R v Tang

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GUMMOW, KIRBY, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ

THE QUEEN  APPELLANT

AND

WEI TANG  RESPONDENT

The Queen v Tang [2008] HCA 39
28 August 2008
M5/2008

ORDER

1.     Appeal allowed.

2.Special leave to cross-appeal on the first and second grounds in the proposed notice of cross-appeal granted.  Cross-appeal on those grounds treated as instituted, heard instanter, and dismissed.

3.Special leave to cross-appeal on the third ground in the proposed notice of cross-appeal refused.

4.Set aside orders 3, 4 and 5 of the orders of the Court of Appeal of the Supreme Court of Victoria made on 29 June 2007 and, in their place, order that the appeal to that Court against conviction be dismissed.

5.The appellant to pay the respondent's costs of the application for special leave to appeal and of the appeal to this Court.

6.Remit the matter to the Court of Appeal of the Supreme Court of Victoria for that Court's consideration of the application for leave to appeal against sentence.

On appeal from the Supreme Court of Victoria

Representation

W J Abraham QC with R R Davis for the appellant (instructed by Director of Public Prosecutions (Cth))

N J Young QC with M J Croucher and K L Walker for the respondent (instructed by Slades & Parsons Solicitors)

Interveners

D M J Bennett QC, Solicitor-General of the Commonwealth with S P Donaghue intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

B W Walker SC with R Graycar intervening on behalf of the Human Rights and Equal Opportunity Commission (instructed by Human Rights and Equal Opportunity Commission)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

The Queen v Tang

Criminal law – Slavery – Licensed brothel – Foreign sex workers – Whether respondent "intentionally possesses a slave or exercises over a slave any of the other powers attaching to the right of ownership" contrary to Criminal Code (Cth) ("the Code"), s 270.3(1)(a) – Elements of offence.

Criminal procedure – Directions to jury – Fault element of offence – Relevance of respondent's state of mind – "Intention" – Whether court required to direct on all aspects of definition of "intention" in Code, s 5.2 or only on aspect of definition attaching to physical element or elements of offence.

Criminal law – Conviction – Whether verdicts unreasonable or not supported by evidence – "Proviso" in Crimes Act 1958 (Vic), s 568(1) – Whether verdict of acquittal or re-trial appropriate.

Constitutional law – External affairs power – International Convention to Suppress the Slave Trade and Slavery (1926) – Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices similar to Slavery (1956) – Implementation of treaty by legislation regulating conduct in Australia – Whether Code, ss 270.1 and 270.3(1)(a) within legislative power – Constitution, s 51(xxix).

Words and phrases – "possess", "powers attaching to the right of ownership", "slave", "slavery".

Criminal Code (Cth), ss 5.1, 5.2, 5.6, 270.1, 270.2, 270.3.

1. GLEESON CJ. Following a trial in the County Court of Victoria, before Judge McInerney and a jury, the respondent was convicted of five offences of intentionally possessing a slave, and five offences of intentionally exercising over a slave a power attaching to the right of ownership, namely the power to use, contrary to s 270.3(1)(a) of the Criminal Code (Cth) ("the Code"). She was sentenced to a lengthy term of imprisonment. The Court of Appeal of the Supreme Court of Victoria upheld an appeal against each of the convictions, quashed the convictions, and ordered a new trial on all counts[1].  The prosecution, by special leave, has appealed to this Court.  The respondent seeks special leave to cross-appeal against the order for a new trial.

   [1]R v Wei Tang (2007) 16 VR 454.

2. The Court of Appeal rejected a number of grounds of appeal which, if upheld, would have resulted in an acquittal on all counts. It upheld one ground of appeal, which complained that the directions given to the jury were inadequate. The proposed cross-appeal raises three grounds. The first two grounds concern the meaning and constitutional validity of s 270.3(1)(a). Both grounds were rejected by the Court of Appeal. Logically, a consideration of those grounds should come before consideration of the Court of Appeal's decision on the directions given to the jury. Special leave to cross-appeal on those two grounds should be granted. It will be convenient to deal with them before turning to the prosecution appeal. It is also convenient to leave to one side for the moment the proposed third ground of cross-appeal, which is that the Court of Appeal erred in failing to hold that the jury verdicts were unreasonable or could not be supported having regard to the evidence.

   The legislation

3. Chapter 8 of the Code deals with "Offences against humanity". It includes Div 270 which deals with "Slavery, sexual servitude and deceptive recruiting". Division 270, which was introduced by the Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999 (Cth), was based on recommendations made by the Australian Law Reform Commission in 1990[2].  It includes the following:

   [2]Australian Law Reform Commission, Criminal admiralty jurisdiction and prize, Report No 48, (1990) at 72-92.

   "270.1 Definition of slavery

   For the purposes of this Division, slavery 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.

   270.2Slavery is unlawful

   Slavery remains unlawful and its abolition is maintained, despite the repeal by the Criminal Code Amendment (Slavery and Sexual Servitude) Act1999 of Imperial Acts relating to slavery.

   270.3Slavery offences

   (1)A person who, whether within or outside Australia, intentionally:

   (a)possesses a slave or exercises over a slave any of the other powers attaching to the right of ownership; or

   (b)engages in slave trading; or

   (c)enters into any commercial transaction involving a slave; or

   (d)exercises control or direction over, or provides finance for:

   (i)any act of slave trading; or

   (ii)any commercial transaction involving a slave;

   is guilty of an offence.

   Penalty:Imprisonment for 25 years.

   (2)A person who:

   (a)whether within or outside Australia:

   (i)enters into any commercial transaction involving a slave; or

   (ii)exercises control or direction over, or provides finance for, any commercial transaction involving a slave; or

   (iii)exercises control or direction over, or provides finance for, any act of slave trading; and

   (b)is reckless as to whether the transaction or act involves a slave, slavery or slave trading;

   is guilty of an offence.

   Penalty:Imprisonment for 17 years.

   (3)In this section:

   slave trading includes:

   (a)the capture, transport or disposal of a person with the intention of reducing the person to slavery; or

   (b)the purchase or sale of a slave.

   (4)A person who engages in any conduct with the intention of securing the release of a person from slavery is not guilty of an offence against this section.

   (5)The defendant bears a legal burden of proving the matter mentioned in subsection (4)."

4. Later, at a time after the alleged offences the subject of these proceedings, a further offence described as "debt bondage" was added to Ch 8 (s 271.8). That offence carries a lesser maximum penalty than an offence against s 270.3. It may be that the facts of this case would have fallen within s 271.8 had it been in force. If so, that is immaterial. There are many statutes, Commonwealth and State, which create offences of such a kind that particular conduct may fall within both a more serious and a less serious offence. There is a question, to be considered, whether the facts alleged in this case fall within s 270.3. If they had occurred at a later time, they might also have fallen within s 271.8. The two provisions are not mutually exclusive.

5. It is necessary also to refer to Ch 2 of the Code. It includes the following:

   "Chapter 2 – General principles of criminal responsibility

   Part 2.1 – Purpose and application

   Division 2

   2.1      Purpose

   The purpose of this Chapter is to codify the general principles of criminal responsibility under laws of the Commonwealth.  It contains all the general principles of criminal responsibility that apply to any offence, irrespective of how the offence is created.

   ...

   Part 2.2 – The elements of an offence

   Division 3 – General

   3.1Elements

   (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.

   3.2Establishing 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.

   ...

   Division 4 – Physical elements

   4.1Physical 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.

   4.2Voluntariness

   (1)Conduct can only be a physical element if it is voluntary.

   (2)Conduct is only voluntary if it is a product of the will of the person whose conduct it is.

   ...

   4.3Omissions

   An omission to perform an act can only be a physical element if:

   (a)the law creating the offence makes it so; or

   (b)the law creating the offence impliedly provides that the offence is committed by an omission to perform an act that by law there is a duty to perform.

   Division 5 – Fault elements

   5.1Fault 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.

   5.2Intention

   (1)A person has intention with respect to conduct if he or she means to engage in that conduct.

   (2)A person has intention with respect to a circumstance if he or she believes that it exists or will exist.

   (3)A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.

   5.3Knowledge

   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.

   5.4Recklessness

   (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.

   5.5Negligence

   A person is negligent with respect to a physical element of an offence if his or her conduct involves:

   (a)such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and

   (b)such a high risk that the physical element exists or will exist;

   that the conduct merits criminal punishment for the offence.

   5.6Offences that do not specify fault elements

   (1)If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element.

   (2)If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element."

   The background

6. The respondent was the owner of a licensed brothel at 417 Brunswick Street, Fitzroy known as Club 417. The ten counts in the indictment contained two charges (possessing and using) under s 270.3(1)(a) in relation to each of five women (sometimes described as the complainants). The women were Thai nationals. They all came to Australia to work as prostitutes. They had all previously worked in what was described as the sex industry. They became "contract workers". There was no written contract, but there were agreed conditions. Each complainant came to Australia voluntarily.

7. In an appeal to the Court of Appeal of Victoria by a woman, DS, who originally had been a co-accused of the respondent, Chernov JA described the practice that was followed[3]:

   "The organisers in Australia arranged for an appropriate visa to be issued to a [complainant], no doubt on the basis of false information being provided to the immigration authorities.  Sometimes that required funds to be deposited temporarily in a bank account in the name of the [complainant] in order to ensure that her visa could be obtained.  The woman was then flown to Sydney from Bangkok, 'escorted' by one or two people, usually an elderly couple (so as not to arouse suspicion as to the [complainant's] real purpose in coming to Australia).  Generally, once the [complainant] arrived here she was treated as being 'owned' by those who had procured her passage.  The [complainant] would be met at the airport by a representative of the Australian 'owner', who would pay off the 'escorts' and take the [complainant] to an apartment or hotel in Sydney and keep her there until a decision was made as to the brothel at which she was to work."

   [3]R v DS (2005) 191 FLR 337 at 340 [6].

