury: R v Tangye (1997) 92 A Crim R 545 at 556. Although there are no formal pleadings as such in criminal trials, the Crown is required to formulate the basis upon which it puts its case against the accused and essentially to adhere to that case: Tran v R (2000) 105 FCR 182 at 203 [133]. If there is to be any change in the nature of the Crown case after the case was opened, it is vital that it be identified with some precision in the absence of the jury before counsel commence their final addresses: Tangye at 556. Where the prosecutor has nailed the Crown's colours to one version of events in opening, and has been permitted to depart from that position during the course of the case, the prejudice may, depending on the particular circumstances of the case, be so great as to warrant the conviction being quashed: Tran at 206 [148]. Fourthly, a trial judge is obliged to leave to the jury defences which appear to the judge to be reasonably open, notwithstanding that they have not been canvassed by defence counsel. This forms part of the obligation of the trial judge to ensure that the accused person has a fair trial according to law. There is, however, no corresponding obligation on the judge to give directions upon matters tending towards conviction: Solomon at 327. However, where the Crown has elected to formulate and present its case in a particular way, a question may arise as to whether there are other matters of fact or law which the trial judge, in the discharge of the duty to ensure a fair trial according to law, considers it necessary to put to the jury even though the matter was not propounded or developed by the Crown. The fairness or unfairness of travelling beyond the ground covered by the Crown will be evaluated by the trial judge and will be to the forefront in the decision as to how far, if at all, new considerations will be put to the jury: Solomon at 327-328, 336. A trial judge who is considering instructing the jury concerning a basis for conviction which is not relied upon by the Crown must consider the fairness of such a course and, in particular, any tactical disadvantage which it may create for the accused: Solomon at 328, 333-334, 336; R v Pureau (1990) 19 NSWLR 372 at 377. Relevant unfairness will ordinarily be looked for in procedural considerations. The judge will be appreciative of the tactical considerations which have governed counsel in the conduct of the case for the accused, including objections to evidence, lines of cross-examination, decisions concerning the tender of material and the content of the final address to the jury on behalf of the accused: Solomon at 328. Where it appears to a presiding judge that the evidence in the case leaves open a finding of guilt on a basis not opened by the Crown, the better course is to raise the matter with counsel prior to final addresses and then, according to the responses of counsel, a decision can be made whether it is appropriate that the direction be given. If it is to be given, the jury will have the benefit of the submissions of both counsel upon the question: Solomon at 336. The accused then will not be deprived of the opportunity of having submissions made on his behalf on that issue: Solomon at 336; R v GAS (1998) 3 VR 862 at 863, 877-8; R v King (1985) 17 A Crim R 184 at 187; King v R (1986) 161 CLR 423 at 432-3; Carr v R [2000] TASSC 183; (2000) 117 A Crim R 272 at 285 [49]; R v Whitfield [2002] NSWCCA 501 at para 67. Unfairness to the accused in the conduct of the trial resulting from the trial judge's direction to the jury upon a basis for conviction not relied upon by the Crown may arise from a range of tactical disadvantages, including an inability to cross-examine Crown witnesses, adduce evidence in the defence case and make closing submissions to the jury on the matter: Solomon at 328, 336; GAS at 863; Carr at 285 [49]. Even if the prejudice to the accused was confined to the inability to address the jury upon the question, that itself is capable of being a most significant area of prejudice: R v RTB [2002] NSWCCA 104 at paras 55-61; Meher at paras 113-116, 130; Carr at 285 [49]. A miscarriage of justice may arise where the Crown elects to confine the basis for conviction to acceptance of critical Crown witnesses with no alternative and inconsistent factual scenario being advanced by the Crown. In such circumstances, defence counsel will address the jury to answer the Crown's case theory advanced in the closing address. If then, for the first time, the trial judge advances an alternative factual scenario based upon rejection of significant parts of critical Crown witnesses, the conduct of the trial may have altered. The Crown has been saved from the need to advance bases for conviction which are inconsistent. The defence counsel is deprived of the opportunity of addressing the jury upon the basis that the Crown is advancing inconsistent bases for conviction. The participants in the trial, including the Crown, the accused and the jury will hear, for the first time, the alternative basis for conviction being advanced by the trial judge in the summing up. Unfairness of this type leading to a miscarriage of justice was found to exist in Carr at 285 [49]. Fifthly, where the trial judge raises in the summing up a basis for conviction which was not relied upon by the Crown, there is the added difficulty that the direction carries particular force because it is coming from the judge and not the Crown: RTB at paras 57, 60. It may produce positive mischief if the judge raises arguments which could have been, but which were not put or requested by counsel: R v Heuston (1995) 81 A Crim R 387 at 393. Sixthly, the question to be considered by the Court of Criminal Appeal is whether there has been an unfairness to the accused which gives rise to a miscarriage of justice by reason of the conduct of the trial and which requires the Court's intervention: Solomon at 328, 336; R v King at 187; Carr at 285 [49]." 