The case of R v McIvor and Tanuchit is one of a small number of reported cases of trafficking in persons in Australia and marks the first convictions for slavery offences in New South Wales. In June 2006, five Thai women were discovered in a secret room in the basement of a licensed brothel owned by Mr Trevor McIvor and Ms Kanakporn Tanuchit [R v McIvor and Tanuchit [2010] NSWDC 310, [2], [12]]. The pair was convicted of five counts of possessing a slave and five counts of exercising over a slave powers attaching to the right of ownership, contrary to section 270.3 (1)(a) Criminal Code (Cth) in December 2010. When questioned about the crime Mr Bruce Levet, Crown Prosecutor for the case, described the actions of the couple as ‘truly heinous’ [Kim Arlington, “Sex slave family ‘psycho’ victim says,” The Daily Telegraph (Sydney), July 14 2008; R v McIvor and Tanuchit 2010 NSWDC 310].
Mr Trevor McIvor and his wife Ms Kanakporn Tanuchit owned and operated a brothel formerly known as ‘Marilyn’s Adult Entertainment’ located in Fairfield in Sydney’s West [R v McIvor and Tanuchit [2010] NSWDC 310, [2]. The Brothel is now known as ‘Marilyn’s Spa and Sauna’]. Their criminal activity involved the enslavement and imprisonment of five Thai women. Throughout the proceedings the five female victims were given the pseudonyms Sophie, Jasmin, Susie, Yoko, and Mickey [These were the names the victims used during the period of enslavement at Marilyn’s Adult Entertainment]. The pair’s criminal activity began on July 11, 2004 when they collected the first victim, Sophie, from Sydney airport, and ended on June 2, 2006 when their brothel was searched by the Australian Federal Police (AFP) and officials from the Department of Immigration and Citizenship (DIAC). This search took place after one of the victims, Yoko, contacted the Thai consulate in Sydney [R v McIvor and Tanuchit [2010] NSWDC 310, [12]]. During sentencing Judge Williams remarked: ‘Had Yoko not acted as she did I have no doubt that the offending would have continued’[R v McIvor and Tanuchit [2010] NSWDC 310, [12]].
1) The Offenders
Judge Williams, who presided over the second trial of the defendants, concluded that Mr McIvor and Ms Tanuchit were equal joint offenders. They would ‘purchase’ one woman at a time who would be provided by contacts in Thailand who arranged visas, travel documentation, and tickets. The methods used to ensure the women gained entry into Australia, such as the information provided to Australian authorities to support visa applications, was evidently fraudulent. However, the only direct evidence of any involvement in the organisation and recruitment of the operation was with regards to the victim Ms Susie who came to Australia accompanied by Ms Tanuchit’s sister and other family members. Mr McIvor later provided support for her visa application.
(i) Trevor McIvor
Mr McIvor – who insisted his victims refer to him as ‘Papa’ – was born in Australia in 1948 and until 2004 had a relatively minor known criminal history [R v McIvor and Tanuchit [2010] NSWDC 310, [38]; Heath Gilmore, “Illegally brought here so all 'could make money’”, The Sydney Morning Herald (Sydney), July 6, 2008.
[1] R v McIvor and Tanuchit [2010] NSWDC 310, [38]]. He had worked in clubs and hotels for a period of time before becoming involved in the management and operation of legal brothels [R v McIvor and Tanuchit [2010] NSWDC 310, [38]]. Together with Ms Tanuchit, he had two children and Mr McIvor, eighteen years older than his wife, also had a child from a previous relationship. A stocky man, the limited media coverage of the case painted him as a ruthless, ‘money-hungry’ criminal who showed no remorse for his actions in exploiting the women for sexual services or empathy for his victims [Heath Gilmore, “Illegally brought here so all 'could make money’”, The Sydney Morning Herald (Sydney), July 6, 2008; Steph Gardiner, ‘Sex slavery in Australia uncovered by recent court cases’, Australian Associated Press, 9 Dec 2008]. His only remorse was with regards to the small role he played in forging documents for one of the victims, ‘Susie’ [R v McIvor and Tanuchit [2010] NSWDC 310, [8]]. A witness and former employee of ‘Marilyn’s’ recounted that Mr McIvor was quite particular about the appearance of the Thai women he brought to Australia to work as sex slaves in his brothel: ‘I've paid fucking $45,000; why can't they look decent,’ he said [Heath Gilmore, “Illegally brought here so all 'could make money’”, The Sydney Morning Herald (Sydney), July 6, 2008].