   The "purchase" of the complainants and the "debts" incurred by them

8. DS gave evidence at the trial of the respondent.  DS's involvement included negotiating with people in Thailand who recruited the women, and settling the women in brothels in Australia[4].  In her evidence in the trial of the respondent, DS described the process that was followed in relation to one of the complainants, once she had arrived in Australia.  She gave a similar account in relation to three of the other complainants.  After receiving a telephone call from the woman's "boss", DS collected this particular complainant from a hotel.  She then contacted the respondent, who agreed to accept the complainant as a contract worker in her brothel, and who also agreed to take up a 70% interest in a syndicate which would "purchase" the woman, DS and her associates taking up the other 30%.  The syndicate agreed to pay the "boss" the sum of $20,000.  That sum was described by DS as "the amount for this girl", "the amount of money we purchased this woman" and "the money for purchasing women from Thailand to come here."  The $20,000 was sent to Thailand.

   [4]R v DS (2005) 191 FLR 337 at 340 [7].

9. An amount of $110 was to be charged to customers for the complainant's services.  It was agreed that the respondent would retain $43 in her capacity as brothel owner.  The remaining $67 was divided between the "owners" of the complainant.  In this case, the respondent retained 70% of $67 and DS and her associates took 30%.

10. The complainant acknowledged a "debt" to the syndicate in an amount of $45,000.  For each customer serviced, the complainant's "debt" would be reduced by $50.  In the particular case, the amount of the debt was the subject of subsequent negotiation between DS, the respondent and the complainant.  DS said: 

    "It was agreed in Sydney that the debt would be $45,000, but [the complainant] was not happy to pay that amount.  So, I asked [the respondent] if she could review the amount on her.  So, it was finally agreed that the amount would be I'm not sure $43,000 or $42,000."

    It was also agreed that there would be a "free day" for the complainant.  On that day, the complainant retained $50 per customer and $17 was divided between the syndicate members (70% to the respondent and 30% to DS and her associates).  The respondent was also paid $43 per customer, in her capacity as owner of the brothel.  Prior to coming to Australia the complainants were not always aware of the precise terms of the debt or of the living conditions in Australia.

11. There were five complainants.  All of them consented to come to Australia to work, on the understanding that, once they had paid off their "debt", they would have the opportunity to earn money on their own account as prostitutes.  Upon their arrival the women had very little, if any, money in their possession, spoke little, if any, English, and knew no-one.

12. Four of the complainants went to work in the respondent's brothel in the circumstances described above.  In respect of each of those four complainants, the respondent had a share in a syndicate which, according to DS, "purchased" the complainant for $20,000.  The contract "debt" was $45,000, or, in the particular case earlier mentioned, $42,000 or $43,000.  In his remarks on sentencing, which were based on the evidence that went to the jury, the trial judge said that this sum took account of the $20,000 paid to the recruiters in Thailand, as well as costs of travel and the complainant's living expenses during the term of the contract.  It included a profit margin, but the margin was not the subject of any calculation.  The "debt" was a notional liability by reference to which aspects of the complainant's obligations were regulated.  It was the amount she had to work off, at the rate of $50 per customer, under her "contract".  Two of the complainants ultimately worked off their debts, and were thereafter paid for their prostitution.

13. The respondent herself paid nothing to the recruiters in the case of the fifth complainant.  The evidence was that, after the fifth complainant was brought to Australia, she worked for others at a different brothel.  Later, DS arranged for her to work at the respondent's brothel.  The arrangements in relation to the fifth complainant were the same as for the other four, save that she had different "owners".  DS's evidence was that, in relation to the $110 paid by each of the fifth complainant's customers, the respondent retained $43 as brothel owner and the remaining $67 would be paid to DS, who divided the amount between that complainant's owners.  The fifth complainant's "debt" of $45,000 also was being worked off at the rate of $50 per customer.

14. In summary, then, while under contract, each complainant was to work in the respondent's brothel in Melbourne six days per week, serving up to 900 customers over a period of four to six months.  The complainants earned nothing in cash while under contract except that, by working on the seventh, "free", day each week, they could keep the $50 per customer that would, during the rest of the week, go to offset their contract debts. 

    The conditions of the complainants

15. The trial judge said in his sentencing remarks that he was satisfied on the evidence that the complainants were financially deprived and vulnerable upon arriving in Australia.  He found that the complainants entered Australia on visas that were obtained illegally.  Continued receipt of the benefits of the complainants' contracts depended on their not being apprehended by immigration authorities.  The benefits were more certain to be obtained when the complainants were kept hidden.

16. While on contract, the complainants' passports and return airfares were retained by the respondent.  This was done so that the passports could be produced to immigration authorities if necessary, and also so that the complainants could not run away.  The complainants lived in premises arranged by the respondent, where they were lodged and fed, and their medical requirements attended to.  The evidence was that the complainants were well-provisioned, fed, and provided for.  The complainants were not kept under lock and key.  Nevertheless, the trial judge said that, in the totality of the circumstances, the complainants were effectively restricted to the premises.  On rare occasions they ventured out with consent or under supervision.  The circumstances to which the trial judge referred included the hours of work involved, as well as control by way of fear of detection from immigration authorities, fear of visa offences, advice to be aware of immigration authorities, advice to tell false stories to immigration authorities if apprehended, and instructions not to leave their accommodation without the respondent, DS or the manager of the brothel.  In the case of some of the contract workers, the regime became more relaxed as the contract progressed and, towards the end of their contracts, they were at liberty to go out as they wished.  At work, the trial judge found that, while they were occasionally permitted to go out to shop, the complainants were, because of the nature and hours of their work, effectively restricted to the premises.

17. In the case of the two complainants who ultimately paid off their debts, the restrictions that had been placed on them were then lifted, their passports were returned, and they were free to choose their hours of work, and their accommodation.

18. In addition to the restrictions that were placed on the complainants, the prosecution pointed to the demands placed upon them as to the numbers of clients they were required to service, their lack of payment, and the days and hours they were required to work as demonstrating that their situation differed materially from that of other sex workers who, however exploited they may have been, were not slaves.  The Court of Appeal accepted that the evidence was capable of supporting the jury verdicts, which were held not to have been unreasonable.

    The meaning and validity of s 270.3(1)(a)

19. The first two grounds of the respondent's proposed cross-appeal are that: 

    (1)the Court of Appeal erred in holding that ss 270.1 and 270.3(1)(a) of the Code were within the legislative power of the Commonwealth; and

    (2)the Court of Appeal erred in holding that the offences created by s 270.3(1)(a) extended to the behaviour alleged in the present case and that they were not confined to situations akin to "chattel slavery" or in which the complainant is notionally owned by the accused or another at the relevant time.

20. As to ground (1), the Court of Appeal held that the relevant provisions of the Code were enacted pursuant to, and sustained by, the power of the Parliament to make laws with respect to external affairs (Constitution, s 51(xxix)). As to ground (2), the Court of Appeal held that s 270.3(1)(a) was not confined to what is sometimes called "chattel slavery". Presumably, the reference in ground (2) to "situations akin to" chattel slavery, and to notional ownership, was prompted by the consideration that chattel slavery is, in Australia, a legal impossibility. If s 270.3(1)(a), in its application to conduct within Australia, were confined to chattel slavery and legal ownership it would have no practical operation. Section 270.2 would eliminate chattel slavery and ownership and s 270.3(1)(a) would be otiose. The Court of Appeal held that the facts alleged in the present case were capable of being regarded as within the scope of s 270.3(1)(a). For the reasons that follow, the decision of the Court of Appeal on these issues should be upheld.

21. The word "slave" in s 270.3(1)(a) is not defined. It takes its meaning from the definition of "slavery" in s 270.1. That definition, in turn, derives from, although it is not identical to, the definition of "slavery" in Art 1 of the 1926 International Convention to Suppress the Slave Trade and Slavery ("the 1926 Slavery Convention")[5].  That definition was taken up in Art 7 of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices similar to Slavery ("the 1956 Supplementary Convention")[6], which dealt with institutions and practices similar to slavery "where they still exist and whether or not they are covered by the definition of slavery contained in article 1 of the [1926] Slavery Convention"[7].

    [5]212 UNTS 17.

    [6]266 UNTS 3.

    [7]Article 1.

22. The 1926 Slavery Convention, in its Preamble, recited the declaration in the General Act of the Brussels Conference of 1889-1890 of an intention to put an end to the traffic in African slaves, the intention, affirmed at the Convention of Saint-Germain-en-Laye of 1919, to secure the complete suppression of slavery in all its forms, and the need to prevent forced labour from developing into conditions analogous to slavery.  Article 2 contained an undertaking by the parties to prevent and suppress the slave trade and to bring about the complete abolition of slavery "in all its forms".

23. Article 1 of the 1926 Slavery Convention was in the following terms:

    "For the purpose of the present Convention, the following definitions are agreed upon:

    (1)      Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.

    (2)      The slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves."

24. The definition in Art 1(1) has continued to be used in international instruments.  For example, the Rome Statute of the International Criminal Court, which entered into force in 2002, defined "enslavement", a crime against humanity, as "the exercise of any or all of the powers attaching to the right of ownership over a person ... includ[ing] the exercise of such power in the course of trafficking in persons"[8].

    [8]2187 UNTS 90, Art 7(2)(c).

25. The travaux préparatoires of the 1926 Slavery Convention are not especially illuminating as to the meaning of Art 1[9].  Nevertheless, certain observations may be made as to the text and context, including the purpose, of the Convention.  First, in 1926, in the case of many of the parties to the Convention, including Australia, the legal status of slavery did not exist, and legal ownership by one person of another was impossible.  (In Australia, the law on slavery was based on four 19th century Imperial Acts[10], a matter adverted to in s 270.2 of the Code.) Secondly, a principal object of the Convention was to bring about the same situation universally, as soon as possible. Thirdly, the definition of slavery in Art 1 referred to the status or condition of a person.  Status is a legal concept.  Since the legal status of slavery did not exist in many parts of the world, and since it was intended that it would cease to exist everywhere, the evident purpose of the reference to "condition" was to cover slavery de facto as well as de jure.  This is hardly surprising.  The declared aim of the parties to the Convention was to secure the complete suppression of slavery in all its forms, and to prevent forced labour from developing into conditions analogous to slavery.  They undertook to bring about "the complete abolition of slavery in all its forms".  It would have been a pitiful effort towards the achievement of those ends to construct a Convention that dealt only with questions of legal status.  The slave trade was not, and is not, something that could be suppressed merely by withdrawal of legal recognition of the incidents of slavery.  It is one thing to withdraw legal recognition of slavery; it is another thing to suppress it.  The Convention aimed to do both.  Fourthly, the definition turns upon the exercise of power over a person.  The antithesis of slavery is freedom.  The kind of exercise of power that deprives a person of freedom to the extent that the person becomes a slave is said to be the exercise of any or all of the powers attaching to the right of ownership.  As already noted, there was no legal right of ownership in many of the states which were parties to the Convention, and one purpose of the Convention was that there would be no such legal right anywhere.