202 Those principles have recently been re-stated in Smale v R [2007] NSWCCA 328 at [80], [83]. 203 In the present case the trial judge raised the question of recklessness with counsel for the first time after Mr Gelbert had completed his address but before Mr Wendler began his. The Judge provided a draft of the remarks he was proposing to make on the topic. Mr Gelbert did not seek to make any supplementary address to the jury concerning recklessness, and Mr Wendler made his address knowing that the judge was contemplating giving a direction concerning recklessness. No counsel submitted that the judge ought not direct the jury concerning recklessness. Even when it became apparent, from the notes the jury sent, that they were giving attention to the topic of recklessness, counsel for the accused did not submit that the judge ought modify or withdraw the direction he had given concerning recklessness. Indeed, they collaborated in discussing the way in which the judge should answer the jury's questions. 204 As Hunt AJA said in South v R [2007] NSWCCA 117 at [33], "… the atmosphere of a trial is rarely apparent from an appeal book." 205 If experienced defence counsel who have sat through a trial have failed to object that the course the judge had taken, or was proposing to take, created unfairness for their client, there is difficulty in making good, on appeal, the submission that there has been any such unfairness: Smale v R at [98]; South v R at [35]. In light of that, and of my own conclusion that the verdicts were justified on the evidence (a relevant matter in light of Weiss v R [2005] HCA 81; (2005) 224 CLR 300) I would not uphold the submission that making mention of recklessness caused a miscarriage of justice. 206 A subsidiary aspect of this ground of appeal related to the trial judge's direction concerning "wilful blindness". There are numerous judicial warnings about the danger of using the expression "wilful blindness" when directing a jury concerning an offence in which knowledge is the mental element: R v Schipanski (1989) 17 NSWLR 618 at 620-621 per Gleeson CJ (with whom Grove and McInerney JJ agreed); Kural v R [1987] HCA 16; (1987) 162 CLR 502 at 511-512 per Toohey and Gaudron JJ (dissenting); R v McConnell (1993) 69 A Crim R 39 at [41] per Wood J. 207 In the present case, reading the directions concerning recklessness as a whole, I am not persuaded that their overall effect was to create a potentially misleading impression in the mind of the jury. 208 For these reasons I would reject the submission that there has been a denial of procedural fairness.

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Objective Seriousness of the Offence 216 Mr Corish submits that the objective seriousness was "towards the lowest end of the scale" in light of various factors. I will consider each of these in turn. 217 The first is that there was no deception or manipulative conduct which induced the victims to work in the brothels, and each of the complainants was aware of the conditions of the arrangement prior to arrival in Australia. In broad terms this submission is correct. As a matter of detail, it could be said against it that there was evidence that BB was not aware of all the arrangements, just of the fact that it was proposed that she be providing sex in return for money, and that concerning the other women it is not shown that they were aware of the physical limitations under which they would live in Australia, or of the fact that they would receive no money at all, apart from the occasional tip, until their "debt" was repaid. However, the main reason why I would be disinclined to place weight upon this factor is that section 270.7 of the Code creates a separate offence of deceptive recruiting for sexual services. If Somsri had engaged in, or been an accessory to, any deceptive recruiting for sexual services, and there was no separate charge in relation to that deceptive recruiting, and Somsri requested that it be taken into account in sentencing her in connection with the charge under section 270.6(2), it could be taken into account and could have a tendency to increase the sentence. However, that is not a reason why her conduct should be regarded as being "towards the lowest end of the scale". 218 The next basis of Mr Corish's submission is that the applicant played no personal part in taking steps for the complainants to leave Thailand. He points out that the judge, in his remarks on sentence, commented: "The Crown submits that there is little difference in the relevant factual circumstances of each offender. However the evidence at trial reveals that the offender [Somsri] had more extensive contact with the Thai organiser Pat than the offender Sieders. This is so in my assessment …" 219 It is inaccurate to say that Somsri played no personal part in taking steps for the complainants to leave Thailand. There was evidence that it was Somsri who telephoned Pat, at AA's suggestion, and set in train the process through which BB came to Australia. 220 As well, there is a separate offence under section 270.6(1) whereby: "A person: (a) whose conduct causes another person to enter into or remain in sexual servitude; and (b) who intends to cause, or is reckless as to causing, that sexual servitude; is guilty of an offence."

