"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.