    [9]Allain, "A Legal Consideration of 'Slavery' in Light of the Travaux Préparatoires of the 1926 Convention", paper delivered at the conference, Twenty-First Century Slavery:  Issues and Responses, 23 November 2006; Allain, "The Definition of 'Slavery' in General International Law and the Crime of Enslavement within the Rome Statute", paper delivered at the International Criminal Court, Guest Lecture Series of the Office of the Prosecutor, 26 April 2007; Allain, The Slavery Conventions:  The Travaux Préparatoires of the 1926 League of Nations Convention and the 1956 United Nations Convention, (2008).

    [10]Slave Trade Act 1824 (Imp); Slavery Abolition Act 1833 (Imp); Slave Trade Act 1843 (Imp); Slave Trade Act 1873 (Imp).

26. In its application to the de facto condition, as distinct from the de jure status, of slavery, the definition was addressing the exercise over a person of powers of the kind that attached to the right of ownership when the legal status was possible; not necessarily all of those powers, but any or all of them.  In a 1953 Memorandum, the Secretary-General of the United Nations[11] listed such powers as including the capacity to make a person an object of purchase, the capacity to use a person and a person's labour in a substantially unrestricted manner, and an entitlement to the fruits of the person's labour without compensation commensurate to the value of the labour.  Each of those powers is of relevance in the present case.  On the evidence it was open to the jury to conclude that each of the complainants was made an object of purchase (although in the case of one of them the purchaser was not the respondent); that, for the duration of the contracts, the owners had a capacity to use the complainants and the complainants' labour in a substantially unrestricted manner; and that the owners were entitled to the fruits of the complainants' labour without commensurate compensation.

    [11]United Nations Economic and Social Council, Slavery, the Slave Trade, and Other Forms of Servitude, Report of the Secretary-General, UN Doc E/2357, (1953) at 28.

27. The reference to "chattel slavery" in the second ground of cross-appeal is a reference to the legal capacity of an owner to treat a slave as an article of possession, subject to the qualification that the owner was not allowed to kill the slave; power over "the slave's person, property, and limbs, life only excepted"[12].  Without doubt, chattel slavery falls within the definition in Art 1 of the 1926 Slavery Convention, but it would be inconsistent with the considerations of purpose, context and text referred to in the preceding paragraph to read the definition as limited to that form of slavery.

    [12]Somerset v Stewart (1772) Lofft 1 at 2 [98 ER 499 at 500]. See also Smith v Gould (1706) 2 Salk 666 [91 ER 567]; Forbes v Cochrane (1824) 2 B & C 448 at 471-472 [107 ER 450 at 459].

28. In the case of Prosecutor v Kunarac, before the International Criminal Tribunal for the Former Yugoslavia, where the charges were of "enslavement", both the Trial Chamber[13] and the Appeals Chamber[14] adopted a view of the offence that was not limited to chattel slavery.  The Trial Chamber, after an extensive review of relevant authorities and materials, concluded that enslavement as a crime against humanity in customary international law consisted of the exercise of any or all of the powers attaching to the right of ownership over a person; the actus reus of the violation being the exercise of any or all of such powers and the mens rea consisting in the intentional exercise of such powers[15].  The Trial Chamber identified, as factors to be taken into account, control of movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour[16].  The Appeals Chamber agreed with those factors[17].  However, it preferred to leave open, as a matter that was unnecessary for decision in that case, the Trial Chamber's added factor of an ability to buy and sell a person, and it disagreed with the Trial Chamber's view that lack of consent was an element of the offence, although accepting that it may be of evidential significance[18].

    [13]Case No IT-96-23-T & IT-96-23/1-T, 22 February 2001.

    [14]Case No IT-96-23 & IT-96-23/1-A, 12 June 2002.

    [15]Case No IT-96-23-T & IT-96-23/1-T, 22 February 2001 at 192 [539]-[540].

    [16]Case No IT-96-23-T & IT-96-23/1-T, 22 February 2001 at 194 [543].

    [17]Case No IT-96-23 & IT-96-23/1-A, 12 June 2002 at 35-36 [117]-[119].

    [18]Case No IT-96-23 & IT-96-23/1-A, 12 June 2002 at 36-37 [119]-[120].

29. It is unnecessary, and unhelpful, for the resolution of the issues in the present case, to seek to draw boundaries between slavery and cognate concepts such as servitude, peonage, forced labour, or debt bondage.  The 1956 Supplementary Convention in Art 1 recognised that some of the institutions and practices it covered might also be covered by the definition of slavery in Art 1 of the 1926 Slavery Convention.  To repeat what was said earlier, the various concepts are not all mutually exclusive.  Those who engage in the traffic in human beings are unlikely to be so obliging as to arrange their practices to conform to some convenient taxonomy.

30. In Siliadin v France[19], the European Court of Human Rights dealt with a complaint by a domestic worker that the French criminal law did not afford her sufficient and effective protection against "servitude" or at least "forced or compulsory" labour.  Reference was made to legislative materials which used the term "modern slavery" to apply to some females, working in private households, who started out as migrant domestic workers, au pairs or "mail-order brides"[20].  The Court referred briefly and dismissively to the possibility that the applicant was a slave within the meaning of Art 1 of the 1926 Slavery Convention, saying[21]:

    "[The Court] notes that this definition corresponds to the 'classic' meaning of slavery as it was practised for centuries.  Although the applicant was, in the instant case, clearly deprived of her personal autonomy, the evidence does not suggest that she was held in slavery in the proper sense, in other words that Mr and Mrs B exercised a genuine right of legal ownership over her, thus reducing her to the status of an 'object'."[22]

    [19](2006) 43 EHRR 16.

    [20](2006) 43 EHRR 16 at 301-304 [49].

    [21](2006) 43 EHRR 16 at 319 [122] (emphasis added).

    [22]In the authoritative French text, "... c'est-à-dire que les époux B aient exercé sur elle, juridiquement, un véritable droit de propriété, la réduisant à l'état d'« objet »":  Affaire Siliadin c France, Requête No 73316/01, 26 July 2005 at 33 [122] (emphasis added).

31. It is understandable, in the context of that case, that the definition of "slavery" was dealt with only in passing and briefly.  Nevertheless, it is to be noted that the Court did not refer to the definition's reference to condition in the alternative to status, or to powers as well as rights, or to the words "any or all".  It may be assumed that there is, in France, no such thing as "a genuine right of legal ownership" of a person.  That Mr and Mrs B did not exercise a genuine right of legal ownership over the applicant was self-evident, but it would not have been a complete answer if there had been a serious issue of slavery in the case.

32. It is important not to debase the currency of language, or to banalise crimes against humanity, by giving slavery a meaning that extends beyond the limits set by the text, context, and purpose of the 1926 Slavery Convention.  In particular it is important to recognise that harsh and exploitative conditions of labour do not of themselves amount to slavery.  The term "slave" is sometimes used in a metaphorical sense to describe victims of such conditions, but that sense is not of present relevance.  Some of the factors identified as relevant in Kunarac, such as control of movement and control of physical environment, involve questions of degree.  An employer normally has some degree of control over the movements, or work environment, of an employee.  Furthermore, geographical and other circumstances may limit an employee's freedom of movement.  Powers of control, in the context of an issue of slavery, are powers of the kind and degree that would attach to a right of ownership if such a right were legally possible, not powers of a kind that are no more than an incident of harsh employment, either generally or at a particular time or place.

33. Although the definition of "slavery" in s 270.1 of the Code is plainly based on the definition in Art 1 of the 1926 Slavery Convention, the wording is not identical. First, s 270.1 refers to "condition", not "status or condition". The explanation for the difference appears from s 270.2. There is no status of slavery under Australian law. Legal ownership of a person is impossible. Consequently s 270.1, in its application to conduct within Australia, is concerned with de facto slavery. In s 270.1, the reference to powers attaching to the right of ownership, which are exercised over a person in a condition described as slavery, is a reference to powers of such a nature and extent that they are attributes of effective (although not legal, for that is impossible) ownership[23]. Secondly, the concluding words of the definition in s 270.1 ("including where such a condition results from a debt or contract made by the person") do not alter the meaning of the preceding words because it is only where "such a condition" (that is, the condition earlier described in terms of the 1926 Slavery Convention) results that the words of inclusion apply. The words following "including", therefore, do not extend the operation of the previous words but make it plain that a condition that results from a debt or a contract is not, on that account alone, to be excluded from the definition, provided it would otherwise be covered by it. This is a common drafting technique, and its effect is not to be confused with that of cases where "including" is used as a term of extension[24].

    [23]Allain, "The Definition of 'Slavery' in General International Law and the Crime of Enslavement within the Rome Statute", paper delivered at the International Criminal Court, Guest Lecture Series of the Office of the Prosecutor, 26 April 2007 at 12-13.

    [24]That this construction conforms to the legislative purpose appears from the Minister's Second Reading Speech:  Australia, Senate, Parliamentary Debates (Hansard), 24 March 1999 at 3076; and Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code, Chapter 9, Offences Against Humanity:  Slavery, Report, (1998) at 29.

34. In the result, the definition of "slavery" in s 270.1 falls within the definition in Art 1 of the 1926 Slavery Convention, and the relevant provisions of Div 270 are reasonably capable of being considered appropriate and adapted to give effect to Australia's obligations under that Convention[25].  They are sustained by the external affairs power.  They are not limited to chattel slavery.

    [25]cf Victoria v The Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at 486-488; [1996] HCA 56.