(ii) Kanakporn Tanuchit
Ms Tanuchit was born in Thailand in 1966 and immigrated to Australia in 1995 where she married Mr McIvor and subsequently became an Australian citizen. The couple share two children who were born in 1998 and 2001 [R v McIvor and Tanuchit [2010] NSWDC 310, [41]. After her arrest, during psychological treatment whilst in prison, Ms Tanuchit confirmed that her background and migration to Australia was similar to the victims she later mistreated. She also left her family behind when she immigrated [R v McIvor and Tanuchit [2010] NSWDC 310, [42]]. The victims’ accounts suggest that Ms Tanuchit was the foremost abuser of the two joint offenders [R v McIvor and Tanuchit [2010] NSWDC 310, [14], [16], [19]-[20], [22], [26], [28]]. She was the one who confiscated their belongings, made threats against their lives and families and physically and verbally assaulted the women. Additionally, she showed little victim empathy and, when interviewed by a psychologist in prison, was unwilling to take responsibility for her actions and placed blame for her incarceration on the victims [R v McIvor and Tanuchit [2010] NSWDC 310, [43]].
2 Victims:
During sentencing, Judge Williams noted that although distinctions can be drawn between the facts relating to the victims, there is also marked similarity between each. In principle, there is nothing to distinguish one from the other. Nonetheless, the facts relating to each victim will be outlined here separately to demonstrate the varying degrees of severity of their treatment.
The actual price ‘paid’ by Mr McIvor and Ms Tanuchit for each victim cannot be determined because the couple was not cooperative in providing details to the authorities and their victims were not aware of the amount [R v McIvor and Tanuchit [2010] NSWDC 310, [8]]. However, money transferred to Thailand after the women arrived suggest it was somewhere between AU$ 12,000 and AU$ 15,500 for each woman [R v McIvor and Tanuchit [2010] NSWDC 310, [8]]. On arrival, each of the women were informed by the offenders they had accrued a debt of between AU$ 35,000 and AU$ 45,000 and until that was repaid they were required to work in the brothel [R v McIvor and Tanuchit [2010] NSWDC 310, [8]]. One of the victims was told about the debt while still in Thailand, the rest were oblivious.
All of the women were prevented from leaving Australia and escaping the control of the offenders before their debt was repaid by confiscating their passports and keeping them locked either in a room or ‘cell’ under the brothel or at the couple’s private residence [R v McIvor and Tanuchit [2010] NSWDC 310, [8]]. If they had brought their mobile phone from Thailand, it was confiscated and a pin code was placed on the landline [Australia, Anti–People Trafficking Interdepartmental Committee, Trafficking in Persons: The Australian Government’s Response January 2004–April 2009, Canberra, ACT: Commonwealth of Australia, 2009, 70]. They were only allowed out of either premises while under the care of one of the defendants or a trusted employee [R v McIvor and Tanuchit [2010] NSWDC 310, [8]].
Most of the women commenced work in the brothel immediately after reaching the couple’s residence and storing their belongings [R v McIvor and Tanuchit [2010] NSWDC 310, [8]]. They usually had to work for sixteen hours a day. The victims were told they had to work six days with the option to work on the seventh day and receive payment, although minimal, if they chose to do so [R v McIvor and Tanuchit [2010] NSWDC 310, [8]]. This, however, was not the case. Moreover, all of the women were made to insert a sponge into their vaginas so they were able to work during their menstruation. Several victims reported that they had difficulty removing the sponge and had to seek assistance to do so [R v McIvor and Tanuchit [2010] NSWDC 310, [14], [19]].