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Somsri was not charged with that offence, nor with being an accessory to the committing of that offence. The offence of which she has been found guilty does not relate to the circumstances in which any of the women came to leave Thailand and entered upon the sexual servitude. 221 The next factor on which Mr Corish relies is that "the operation of a brothel is not an illegal activity. But for the condition of commercial servitude, the provision of sexual services in a brothel is entirely lawful." 222 I have difficulty in regarding this as a factor that mitigates the severity of the conduct. It is somewhat like saying "but for the fact that he was driving in a manner dangerous to the public, driving a motor car is a perfectly lawful activity". It is the features of conduct whereby it is criminal that are of particular significance in deciding the objective seriousness of the offence, not features of the conduct that are not the aspects that make it criminal. 223 The next factor on which Mr Corish relies is that the women were not physically restrained or prevented from leaving by virtue of any threat of force or confinement. In relation to Somsri, there was the evidence of her conversations concerning the women "escaping", and her conversation with DD in which she said that if DD escaped, "we will find you". I accept that an assessment of the conditions under which the servitude happened is appropriate. The trial judge took this factor into account, saying: "I accept that in [Sieders'] case there has been no physical coercion exercised by him and that the extent to which he exercised control over these girls was somewhat more limited than that control exercised by [Somsri]." 224 But even though there was no physical restraint on the women (in the sense of being locked up, or chained), and that is relevant to assessment of the seriousness of the offence, the message was clearly got through to the women, and accepted by them, that they were not free to leave until their debt had been paid. In relation to BB, Somsri collected her from AA's flat and put her to work notwithstanding that she was ill. 225 The next factor relied on by Mr Corish was that, once the debt was discharged, some of the women continued to work in the sex industry. The judge accepted that that was so in his remarks on sentence. As the judge remarked, the fact that they have continued to work in that fashion "does not bring to account the risk faced by these women that at any point in time they were liable to deportation, and had the prospect of generating the money required to discharge their debt only to be then deported from this country without the opportunities to which counsel have referred." (ROS 6) 226 In any event, the continuance of the women working in the sex industry is consistent with their having voluntarily entered the arrangement in the first place, and not having changed their minds thereafter. However, the essence of the offence does not lie in compelling someone to do that which she does not wish to do. Rather, it lies in employing people, in this particular industry, who are not free to carry out the activities identified in section 270.4(1)(a) or (b) because of the use of force or threats, should they wish to carry out those activities. 227 The final matter relied on by Mr Corish was that the trial judge referred, (at ROS 25.2) to the women having been "the subject of exploitation" by people such as Somsri and Pat. The trial judge did not explain which of the various shades of meaning of "exploitation" he was intending. It is undoubtedly true that the women were utilised for the purpose of financial gain by Sieders and Somsri, in the sense in which any employer exploits his or her employees. It may be that the trial judge meant nothing more than that. However, in the present case the evidence indicates that the amount required by the Thai arrangers was less than $20,000 per woman, yet the women were required to "repay" $45,000. While it was the obligation of the brothel owners to provide food and shelter for the period during which the debt was being repaid, the shelter was provided in premises for which the brothel owners incurred no marginal cost, and the cost of the food for the period in question would have been nothing like $25,000. The "mothers of the contract" stood to make a considerable profit, in addition to the brothel owners receiving the proportion of the earnings that they would receive from a prostitute who was not under contract. I see no error in the trial judge's having referred to the women being the subject of exploitation. 228 Standing back from these individual factors, and bearing in mind that the maximum penalty is 15 years, setting an overall term of 5 years with a non-parole period of 2½ years does not seem out of keeping with the objective seriousness of the offence. For someone to be denied personal freedom, concerning so intimate a matter as with whom and under what circumstances they will have sexual relations, is an inherently serious matter.