35. The factors accepted by both the Trial Chamber and the Appeals Chamber in Kunarac are relevant to the application of s 270.3(1)(a) of the Code. The Appeals Chamber was right to point out that consent is not inconsistent with slavery. In some societies where slavery was lawful, a person could sell himself into slavery. Peonage could be voluntary as well as involuntary, the difference affecting the origin, but not the character, of the servitude[26]. Consent may be factually relevant in a given case, although it may be necessary to make a closer examination of the circumstances and extent of the consent relied upon, but absence of consent is not a necessary element of the offence. On the point left open by the Appeals Chamber, it should be concluded that, for the purpose of s 270.3(1)(a) of the Code, the commodification of an individual by treating him or her as an object of sale and purchase, if it exists, is a material factor when a tribunal of fact comes to assess the circumstances of a case, and may involve the exercise of a power attaching to a right of ownership. Having regard to all those matters, there was in the present case evidence to go to a jury that was capable of sustaining verdicts of guilty.

    [26]Clyatt v United States 197 US 207 at 215 (1905).

    The appeal

36. The Court of Appeal quashed the respondent's convictions, and ordered a new trial, substantially upon a single ground of criticism of the primary judge's directions to the jury. The point on which the Court of Appeal differed from the primary judge comes down to a question of the application of the provisions of Ch 2 of the Code to charges of breaches of s 270.3(1)(a). Before turning to those provisions, it is convenient to set out what was said in the Court of Appeal by Eames JA, with whom Maxwell P and Buchanan JA agreed.

37. Eames JA described as "the critical issue" one that "concerns the character of the exercise of power by the accused over the victim."  He said that the prosecutor's argument and the trial judge's directions "did not, in terms, [invite or] direct the jury to consider the subjective intention of the [respondent] – her state of mind – when dealing with the complainants."  This, he said, "was a critical element of the offence that had to be established if the [respondent] was to be convicted."  The jurors, Eames JA held, "were not alerted as to the relevance, when considering the question of intention, of the belief which the [respondent] may have held as to the basis on which she was dealing with each of the complainants."  What his Honour understood to be the relevance of that belief was made clear in his reasons.  The primary judge had told the jury that, in order to convict, they had to find that the complainants were slaves in accordance with the statutory definition as he explained it to them, that the respondent knew the facts that brought the complainants within that definition (although not that she was aware of the legislation, or the legal definition of slavery) and that she intended to possess or use persons in the condition disclosed by those facts.  (It may be noted that the elements of the offence as explained by the primary judge in his directions were somewhat similar to what the Trial Chamber in Kunarac identified as the actus reus and the mens rea for the crime of enslavement.)

38. Eames JA said that the critical element of the offence of possessing a slave, missing from the primary judge's directions, was "[the respondent's] appreciation of the character of her own actions" (emphasis added).  He described the element as follows (references omitted):

    "Fourthly, the accused must have possessed the worker in the intentional exercise of what constitutes a power attaching to a right of ownership, namely, the power of possession.  For that to be the case the accused must be shown to have regarded the worker as though she was mere property, a thing, thereby intending to deal with her not as a human being who had free will and a right to liberty, but as though she was mere property.  However harsh or oppressive her conduct was towards the worker it would not be sufficient for a conviction if, rather than having possessed the worker with the knowledge, intention, or in the belief that she was dealing with her as though she was mere property, the accused possessed her in the knowledge or belief that she was exercising some different right or entitlement to do so, falling short of what would amount to ownership, such as that of an employer, contractor, or manager."

39. In a footnote to his reasons on this point, Eames JA said that it was not necessary to prove that an offender knew that the power to possess or use property was an incident of the right of ownership.  That is correct, but it is not easy to relate that to the concluding words of the paragraph just quoted, which seem to postulate, as exculpatory, a knowledge or belief that the offender was exercising some other right or entitlement.  If it were not necessary to prove that the respondent knew what rights of ownership were, it would be curious if it were relevant to consider what she knew or believed about other rights or entitlements.  One would have expected that a person could be convicted of the offence of possessing a slave without knowing, or caring, anything about possible alternative sources of rights or entitlements.

40. In a further footnote, Eames JA supported the above paragraph by references to ss 5.2(2) and 5.2(3) of the Code, which, he said, were both relevant. This is a matter to which it will be necessary to return.

41. Later, Eames JA said (in a passage that also is difficult to reconcile with the first of the footnotes mentioned above):

    "What the judge omitted to state was that the Crown had to prove intention to exercise power over the slave in the knowledge or belief that the power that was being exercised was one attaching to ownership.  That is, the power must have been intentionally exercised as an owner of property would exercise power over that property, acting in the knowledge or belief that the victim could be dealt with as no more than a chattel.  It would not suffice for the power to have been exercised by the accused in the belief that she was dealing with the victim as her employee, albeit one in a subservient position and being grossly exploited."

42. These passages, notwithstanding the footnote, indicate that Eames JA had in mind that it was necessary for the prosecution to establish a certain state of knowledge or belief on the part of the respondent as to the source of the powers she was exercising, in addition to an intention to exercise those powers.  They appear to require advertence by the respondent to the different capacities (owner or employer) by virtue of which she might have been able to exercise powers.  This was made even clearer by the form of an answer which his Honour said should have been given to a question asked by the jury: 

    "You must be satisfied that the accused was intentionally exercising a power that an owner would have over property and was doing so with the knowledge or in the belief that the complainant was no more than mere property.

    If it is reasonably possible that the accused acted to possess or to use the complainant with the knowledge or in the belief that she was exercising her rights and entitlements as her employer or contractor and not in the belief that the complainant had no rights or free will, but was property, a thing, over whom she could exercise power as though she owned her then, however exploitative and unfair you may think her treatment of the complainant was, it would not constitute the offences of intentionally possessing or using a slave."  (emphasis added)

43. This cannot be accepted.  What the respondent knew or believed about her rights and entitlements as an employer or contractor, as distinct from rights of property, in the perhaps unlikely event that she knew or believed anything on that subject, was not something that the prosecutor had to establish or that the jury had to consider. 

44. It seems likely that the Court of Appeal was, with good reason, concerned about a problem presented by s 270.3(1)(a), at least in a borderline case: how is a jury to distinguish between slavery, on the one hand, and harsh and exploitative conditions of labour, on the other? The answer to that, in a given case, may be found in the nature and extent of the powers exercised over a complainant. In particular, a capacity to deal with a complainant as a commodity, an object of sale and purchase, may be a powerful indication that a case falls on one side of the line. So also may the exercise of powers of control over movement which extend well beyond powers exercised even in the most exploitative of employment circumstances, and absence or extreme inadequacy of payment for services. The answer, however, is not to be found in the need for reflection by an accused person upon the source of the powers that are being exercised. Indeed, it is probably only in a rare case that there would be any evidence of such consideration.

45. It should also be noted that the concluding words of the definition of slavery in s 270.1 of the Code show that the existence of a contract between an alleged offender and a complainant is not inconsistent with the commission of an offence. The legislation, in terms, accepts that a condition of slavery may result from a contract. The above reasoning appears to construct a false dichotomy between employment and effective ownership, in addition to importing a requirement of rights analysis by the offender which is unnecessary.

46. Chapter 2 of the Code does not provide support for the Court of Appeal's reasoning. In the case of both of the offences alleged in relation to each complainant, the physical element of the offence was conduct, which is defined to include both an act and a state of affairs. It was not suggested by the Court of Appeal that recklessness, as the default element in relation to circumstances, had a role to play[27].  As Brennan J pointed out in He Kaw Teh v The Queen[28], having something in possession is more easily seen as a state of affairs that exists because of what the person who has possession does in relation to the thing possessed.  Both possessing a slave and using a slave are conduct, and the prosecution had to establish the existence of the conduct and one of the fault elements specified in s 5.1(1). The prosecution case was conducted on the basis that the relevant fault element was intention. In a footnote earlier mentioned, Eames JA said that all of sub-ss (1), (2) and (3) of s 5.2 were relevant. This is not easy to understand: sub-s (1) applies where the physical element is conduct; sub-s (2) applies where the physical element is a circumstance; sub-s (3) applies where the physical element is a result. Section 4.1 says a physical element may be conduct or a result of conduct or a circumstance in which conduct or a result of conduct occurs.

    [27]cf R v Saengsai-Or (2004) 61 NSWLR 135.

    [28](1985) 157 CLR 523 at 564; [1985] HCA 43.

47. The physical element was conduct (which includes a state of affairs); the fault element was intention. It was, therefore, s 5.2(1) that was relevant. A person has intention with respect to conduct if he or she means to engage in that conduct. Knowledge or belief is often relevant to intention[29].  If, for example, it is the existence of a state of affairs that gives an act its criminal character, then proof of knowledge of that state of affairs ordinarily will be the best method of proving that an accused meant to engage in the proscribed conduct.

    [29]He Kaw Teh v The Queen (1985) 157 CLR 523 at 570.

48. The terms of s 270.3(1) reinforce the conclusion that intention is the relevant fault element. The offences in question were of intentionally possessing a slave or intentionally exercising over a slave another power (here, using) attaching to the right of ownership. It is agreed on all sides that it was unnecessary for the prosecution to prove that the respondent knew or believed that the complainant was a slave, or even that she knew what a slave was. Thus, Eames JA said that the respondent "does not have to have known the definition of a slave, nor even that there was an offence of slavery". So much is uncontroversial. If a person is known by an accused to possess the qualities that, by virtue of s 270.1, go to make that person a slave, then the state of knowledge relevant to intention, and therefore intention itself, may be established regardless of whether the accused appreciates the legal significance of those qualities. An accused does not have to know anything about the law in order to contravene s 270.3(1)(a).

49. Insofar as a state of knowledge or belief is factually relevant to intention as the fault element of the offence, it is knowledge or belief about the facts relevant to possession or using, and knowledge or belief about the facts which determine the existence of the condition described in s 270.1. This is a condition that results from the exercise of certain powers. Whether the powers that are exercised over a person are "any or all of the powers attaching to the right of ownership" is for a jury to decide in the light of a judge's directions as to the nature and extent of the powers that are capable of satisfying that description. This is not to ignore the word "intentionally" in s 270.3(1). Rather, it involves no more than the common exercise of relating the fault element to the physical elements of the offence[30].

    [30]cf He Kaw Teh v The Queen (1985) 157 CLR 523 at 568.