All five women made victim impact statements to the courts so they did not have to give evidence at trial. In order to preserve anonymity, they were referred to throughout the course of the trials, appeals and sentencing by the names they used during their respective periods of sexual servitude with the offenders. Aged between 27 and 44, they were Sophie, Jasmin, Susie, Yoko, and Mickey. Each victim is briefly introduced in the following sections in chronological order of their arrival into Australia.
(i) Sophie
The first victim, referred to as Sophie, was told when she was ‘recruited’ in Thailand for sex work that she would have a debt of AU$ 17,000 to repay [The identity of the all of the person/s who recreated Sophie, Jasmin, Yoko, and Mickey is unknown as Mr McIvor and Ms Tanuchit refused to disclose the names of their contacts in Thailand; (Susie was recruited by Ms Pa Phen, Ms Tanuchit’s sister)]. She arrived in Sydney on July 11, 2004 in the company of a female minder known as Chut [R v McIvor and Tanuchit [2010] NSWDC 310, [14]]. She was initially taken to a Sydney hotel by her minder from where she was collected by Mr McIvor and Ms Tanuchit and taken to their home. Prior to starting work at the Fairfield brothel she had not engaged in any sex work. Record books kept by the defendants show that between the date of her arrival and her release on December 27, 2004 (a period of five and a half months) Sophie saw 894 clients [R v McIvor and Tanuchit [2010] NSWDC 310, [16]].
In December 2004, Sophie suffered a serious womb infection. She was taken to see a medical professional who insisted that she rest for one week. However, Sophie was only allowed one day off and she was required to work despite complaining that she was suffering from severe pain. On a separate occasion she experienced a vaginal tear which caused further pain. She was not taken to see a doctor but instead Ms Tanuchit gave her a cream to apply to her wound and she was not permitted any time off [R v McIvor and Tanuchit [2010] NSWDC 310, [16]].
Sophie attested that she felt it was too dangerous for her to attempt to escape because verbal threats were made against her. Ms Tanuchit told the victim that one girl had escaped and that when that girl was found she would hire someone to assault her. She also warned the victim that if she ran away the police or immigration would catch her [R v McIvor and Tanuchit [2010] NSWDC 310, [17]].
(ii) Jasmin
The second and oldest of the victims, Jasmin, had never worked in the sex industry before arriving in Australia [R v McIvor and Tanuchit [2010] NSWDC 310, [18]]. She was told during the recruitment process in Thailand that the work in Australia would involve sexual activities. Jasmin was informed that she would accrue a debt but that she would be able to pay it off within three months. On May 19, 2005, she arrived in Australia under the care of a minder known to her as ‘John’ who initially accommodated her in a hotel where she was later met by Ms Tanuchit [R v McIvor and Tanuchit [2010] NSWDC 310, [18]]. After a short discussion, her passport was confiscated and Mr McIvor collected his wife and Jasmin from the hotel and they returned to the offender’s home. She lived at their home until late November 2005 until she was told she would reside at the brothel [ R v McIvor and Tanuchit [2010] NSWDC 310, [19]].
Jasmin remained at the brothel until April 13, 2006, a period of approximately 10 months. During that time she saw 1,165 clients to pay off her original debt but also an additional amount for medical expenses, food, and advances of money sent to her family in Thailand [R v McIvor and Tanuchit [2010] NSWDC 310, [21]]. The reason she was able to service such a large number of clients was because she was forced to perform sex work every day and was not allowed to refuse customers even if she was exhausted or in pain [R v McIvor and Tanuchit [2010] NSWDC 310, [19]].
It has been reported that Jasmin was often ridiculed by Ms Tanuchit because of her age and appearance. She was told she was unable to attract men because she was too dark, ‘fat’, and had saggy breasts [R v McIvor and Tanuchit [2010] NSWDC 310, [20]]. At one point, she was required to take her clothes off and be examined by Ms Tanuchit. During her work, she was exposed to sexually transmitted diseases (STDs) as she was forced to perform oral sex without a condom and was given incorrect inductions on how to check for STDs. The offenders told her she had to perform such acts because she had no other ‘selling points’ [R v McIvor and Tanuchit [2010] NSWDC 310, [19]].