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Subjective Circumstances of Somsri 232 The subjective circumstances of Somsri were detailed in a report of a psychologist, Associate Professor Stephen Woods. 233 He reported that Somsri was currently aged 34 (a misprint for 44), the eldest of 3 children from her parents' marriage, and part of a blended family of 13 children. Her father left home when she was about 5. She lived with her father for a couple of years, then moved to live with her mother. By that time there was a stepfather, who, like her father, was an emotionally and physically abusive person. She was raped at age 13, became pregnant, and in consequence she and her family were socially ostracised in their village, and forced to leave school. At the age of 15 she left her son in the care of her mother and moved to Bangkok to obtain work. She came to Australia in 1997, as she had a sister living in Australia. During the time she was here she met a man and began a relationship with him, and ultimately married him. She separated from that husband in 1999. 234 In late 1999 she met her current de facto partner, with whom she had no children. She began working as a prostitute in Australia around the time of separating from her husband. She continues to support her son in Thailand, who has a disability resulting from a motor accident. Around three months prior to her arrest she rented the premises where the offence occurred (I note that does not match other evidence - she was arrested on 30 July 2004 and DD had arrived and been taken to Somsri's brothel on 3 December 2003). Professor Woods expressed the view that she was experiencing symptoms consistent with a post traumatic condition referred to as Disorder of Extreme Stress Not Otherwise Specified, resulting from her rape and detention, and subsequent ostracism, and aggravated by the need to leave her son in the care of her mother to go to a large city to find work at the age of 15. He also found that she was suffering from an acutely depressed mood, arising from her poor language skills and being the only Thai-speaking person in the gaol. He took the view that her risk of re-offending was low, and that her social isolation was exacerbating her psychiatric condition. The trial judge did not accept that her psychiatric condition had any causal relationship with the offence of which she had been found guilty. He has referred to the evidence concerning her subjective circumstances, and I do not see any basis for concluding that he did not take it into account. 235 There were no comparable sentencing statistics available for the judge, as this was the first prosecution that had been brought under the section (or, it seems, under any of its State analogues). However, the trial judge referred to the sentences imposed in R v DS (incorrectly cited in the judgment below as R v Diaz) [2005] VSCA 99; (2005) 191 FLR 337 (guilty pleas to 5 counts of sexual slavery offences) and R v Lelah [2002] VSCA 96 (conviction by a jury of a number of offences relating to the use of drugs to induce a person to continue prostitution). 236 The trial judge considered, in a way not shown to be in error, the various factors that section 16A and 17A of the Crimes Act 1914 (Cth) require to be taken into account. 237 I am not persuaded that the sentence imposed by his Honour on Somsri fell outside the range of a permissible sentencing discretion. 238 The fact that this is the first time an offence under section 270.6(2) has been considered by an appeal court is in itself sufficient reason to grant leave to appeal. However I would dismiss the appeal.

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(ii) that the jury's decision was consistent with the applicant "knowing" of the sexual servitude, as opposed to being "reckless" as to that fact. 240 The submission that the judge's finding that the women worked without payment to themselves is erroneous is based upon some evidence given by BB's brother. The brother gave evidence of sending text messages to his sister requesting that money be sent to him. He said he had received some money from her, around 10,000 baht (about A$340). No documents relating to that transfer of money were tendered. BB denied that she had sent any money to her brother. There was evidence that before BB came to Australia AA gave BB's brother some rights to withdraw money from an account that AA had, and that AA sent money over to BB's mother. (T 75). In his remarks on sentence the trial judge said (ROS 8) that he was satisfied that the women "were under a contract to work without payment as prostitutes until they had earned $45,000 plus any additional sum added on." That finding says nothing about whether an amount of money was sent, at the request of BB, to her brother. There was evidence in relation to at least one of the Thai women that Somsri sent money on her behalf to her family in Thailand, and added the amounts so sent to the amount of the "debt". Even if that practice had been followed in relation to BB, it would not alter the essential fact that BB received no money in hand, apart from tips, until her debt was repaid. I do not conclude that the trial judge made, either the finding, or the error, that is alleged. 241 The basis of the second finding is that the trial judge found (ROS 9) that he was "satisfied beyond reasonable doubt upon the evidence at trial that both offenders knew that their business involved the sexual servitude of others". For reasons I have already given, I agree with that conclusion. 242 The final submission made on Sieders' behalf concerning sentence is that regard should have been had to the penalty applicable to an offence against section 271.8 of "debt bondage". It is submitted that even though the offence was not created until 3 August 2005, the judge ought to have recognised that the offending in the present case was commensurate with the offending involved in debt bondage, and that the 12 month penalty applicable under section 271.8 should have provided an indication as to the level of sentence required in the present case. 243 I do not accept that submission. Even assuming, without deciding, that it is appropriate to look to the penalty created by section 271.8 for guidance, it is no part of the offence of debt bondage that the services agreed to be provided are sexual services. 244 The Act that introduced the offence of debt bondage also amended section 270.6(2) by increasing the penalty for an aggravated offence to imprisonment for 20 years. Thus Parliament turned its mind, at the same time as creating the offence of debt bondage, to the appropriate penalty for section 270.6(2). At that time Parliament continued to see there as being an enormous discrepancy between the seriousness of the offence under section 270.6(2), and the offence of debt bondage. Given the differences between the offence of debt bondage and the offence under section 270.6(2) to which I have earlier referred, especially that section 270.6(2) involves a deprivation of freedom in a very important respect and debt bondage does not, it is totally unsurprising that Parliament took this view. I see no error in the trial judge not having had regard to the penalty that had come to be applicable for the offence of debt bondage. 245 If the submission of the sentence being manifestly excessive is intended to be a freestanding submission, unconnected with the three alleged errors I have mentioned, it suffices to say that in my view the sentence falls within a permissible sentencing discretion. 246 In these circumstances, I would grant Sieders leave to appeal against sentence, for the same reason as I would grant Somsri leave to appeal. However I would dismiss the appeal.

SIEDERS, Johan v R; SOMSRI, Yotchomchin v R

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