50. In this case, the critical powers the exercise of which was disclosed (or the exercise of which a jury reasonably might find disclosed) by the evidence were the power to make the complainants an object of purchase, the capacity, for the duration of the contracts, to use the complainants and their labour in a substantially unrestricted manner, the power to control and restrict their movements, and the power to use their services without commensurate compensation.  As to the last three powers, their extent, as well as their nature, was relevant.  As to the first, it was capable of being regarded by a jury as the key to an understanding of the condition of the complainants.  The evidence could be understood as showing that they had been bought and paid for, and that their commodification explained the conditions of control and exploitation under which they were living and working.

51. It was not necessary for the prosecution to establish that the respondent had any knowledge or belief concerning the source of the powers exercised over the complainants, although it is interesting to note that, in deciding to order a new trial, the Court of Appeal evidently took the view that the evidence was capable of satisfying a jury, beyond reasonable doubt, of the existence of the knowledge or belief that the Court of Appeal considered necessary.

52. The ground on which the Court of Appeal regarded the primary judge's directions as inadequate has not been sustained.

    The third ground of proposed cross-appeal

53. This ground is:

    "The Court of Appeal erred in failing to hold that the verdicts are unreasonable or cannot be supported having regard to the evidence."

54. The argument that the jury's verdict was unreasonable, because of the inadequacy of the evidence, was considered and rejected by the Court of Appeal, applying the principles stated by this Court in M v The Queen[31].  Eames JA noted that much of the evidence in the case was uncontested, although there were some disputes of fact, especially in relation to some testimony as to aspects of the restraint applied to the movements of the complainants.

    [31](1994) 181 CLR 487; [1994] HCA 63.

55. A cognate question was the subject of further argument and further reasons for judgment.  When the Court of Appeal delivered its reasons for quashing the convictions (on the ground discussed earlier) it left open for further argument and consideration the question whether there should be an order for a new trial.  After further argument, Eames JA said that his earlier reasons were intended to embrace a conclusion that the evidence in the case had sufficient cogency to justify a conviction.  He said it did not follow automatically that there should be a new trial, but went on to deal with other relevant considerations.  Finally, the Court of Appeal ordered a new trial.

56. It is likely that a good deal would have turned on the jury's assessment of DS and the complainants. Subject to that, there was cogent evidence of the intentional exercise of powers of such a nature and extent that they could reasonably be regarded as resulting in the condition of slavery, and the conduct, to which s 270.3(1)(a) was directed. There was no error of principle by the Court of Appeal on this aspect of the case, and it has not been shown that the interests of justice require a grant of special leave to cross-appeal on this ground.

    Orders

57. I propose that the following orders be made:

    1.        Appeal allowed.

    2.Special leave to cross-appeal on the first and second grounds in the proposed notice of cross-appeal granted.  Cross-appeal on those grounds treated as instituted, heard instanter, and dismissed.

    3.Special leave to cross-appeal on the third ground in the proposed notice of cross-appeal refused.

    4.Set aside orders 3, 4 and 5 of the orders of the Court of Appeal of the Supreme Court of Victoria made on 29 June 2007 and, in their place, order that the appeal to that Court against conviction be dismissed.

58. Notwithstanding that these are criminal proceedings, the appellant, on the hearing of the application for special leave to appeal, undertook to pay the costs of the respondent of the application for special leave to appeal and of the appeal to this Court.  Consistently with that undertaking, the Court should order that the appellant pay the respondent's costs of the application for special leave to appeal and of the appeal to this Court.

59. There was also an application to the Court of Appeal for leave to appeal against sentence.  Because the Court of Appeal allowed the appeal against conviction, it did not deal with the matter of sentence.  The matter should be remitted to the Court of Appeal for its consideration of the application for leave to appeal against sentence.

60. GUMMOW J.   I agree with the orders proposed by the Chief Justice and with his Honour's reasons.  I agree also with the reasons of Hayne J.

61. KIRBY J. These proceedings arise out of convictions entered against Wei Tang ("Ms Tang") following jury verdicts. The convictions are said to be the "first convictions in Australia" of "slavery offences" contrary to s 270.3(1)(a) of the Criminal Code (Cth) ("the Code")[32]. These offences are found in Ch 8 of the Code dealing with "Offences against humanity".

    [32]R v Wei Tang (2007) 16 VR 454 at 456 [4].

62. Ms Tang sought, and obtained, leave to appeal against her convictions to the Court of Appeal of the Supreme Court of Victoria[33].  That Court, whilst rejecting her submission that verdicts of acquittal should be entered, set aside the convictions and ordered a retrial of the charges[34]. 

    [33](2007) 16 VR 454 at 497 [200].

    [34]R v Wei Tang [2007] VSCA 144 at [13]-[14]. See (2007) 16 VR 454 at 497 [199]-[200].

63. The prosecution, by special leave, has appealed to this Court seeking restoration of Ms Tang's convictions.  For her part, Ms Tang has sought special leave to cross-appeal on three grounds.  If successful on the cross-appeal, Ms Tang again seeks the substitution of verdicts of acquittal.

64. The other members of this Court[35] have concluded that the prosecution is entitled to succeed; its appeal should be allowed; the convictions of Ms Tang should be restored; and the cross-appeal rejected.  I agree with most of their reasons.  However, upon what Eames JA, in the Court of Appeal, described as "the critical issue" in the proceedings[36], I disagree with my colleagues.  On that issue, in effect, I concur in the approach and conclusion expressed in the Court of Appeal by Eames JA (with whom Maxwell P and Buchanan JA agreed without additional reasons[37]).

    [35]Reasons of Gleeson CJ at [57] and reasons of Hayne J at [168].  Gummow, Heydon, Crennan and Kiefel JJ agreeing with both.

    [36](2007) 16 VR 454 at 469 [66]; see also reasons of Hayne J at [133].

    [37](2007) 16 VR 454 at 456 [1], [2].

65. The "critical issue" concerns the accuracy and adequacy of the directions given to the jury at the second trial of Ms Tang.  (In the first trial, the jury failed to agree on verdicts in relation to Ms Tang[38].) The controversial point involves the meaning and application of the provisions of the Code that define the offences with which Ms Tang was charged and the content of the "fault elements"[39] (relevantly the "intention" aspect) necessary to constitute those offences.  It concerns what the trial judge was obliged to tell the jury in that respect about the law governing these offences.

    [38](2007) 16 VR 454 at 458 [17].

    [39]The Code, Ch 2, Div 5, s 5.1. The relevant provisions are set out in the reasons of Gleeson CJ at [5].

66. I concede that there is room for differences of opinion on the issue that separates my opinion from that reached by the majority in this Court. Such differences may arise because of the difficulties in interpreting the novel provisions of the Code[40]; the absence of earlier explorations of those provisions by appellate decisions[41]; the necessary interaction of the applicable Australian law with the relevant provisions of international law – in particular, the Convention to Suppress the Slave Trade and Slavery ("the 1926 Slavery Convention")[42] and the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery ("the 1956 Supplementary Convention")[43]; and the mass of evidentiary material from the lengthy trial of Ms Tang. Such evidence was relevant for two purposes: first, as to the quality of the relationship between Ms Tang and the five women ("the complainants") whom she was charged with possessing as "a slave" or using as "a slave" contrary to s 270.3(1)(a) of the Code; and secondly, as to the suggested "fault element" ("intention") that the prosecution was required to prove in order to secure convictions[44].

    [40]See (2007) 16 VR 454 at 468 [60], 487 [143].

    [41](2007) 16 VR 454 at 475 [93].

    [42]Opened for signature in 1926 and entered into force in 1927.  See [1927] ATS 11; 212 UNTS 17.   

    [43]Opened for signature in 1956 and entered into force in 1957.  See [1958] ATS 3; 266 UNTS 3.

    [44]cf (2007) 16 VR 454 at 489 [157].

67. Whilst I agree that the other challenges mounted for Ms Tang fail, in my opinion the approach of the Court of Appeal to the "critical issue" was correct.  That approach is more consonant with:

    .The proper analysis of the Code;

    .The basic doctrine of criminal law in Australia, against the background of which the Code is written, on the operation of "intention" in respect of serious criminal offences;

    .The principles of interpretation applicable to the legislation in question;

    .A proper view of the relationship between the Code provisions and the international law that they seek to apply in Australia; and

    .The various other considerations of legal principle and policy to which regard may properly be had. 

68. We do not advance the correct application in Australia of a contemporary statutory provision to tackle modern issues of "slavery" and trafficking in "sexual slaves" by distorting the essential ingredients of serious criminal offences as provided by the Parliament.  Nor do we do so by diminishing the elements that the prosecution must prove and that the trial judge must accurately explain to the jury.  In this case, that element is the "intention" necessary to constitute such a serious offence, with the exposure that it brings, upon conviction, to special calumny and to extremely severe punitive consequences. 

69. In a case such as the present, there is an inescapable dilemma in the operation of fundamental principles of human rights, reflected in the Code and in Australian law more generally. Protection of persons alleged to have been trafficked as "sexual slaves" is achieved in this country in a trial system that also provides fundamental legal protections for those who are accused of having been involved in such offences. As is often observed, the protection of the law becomes specially important when it is claimed by the unpopular and the despised accused of grave wrong-doing[45].

    [45]cf Adelaide Company of Jehovah's Witnesses Inc v The Commonwealth (1943) 67 CLR 116 at 124 per Latham CJ; [1943] HCA 12.

70. In my opinion, the appeal fails and so does Ms Tang's attempt, by cross-appeal, to secure the substitution of verdicts of acquittal.  As the Court of Appeal proposed, an order for a retrial, freed from the legal errors of the second trial, is the correct outcome.

    The facts

71. The general background:  The general factual background is explained in the reasons of Gleeson CJ[46].  There were various points of difference in the extensive evidence called at the trial.  For example, in respect of one of the complainants, there were differences as to the arrangements whereby she had travelled to Australia from Thailand and as to the persons involved in making those arrangements.  However, much of the evidence tendered against Ms Tang was not in dispute[47]. The battleground, instead, lay in the interpretation of that evidence and its legal effect. The relevant question was whether the evidence fell within the particular provisions of the Code governing, first, the "physical elements" of the offences provided in s 270.3(1) with which Ms Tang was charged, and secondly, the "fault elements" that also had to be proved in order to satisfy those charges[48]. 

    [46]Reasons of Gleeson CJ at [6]-[18].

    [47](2007) 16 VR 454 at 495 [191].