The couple also made threats to Jasmin’s life, family and ‘reputation’. As a form of intimidation, Ms Tanuchit told her that if she spoke about her situation to customers who might happen to be from immigration that she would be sent back to Thailand. Jasmin was told that not only would her family be harmed but they would also be told that she was working in the sex industry [R v McIvor and Tanuchit [2010] NSWDC 310, [23]].
(iii) Susie
The third victim, Susie, was recruited by Ms Tanuchit’s sister, Ms Pa Phen in Thailand and she was made aware that her work in Australia would involve sexual conduct although Susie had never engaged in sex work before. She arrived in Australia on March 15, 2006 with Ms Phen and her family under the ruse of attending an engagement function for Mr McIvor and Ms Tanuchit. She stayed at the brothel under her contracted debt of AU$45,000 until authorities searched the brothel on June 2, 2006 [R v McIvor and Tanuchit [2010] NSWDC 310, [23]].
Susie gave evidence at trial and attested that she was forced to service violent clients and that the sex work was often painful. Details of the severity of the violent treatment she endured were not disclosed. Susie was not allowed to refuse any customers or take any days off. She worked every single day and was required even when sick. It has been reported that on one particular occasion she was so ill that she required assistance to apply her make-up. She gave evidence that at times the only food she was allowed to have was instant noodles. She also noted that she was often verbally abused by Ms Tanuchit [R v McIvor and Tanuchit [2010] NSWDC 310, [26]]. Threats were made to ensure that she would not try to escape. Susie was told of Mr McIvor’s alleged influence in Australia and of Ms Phen’s connections to Thai police. She was told that if she attempted to notify Thai authorities her family would be harmed [R v McIvor and Tanuchit [2010] NSWDC 310, [26]].
(iv) Yoko
Victim number four, Yoko, was recruited in Thailand by an undisclosed contact of the defendants. She was told she would be performing massage work and that sex work was optional. Yoko made it clear when giving evidence that she had not engaged in any sex work previously, nor did she have any intention of carrying out such work when arriving in Australia [R v McIvor and Tanuchit [2010] NSWDC 310, [27]]. Ms Tanuchit was made aware that Yoko was hired on the basis that she wanted to do only massage work. However, Yoko was told that massage work paid considerably less and that it would therefore take her much longer to repay her debt. Thus, she felt as though she was given no choice but to engage in sex work [R v McIvor and Tanuchit [2010] NSWDC 310, [28]].
Accompanied by a minder, Yoko arrived in Australia on May 16, 2006 and was met at the airport by the offenders. Her passport, mobile phone, and AU$ 1,500 in cash which was given to her by the Thai recruiter were confiscated upon arrival. During her one month stay at the brothel, the offender’s debt books note that she serviced 41 clients and repaid just over AU$ 2,125 of her AU$ 45,000 [R v McIvor and Tanuchit [2010] NSWDC 310, [28]].
Yoko was accommodated at the couple’s home and was transported to and from the brothel each day. She was reprimanded if she refused to perform oral sex without a condom. The available evidence, combined with the fact that she managed to alert the Thai embassy, suggests that Yoko was by far the most robust in resisting the abusive treatment of the offenders.
(v) Mickey
Mickey, the fifth victim – and the last to arrive in Australia – is the only victim who had previously worked in the sex industry. Prior to her arrival in Sydney she had engaged in sex work in Bahrain, but later returned to Thailand. She was recruited in Thailand to come to the defendant’s brothel to perform both sex and massage work. On May 19, 2006, Mickey arrived unaccompanied at Sydney airport. She was taken directly to the brothel to commence sex work. Her debt was set at AU$ 45,000 [R v McIvor and Tanuchit [2010] NSWDC 310, [29]].
Mickey was forced to work every day and was not permitted to refuse clients even after being physically assaulted and injured by one client. She was prohibited from refusing to perform any type of sexual act besides sex without a condom. During the relatively short period she worked at the brothel before authorities found her, she serviced 72 clients and repaid AU$ 3,770 of her debt [R v McIvor and Tanuchit [2010] NSWDC 310, [31]].