    [48]See the Code, ss 2.1, 3.1, 3.2, 5.1. These provisions are set out in the reasons of Gleeson CJ at [5].

72. In this appeal, the novelty of the meaning of the "slavery offences" provided by s 270.3 of the Code gives rise to the first problem of interpretation. This country has never lawfully had "slavery" in the conventional meaning of that term and still does not. The novelty of the "general principles of criminal responsibility"[49] and the specification of the essential elements of an offence under the Code give rise to the second problem of interpretation. Those problems of interpretation must be made concrete by reference to the evidence at the trial. Such evidence will help to test whether the trial judge properly understood, and explained, the provisions of the Code so as to render the verdicts of the second jury (and the convictions that followed) both lawful and reasonable. The evidence will also help to answer the legal propositions advanced by the contesting parties.

    [49]The chapter heading to Ch 2 of the Code. See reasons of Gleeson CJ at [5].

73. At the outset, it is important to acknowledge that the evidence was by no means incontestable or clear-cut.  There are two particular indications of this:

    .First, upon basically the same evidence, the first jury summoned to try Ms Tang and a co-accused (Mr Paul Pick, who was the manager of the licensed brothel "Club 417") acquitted Mr Pick on eight counts.  The jury were unable to agree on two further counts against him or upon any of the counts presented against Ms Tang.  Mr Pick subsequently applied successfully for a nolle prosequi[50]; and

    .Secondly, following very extensive directions given by the trial judge to the jury in the second trial, the jury returned twice to seek judicial clarification about the requirements of intention.  This became the "critical issue" in the Court of Appeal as it is likewise in this Court.  What took place and the terms of the questions asked by the jury and directions given by the trial judge are explained in detail by Eames JA[51]. 

    [50](2007) 16 VR 454 at 458 [17].

    [51](2007) 16 VR 454 at 481-483 [122]-[129].

74. The first question was asked on the first day of the jury's deliberations (after a charge that had proceeded over three days).  The question was presented after the jury had already been deliberating for five hours.  The second question was asked the following afternoon, after the jury had been deliberating for over a day.  It will be necessary to return to these developments[52]. 

    [52]See these reasons below at [123]-[125].

75. For a complete understanding of my reasons, it is essential to appreciate how the questions emerged; the preceding complex and confusing instructions given to the jury on the subject; and the further instruction that followed which, with respect, was partly non-responsive and partly added to the uncertainty and confusion.  This is all set out with admirable clarity by Eames JA.  If nothing else, it indicates the confusion of the instructions given to the jury on the subject of the intention necessary to justify guilty verdicts; the correct focus that the jury themselves were giving to the "critical issue"; and thus the great importance of that issue to their deliberations in the forensic circumstances of the second trial. 

76. The successive questions from the jury indicate the significance that they were assigning to the quality and content of the "intention" of Ms Tang which the prosecution had to prove to secure guilty verdicts.  The length of the jury's deliberations and their repeated questions on this issue also indicate (correctly in my view) that this jury, like the earlier jury in the first trial, did not find reaching their verdicts in these proceedings an easy task, considering the way in which the evidence emerged in the second trial.

77. In these reasons, I incorporate by reference the chronicle set out by Eames JA in the Court of Appeal. This includes the lengthy directions given to the jury about the meaning of the words "possession" and "use" of a "slave", contrary to the Code; the jury's successive questions; the supplementary directions then given by the trial judge; and the further supplementary directions given after trial counsel for Ms Tang took exception to aspects of the judge's first attempt[53]. 

    [53]This is set out, with extracts from the trial, at (2007) 16 VR 454 at 475-487 [93]-[141].

78. Although additional reference will be made below to these questions and the resulting redirections, because mine is a minority opinion in this Court, I will not set the passages out seriatim.  They are not set out in other reasons.  Nevertheless, to understand the conclusion that Eames JA and the other members of the Court of Appeal reached, it is essential to appreciate the deficiencies in the directions given to the jury on the critical subject of "intention".  No other course would do justice to Ms Tang's case or to the Court of Appeal's analysis.

79. Evidence against statutory slavery: Allowing, for the moment, that the Code expands somewhat the traditional definition of "slavery" in international law (and in more recent times under the 1926 Slavery Convention and the 1956 Supplementary Convention), and that it may do this in Australia in conformity with the Constitution, there was certainly evidence before the jury in the second trial that, in combination, could have supported the acquittal of Ms Tang:

    (1)The trial was conducted on the footing that each of the complainants, in their country of nationality (Thailand), had earlier worked in the sex industry[54].  In this sense, they were not tricked into employment in Australia on a false premise or led to believe that they would be working in tourism, entertainment or other non-sexual activities[55].  Whilst trafficking in persons for sexual or like purposes is an undeniable feature of modern population movements, equally, some such movements are undoubtedly economically motivated[56]. As such, they would not constitute "slavery" offences under s 270.3(1)(a) of the Code if undertaken with appropriate knowledge and consent by an adult person who was able to give such consent;

    (2)Each complainant was above the legal age of consent.  It was not suggested (and it did not appear from the evidence) that they were in any way legally incompetent or that they had been subjected to coercion to persuade them to come to Australia to work in the sex industry.  It was accepted that they came to this country voluntarily, knowing at least the general nature and incidents of the work they were agreeing to perform[57];

    (3)Whilst the evidence revealed several offences against the Migration Act 1958 (Cth) and Regulations and perhaps State offences, the brothel in Melbourne in which the complainants worked as commercial sex workers and their work were not illegal under Victorian law. The brothel held a licence pursuant to the Prostitution Control Act 1994 (Vic)[58].  Although activities of prostitution were previously illegal under Australian law (as they still are in many countries) they were not, without more, illegal in the subject brothel.  Necessarily, Ms Tang's trial was unconcerned with any migration or other offences that she, the complainants or others might have committed.  No such offences were before the jury;

    (4)The evidence indicated that the complainants were not imprisoned in the brothel or in their place of residence.  The largest evidentiary dispute at trial concerned the extent to which the complainants were able to move freely and whether their accommodation was subject to a deadlock controlling access and egress[59].  It is appropriate to accept the trial judge's finding on sentencing that the complainants were not kept under lock and key[60] although initially they were "effectively restricted".  In part, such restrictions were adopted because of the common objective of the complainants and Ms Tang to avoid detection by migration authorities and deportation from Australia as unlawful aliens present in the country without relevant visas[61];

    (5)The "fee" paid to the "recruiters" in Thailand who arranged for the complainants to travel to Australia (and eventually to Melbourne)[62] was never fully explained, still less justified, to the complainants.  However, there was no doubt that some costs were incurred by the "recruiters".  These included, by inference, procuring visas; arranging land and air transport[63]; providing return airfares for the complainants; arranging and paying for accompanying persons (usually an elderly couple so as to avoid detection at the border); providing initial and later accommodation; and a "profit margin"[64].  The "fee" extracted would arguably fall to be considered (at least in part) in the context of the law, culture and economy of Thailand where it was orally agreed.  It would also arguably need to be judged in the context that the complainants voluntarily entered Australia aware of the type of work they were to perform, inferentially so as to make their lives better as a consequence and appreciating that it would result in a debt to those who had made the necessary arrangements to facilitate their travel and relocation[65];

    (6)As was essential to their successful initiation into the sex industry in Australia, the complainants themselves participated in the subterfuge of pretending to visit Australia on a tourist visa[66];

    (7)After the complainants commenced work in the brothel, their passports and return air tickets were taken and retained in a secure place.  It was stated that this was done to permit the nationality and identity of the complainants to be established, in the event of investigations by migration authorities.  Also, it was done to avoid loss or theft of the documents.  This is in addition to any motive to prevent the non-consensual departure of the complainants;

    (8)It was agreed that the complainants enjoyed a "free day" each week; that each was credited with a notional sum of $50 per customer in the reduction of their outstanding debt; and that, on the free day, each complainant could either rest or continue to work and receive $50 per customer for themselves[67].  The evidence also showed that the complainants were well fed and provided for[68].  Two had actually paid off their debts[69] within six months of arrival.  Assuming that they worked every day of the week (as most did), this would mean attending to an average of five clients a day.  The two who had paid off their debts stayed and continued to work in the brothel.  This was strongly relied on as contradicting a relationship that could be characterised as "slavery" in any meaningful sense of that word.  It was common ground that once the debt was paid, each complainant was completely free to choose for herself the hours of work and place of accommodation[70].  There was conflicting and unclear evidence about the freedom of movement permitted before the debt was paid, other than transfer between the brothel and the residence.  Some evidence suggested that at least one complainant had formed a personal relationship which she pursued during that interval;

    (9)Once the complainants and their migration status were discovered, they were, by law, subject to immediate detention and deportation from Australia.  The availability of legal relief against that course was limited.  One such form of relief, introduced soon after these events took place, was the provision of both temporary and longer-term visas to stay in Australia[71].  The latter were available only to permit a person, such as one or more of the complainants, to stay if they made a "significant contribution" to a prosecution of an accused offender for criminal offences; and

    (10)There was no evidence that the complainants were subjected to rape, violence or other such offences[72].  This sometimes marks the predicament of those (generally women and children) who are trafficked for the purpose of sexual slavery and sexual debt bondage[73].

    [54](2007) 16 VR 454 at 456-457 [5].

    [55]cf Dorevitch and Foster, "Obstacles on the Road to Protection:  Assessing the Treatment of Sex-Trafficking Victims under Australia's Migration and Refugee Law", (2008) 9 Melbourne Journal of International Law 1 at 8, 38 ("Dorevitch and Foster").

    [56]See Dorevitch and Foster, (2008) 9 Melbourne Journal of International Law 1 at 38-39.

    [57]Reasons of Gleeson CJ at [6]; reasons of Hayne J at [166].

    [58](2007) 16 VR 454 at 457 [8].

    [59](2007) 16 VR 454 at 495 [191].

    [60](2007) 16 VR 454 at 495 [192]. See also at 496 [196].

    [61](2007) 16 VR 454 at 457 [8].

    [62]The "fee" varied but was about $20,000. See reasons of Gleeson CJ at [12].

    [63]Reasons of Gleeson CJ at [8].

    [64]Reasons of Gleeson CJ at [8], [12].

    [65](2007) 16 VR 454 at 488 [149].

    [66](2007) 16 VR 454 at 457 [6].

    [67]Reasons of Gleeson CJ at [14].

    [68]Reasons of Gleeson CJ at [16].

    [69]The debt varied but was about $45,000, inclusive of the "fee" paid or payable to the Thai "recruiters".

    [70]Reasons of Gleeson CJ at [12], [17].

    [71]Dorevitch and Foster, (2008) 9 Melbourne Journal of International Law 1 at 10:  "Effective since 1 January 2004,  the … framework consists of four types of visa:  a new Bridging Visa F (Subclass 060) ('BVF'); the existing Criminal Justice Stay Visa ('CJSV'); a Temporary Witness Protection (Trafficking) Visa ('TWPTV'); and a Permanent Witness Protection (Trafficking) Visa ('PWPTV')" (footnotes omitted).   

    [72]cf Halley, "Rape in Berlin:  Reconsidering the Criminalisation of Rape in the International Law of Armed Conflict", (2008) 9 Melbourne Journal of International Law 78 at 113.

    [73]Dorevitch and Foster, (2008) 9 Melbourne Journal of International Law 1 at 19-20.

137. The language of the Convention, whether in its definition of slavery or otherwise, cannot be read as if it gave effect to or reflected particular legal doctrines of ownership or possession developed in one or more systems of municipal law. Nothing in the preparatory materials relating to the Convention suggests that it was intended to embrace any particular legal doctrine of that kind and the text of the Convention itself does not evidence any such intention. Rather, slavery (both as a legal status and as a factual condition) was defined only by a description that assumed an understanding, but did not identify the content, of "the powers attaching to the right of ownership". Yet for the purposes of creating particular norms of individual behaviour enforceable by application of the criminal law, the definition of "slavery" that is adopted in s 270.1 of the Code takes as its origin the definition of slavery, as a condition, that was given in the Convention.

138. What are the "powers attaching to the right of ownership"? How are they to be identified when the Code is applied, given that the Convention did not use the term "ownership", or the expression "powers attaching to the right of ownership", with a legal meaning that was anchored in any particular legal system? Both "ownership" and the "powers attaching to the right of ownership" must be understood as ordinary English expressions and applied having regard to the context in which they are to be applied. The chief feature of that context is that the subject of "ownership", the subject of the exercise of "powers attaching to the right of ownership", is a human being.

139. Because "ownership" cannot be read in s 270.1 of the Code as a technical legal term whose content is spelled out by a particular legal system, it is a word that must be read as conveying the ordinary English meaning that is captured by the expression "dominion over" the subject matter. That is, it must be read as identifying a form of relationship between a person (the owner) and the subject matter (another person) that is to be both described and identified by the powers that the owner has over that other.

140. "Ownership" ordinarily is to be understood as referring to a legal relationship between owner and subject matter.  An "owner" has an aggregation of powers that are recognised in law as the powers permissibly exercised over the subject matter[153]. It is a term that connotes at least an extensive aggregation of powers, perhaps the fullest and most complete aggregation that is possible. But s 270.1 cannot be read as requiring the identification of an aggregation of powers that the law permits to be exercised over a person because Australian law does not recognise, and never has recognised, the possibility that one person may own another. There is not, and never has been, legal endorsement in Australia for the creation or maintenance of such a concentration of legally recognised powers in one person over another as would amount to "ownership" of that person. In particular, Australian law does not recognise, and never has recognised, any right to "possess" a person.

     [153]cf Yanner v Eaton (1999) 201 CLR 351 at 365‑366 [17], 388‑389 [85]‑[86]; [1999] HCA 53.

141. It follows that neither the definition of slavery in s 270.1, nor the references to "a slave" in s 270.3, invite attention to what legal rights the "owner" has over the person who it is alleged is "a slave". Rather, the references in s 270.3(1)(a) of the Code to possessing a slave, and exercising over a slave "any of the other powers attaching to the right of ownership", invite attention to what the alleged offender has done. In particular, what powers has the alleged offender exercised over the person who is alleged to be a slave? And what the alleged offender has done must then be measured against a factual construct: the powers that an owner would have over a person if, contrary to the fact, the law recognised the right to own another person.

142. As explained earlier, to constitute "ownership", one person would have dominion over that other person.  That is, the powers that an owner of another person would have would be the powers which, taken together, would constitute the complete subjection of that other person to the will of the first.  Or to put the same point another way, the powers that an owner would have over another person, if the law recognised the right to own that other, would be powers whose exercise would not depend upon the assent of the person over whom the powers are exercised.

143. How are those abstract ideas to be given practical application?  It is convenient to approach that question by reference to the particular allegations in this matter, where it was alleged that the respondent had "possessed" each complainant as a slave and that she had "used" each complainant as a slave.

144. The first step to take is to recognise that both the offence of possessing a slave, and the offence of exercising over a slave any of the powers attaching to the right of ownership, are cast in terms that appear to present two questions:  first, did the accused possess, or exercise some other power attaching to the right of ownership over, the complainant and second, was the complainant a slave?  But the two questions merge.

145. The condition that must be proved is that the person meets the description "a slave".  The offence is intentionally to possess a slave or intentionally to exercise over a slave any of certain powers.  The condition of slavery (which is what provides the content of the term "a slave") is defined as the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.  It thus follows that proof of the intentional exercise of any of the relevant powers over a person suffices to establish both that the victim is a slave and that the accused has done what the legislation prohibits.

146. The next step to take is to observe that the Code's definition of "slavery" in s 270.1 speaks of "the powers attaching to the right of ownership" (emphasis added). Section 270.3 of the Code shows that possessing a slave is one particular power attaching to the right of ownership. And it is also clear that possessing a slave is not the only power attaching to the right of ownership. So much is made clear by the use of the word "other" in the phrase "other powers attaching to the right of ownership". But s 270.1 does not further identify what those powers are.

147. As Brennan J said in He Kaw Teh v The Queen[154], "'possession' is a term which implies a state of mind with respect to the thing possessed".  In that case, Brennan J identified[155] the actus reus of possession of a prohibited import as being that the object of possession was physically in the custody or under the control of the accused.  And as Dawson J pointed out in the same case[156], "[p]ossession may be an intricate concept for some purposes, but the intricacies belong to the civil rather than the criminal law".  That is why, in the criminal law, "possession" is best understood as a reference to a state of affairs in which there
     

     [154](1985) 157 CLR 523 at 585; [1985] HCA 43.

     [155](1985) 157 CLR 523 at 585‑586.

     [156](1985) 157 CLR 523 at 599.

     [157]He Kaw Teh v The Queen (1985) 157 CLR 523 at 599 per Dawson J.

     is[157] "the intentional exercise of physical custody or control over something". In considering s 270.3(1)(a) of the Code, however, it will also be important to recognise that the right to possess a subject matter, coupled with a power to carve out and dispose of subsidiary possessory rights, is an important element in that aggregation of powers over a subject matter that is commonly spoken of as "ownership".

148. Just as the word "ownership" evokes notions of the dominion of one person over another, to speak of one person possessing another (in the sense of having physical custody of or control over that other) connotes one person having dominion over the other.  Or to put the same point in different words, possession, like ownership, refers to a state of affairs in which there is the complete subjection of that other by the first person.

149. One, and perhaps the most obvious, way in which to attempt to give practical content to the otherwise abstract ideas of ownership or possession (whether expressed by reference to subjection, dominion or otherwise) is to explore the antithesis of slavery.  That is, because both the notion of ownership and of possession, when applied to a person, can be understood as an exercise of power over that person that does not depend upon the assent of the person concerned, it will be relevant to ask why that person's assent was irrelevant.  Or, restating the proposition in other words, in asking whether there was the requisite dominion over a person, the subjection of that person, it will be relevant to ask whether the person concerned was deprived of freedom of choice in some relevant respect and, if so, what it was that deprived the person of choice.  In that inquiry some assistance is to be had from United States decisions about legislation giving effect to the Thirteenth Amendment to the United States Constitution.

150. Those cases explore what is meant when it is said that a person had no choice but to continue to serve a person accused of holding the first in "involuntary servitude".  And they show that a person may be deprived of choice to the requisite extent, not just by force or the threat of force, but also by threats to invoke the proper application of the law to the detriment of the person threatened.  But examination of the cases will also show why analysis of who is "a slave" by reference only to freedom or absence of choice of the alleged victim, or by reference only to the nature of the coercion applied by an accused, is not determinative of that question.

151. The Thirteenth Amendment provides, in s 1, that:

     "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

     Section 2 of the Amendment gives the Congress power to make appropriate laws to enforce the Amendment.

152. The prime purpose of outlawing "involuntary servitude" in the Thirteenth Amendment, and in statutes enacted to enforce it, was described by Judge Friendly, speaking for the plurality of the United States Court of Appeals for the Second Circuit in United States v Shackney[158], as being:

     "to abolish all practices whereby subjection having some of the incidents of slavery was legally enforced, either directly, by a state's using its power to return the servant to the master ... or indirectly, by subjecting persons who left the employer's service to criminal penalties".

     But as Judge Friendly went on to point out, the Thirteenth Amendment is not addressed solely to State action.  In the United States it has been held to apply in cases of physical restraint[159], threats of imprisonment, or physical violence[160].  In Shackney, the plurality held[161] that:

     "a holding in involuntary servitude means to us action by the master causing the servant to have, or to believe he has, no way to avoid continued service or confinement ... not a situation where the servant knows he has a choice between continued service and freedom, even if the master has led him to believe that the choice may entail consequences that are exceedingly bad".  (emphasis added)

     The third member of that Court, Judge Dimock, held[162] that servitude is involuntary only "[w]here the subjugation of the will of the servant is so complete as to render him incapable of making a rational choice".

     [158]333 F 2d 475 at 485‑486 (1964).

     [159]Davis v United States 12 F 2d 253 (1926).

     [160]Bernal v United States 241 F 339 (1917); Pierce v United States 146 F 2d 84 (1944); United States v Ingalls 73 F Supp 76 (1947).

     [161]333 F 2d 475 at 486 (1964).

     [162]333 F 2d 475 at 488 (1964).

153. Twenty years later, in 1984, the United States Court of Appeals for the Ninth Circuit expressed the test differently.  In United States v Mussry[163], a case about Indonesian domestic workers, the Court of Appeals held that:

     "A holding in involuntary servitude occurs when an individual coerces another into his service by improper or wrongful conduct that is intended to cause, and does cause, the other person to believe that he or she has no alternative but to perform the labor."  (emphasis added)

     In that case the prosecution alleged that[164]:

     "[the defendants] knowingly placed [the Indonesian servants] in a strange country where [they] had no friends, had nowhere to go, did not speak English, had no work permit, social security card, or identification, no passport or return airline ticket to return to Indonesia, [were] here as ... illegal alien[s], with no means by which to seek other employment, and with insufficient funds to break [their] contract[s] by paying back to defendant[s] the alleged expenses incurred in getting ... here".

     The Court held that the conduct alleged by the prosecution, if proved, was sufficient to demonstrate improper or wrongful acts by the defendants intended to coerce the Indonesian servants into performing service for the defendants.  The Court further held[165] that "the use, or threatened use, of law or physical force is not an essential element of a charge of 'holding' in involuntary servitude".  Other forms of coercion may also result in a violation of the involuntary servitude statutes.

     [163]726 F 2d 1448 at 1453 (1984).

     [164]726 F 2d 1448 at 1453 (1984).

     [165]726 F 2d 1448 at 1455 (1984).

154. Subsequently, the Supreme Court of the United States held in United States v Kozminski[166] that the use, or threatened use, of physical or legal coercion was essential to proof of involuntary servitude[167].  The Court rejected the view that the statute then in question extended to cases the Court identified[168] as the compulsion of services "through psychological coercion".  Such a test was rejected[169] as depending "entirely upon the victim's state of mind".  Accordingly, while deprivation of the victim's will was essential, the Court held that the deprivation must be enforced by the use or threatened use of the means identified.  But as the reference to "legal coercion" reveals, the Court held that involuntary servitude could be established in cases where the coercion applied was not in itself illegal.  Thus, threatening an immigrant with deportation was identified[170] as one possible form of threatened legal coercion.

     [166]487 US 931 (1988).

     [167]487 US 931 at 944, 952 (1988).

     [168]487 US 931 at 949 (1988).

     [169]487 US 931 at 949 (1988).

     [170]487 US 931 at 948 (1988).

155. The discussion in the United States cases reveals three points of immediate relevance to the application of the provisions of the Code in issue in this case. First, they show that some assistance can be obtained in the practical application of the abstract concepts of ownership and possession by considering the antithesis of slavery and asking whether, and in what respects, the person alleged to be a slave was free. But the second point revealed by the United States cases is that to ask whether a person was "free", or to ask the more particular questions of when and how a person was deprived of will or freedom of choice, is in each case a question of fact and degree. And because that is the nature of the question, the answer may often be expressed using some word like "real" or "substantial" to describe the quality of the freedom or the denial of freedom that is identified. The third point that emerges from the United States cases is that to ask whether a person has been deprived of free choice presents two further questions. First there is the question: choice about what? Then there is the question: how is the deprivation effected? The United States cases that have been discussed explore choice about provision of labour, and deprivation by means other than close physical confinement. The detail of that discussion may or may not be immediately relevant to the facts of a case brought under the provisions of the Code that are in issue in this case.

156. Asking what freedom a person had may shed light on whether that person was a slave.  In particular, to ask whether a complainant was deprived of choice may assist in revealing whether what the accused did was exercise over that person a power attaching to the right of ownership.  To ask how the complainant was deprived of choice may help to reveal whether the complainant retained freedom of choice in some relevant respect.  And if the complainant retained freedom to choose whether the accused used the complainant, that freedom will show that the use made by the accused of the complainant was not as a slave.  But it is essential to bear three points at the forefront of consideration.

157. First, asking what freedom a person had is to ask a question whose focus is the reflex of the inquiries required by ss 270.1 and 270.3 of the Code. It is a question that looks at the person who it is alleged was a slave whereas the definition of slavery in s 270.1 looks to the exercise of power over that person. The question looks at freedom, but the Code requires a decision about ownership.

158. Secondly, what is proscribed by the Code is conduct of the accused. An absence of choice on the part of the complainant may be seen to result from the combined effect of multiple factors. Some of these, such as the complainant's immigration status or the conduct of third parties, may be present independently of the conduct of the accused. Such factors are part of the context in which the conduct of the accused falls to be assessed. However, it is that conduct which must amount to the exercise by the accused of a power attaching to the right of ownership for the offence to be made out.

159. Thirdly, because the Code requires consideration of whether the accused exercised any of the powers attaching to the right of ownership, it will be important to consider the particular power that it is alleged was exercised and the circumstances that bear upon whether the exercise of that power was the exercise of a power attaching to the right of ownership.  To ask only the general question – was a complainant "free" – would not address the relevant statutory questions.

160. There were two aspects in the present case that were of critical importance in deciding whether the respondent possessed each complainant as a slave and used each as a slave.  There was the evidence that each complainant came to Australia following a transaction described as purchase and sale.  There was the evidence of how each complainant was treated in Australia, in particular evidence about the living and the working conditions of each.  And a critical feature of that evidence was that each woman was treated as having incurred a debt that had to be repaid by working in the brothel.  Although there was evidence that one of the complainants was able to secure a reduction in the amount of her initial debt, there was no satisfactory explanation in the evidence of how the so‑called debt of any of the complainants was calculated, or of what had been or was to be provided in return for the incurring of the obligation.  To be put against this evidence about the purchase and sale of the women and their living and working conditions was the concession made by the prosecution at the outset of these proceedings that each complainant came to Australia voluntarily.

161. The evidence at trial showed that the respondent had bought a "share" in four of the five women.  The fifth woman had also been bought by a syndicate but the respondent was not a member of that syndicate.

162. In argument at trial, and on appeal to the Court of Appeal, there was much attention given to what was meant by "buying" the women or a share in some of them.  A deal of that debate appears to have proceeded by reference to a supposed distinction between the respondent buying a contract under which a person agreed to provide services, and buying the person[171].  The distinction asserted depends upon directing attention to the legal rights and duties of the parties affected by the transaction.  But it is a distinction that is necessarily flawed.  One of the asserted alternatives (buying a person) is legally impossible.  It is a transaction that could not give rise to legal rights and duties.  To the extent, therefore, that the comparison seeks to direct attention to legal rights and duties, it is of no assistance.

     [171]See, for example, (2007) 16 VR 454 at 488‑489 [149]‑[158].

163. Yet because reference to buying or selling the complainants is to speak of what, in Australian law, is a legal impossibility, the significance that is to be attached to the transaction depends upon what the respondent did.  And in that respect, each of the transactions identified as a syndicate "buying" one of the women had to take its significance in a context provided by all of the evidence.  The way in which all five women were treated in Australia by setting them to work as they did, on the terms that they did, coupled with the restraints on their movement and freedom of other action, permitted a jury to conclude that what the respondent did, when she took up a "share" in four of the women, was to buy them as if they were articles of trade or commerce and thereafter possess and use them.

164. In the case of the fifth woman, where the respondent was not a member of the syndicate, the respondent's acceptance of that woman as a worker in her brothel on terms that payments were made to the syndicate members for her services was evidence which, when coupled with the evidence of her working conditions and restraints on movement and freedom, was again capable of demonstrating to a jury's satisfaction that the respondent possessed her as if she were an article of trade or commerce that others had bought and sold, and that the respondent thereafter possessed and used her.  That is, what was done with respect to the fifth of the complainants could be understood as her "owners" giving the respondent the right to possess her and use her.  Those who exercised over the fifth complainant the powers attaching to the right of ownership carved out of that "ownership", and disposed of to the respondent, subsidiary possessory "rights" over the woman.

165. What permitted the conclusion, in respect of each complainant, that she had been bought and sold as if an article of trade or commerce and thereafter possessed and used by the respondent, was the combination of the evidence about the treatment of each in Australia with the evidence of sale and purchase in Thailand.  The respondent's use of each woman in the respondent's business, coupled with the restraints on the freedom of action of the complainants, permitted the conclusion that the reference to their sale and purchase was an accurate reflection of the relationship that the respondent was to have with each complainant.  That relationship was to be one in which the respondent was to have the possession and use of each as if the respondent owned her.

166. Accepting, as the prosecution did at the outset of the trial, that each of the women came to Australia voluntarily did not preclude the conclusion that each was possessed and used by the respondent as if owned by her.  Taking the concession at its highest (that each woman had consciously, freely and deliberately submitted herself to the conditions that she encountered in Australia), the evidence permitted the jury to conclude that none of the women thereafter retained any freedom to choose what was done with them in Australia.  The practical impediments and economic consequences for each woman, if she refused to complete her performance of the arrangement, were such as permitted the jury to conclude that, if there were choices to be made about those matters, they were to be made by others.  In this case the evidence permitted the conclusion that the respondent used and possessed each complainant as a slave because it permitted the conclusion, in each case, that the respondent used and possessed the complainant as an item of property at the disposal of those who had bought the complainant regardless of any wish she might have.

167. There is one further point to make about the evidence of purchase and sale.  There was no evidence at trial about the circumstances in which the transactions were made.  In particular, there was no evidence of how it came about that the "vendor" asserted the right to make the sales that were made.  Exploration of those matters would very likely have cut down, even eliminated altogether, the notion that the women came to Australia voluntarily.  Not least is that so because it is possible, even probable, that examination of those matters would reveal not just great disparities of knowledge and power as between the "vendor" and each of the women concerned, but other circumstances touching the reality of the assent which it was accepted each had expressed.  But assuming that each of the women was to be taken to have voluntarily agreed to be the subject of sale and purchase, her assent does not deny that the result of the transaction to which each agreed was her subjection to the dominion of her purchasers.

168. It was open to the jury at the respondent's trial to find that each complainant was a person over whom was exercised, by the respondent, one or more powers attaching to the right of ownership.  The respondent's appeal to the Court of Appeal of Victoria against her convictions should have been dismissed.

169. HEYDON J.   I agree with both Gleeson CJ and Hayne J.

170. CRENNAN J.   I agree with the orders proposed by the Chief Justice, for the reasons given by his Honour.  I agree also with the reasons given by Hayne J for concurring in those orders.

171. KIEFEL J.   I agree with Gleeson CJ and with Hayne J.