Mickey was not permitted to leave the premises and gave evidence that all she had to eat was instant noodles. She was threatened and did not attempt to escape because she believed she would not be successful and was fearful that if she was captured she would be harmed [R v McIvor and Tanuchit [2010] NSWDC 310, [31]].
Australia
Thailand1st Instance: R v McIvor and Tanuchit [2008] NSWDC 185 (sentencing decision)
Court: New South Wales District Court
Trial date: Twelve weeks ending on July 28, 2010
Verdict date: July 30, 2010
Sentencing decision date: December 17, 2010
Trevor McIvor and Kanakporn Tanuchit were both charged with five counts of possessing a slave and five counts of exercising over a slave powers attaching to the right of ownership, contrary to section 270.3 (1)(a) Criminal Code (Cth) in December 2010. The couple were first tried together before the District Court of New South Wales in 2007 by District Court Judge Taylor. The jury found them guilty on all counts.
It was also suggested by the defence that all of the women had actually worked in the sex industry before and that they were lying to court [R v McIvor and Tanuchit [2010] NSWDC 310, [34]]. They did not deny that the women entered the country illegally but insisted that they were brought here voluntarily so they and the offenders could make money [Heath Gilmore, “Illegally brought here so all 'could make money’”, The Sydney Morning Herald (Sydney), July 6, 2008]. Mr McIvor gave evidence at the trial supporting this argument [R v McIvor and Tanuchit [2010] NSWDC 310, [5]]. However, Ms Tanuchit declined to comment.
Directly relevant to the first trial was the decision of the Court of Appeal of the Supreme Court of Victoria in R v Wei Tang [2007] VSCA 134. This decision was, however, later overturned by the High Court in relevant respects in R v Tang (2008) 237 CLR 1, at which times the first trial of Mr McIvor and Ms Tanuchit had already been concluded. In submissions to Judge Taylor for McIvor and Tanuchit, the Crown already indicated that an appeal had been lodged against the decision in R v Wei Tang [2007] VSCA 134, but that his Honour was bound to follow that authority for the time being. The Crown indicated that it intended to challenge the directions with respect to the fault element of s 270.3 Criminal Code (Cth) given in the principal judgment in the Victorian Court of Appeal by Justice Eames, but that his Honour should proceed on the basis that it represented the law. Accordingly, Judge Taylor followed the interpretation of the fault element of the intention with regards to section 270.3 (1)(a) Criminal Code (Cth), almost to the letter.
On November 15, 2007 Mr McIvor was sentenced to twelve years imprisonment with a non-parole period of seven and a half years. Ms Tanuchit was sentenced to 11 years imprisonment with a non-parole period of seven years.
2nd Instance: McIvor v R, Tanuchit v R [2009] NSWCCA 264 (appeal case – discussed below).
Appeal Court: New South Wales Court of Criminal Appeal
Hearing: September 18, 2009
Judgment: October 28, 2009
See below for reasoning. A retrial was ultimately ordered.
3rd Instance: R v McIvor and Tanuchit [2010] NSWDC 310 (retrial sentencing decision)
Court: New South Wales District Court
Trial: Twelve weeks ending on July 28, 2010
Verdict: July 30, 2010
Sentencing decision: December 17, 2010
On May 3, 2010, a retrial began in the District Court of New South Wales under Judge Williams. The defendants were again tried together but were represented separately. Neither Mr McIvor nor Ms Tanuchit gave evidence at this trial. Nevertheless, they maintained their innocence. The trial ran for twelve weeks. The jury went out on the morning of July 28, 2010 and returned their verdicts at 12:30pm on July 30, 2010. The defendants were again found guilty of five counts of intentionally possessing a slave and five counts of exercising over a slave powers attaching to the right of ownership [Criminal Code (Cth) s 270.3(a)]. Mr McIvor and Ms Tanuchit’s final sentences were handed down by Judge Williams on November 17, 2010.
In sentencing the two defendants, his Honour compared the facts to those in Tang noting the striking similarities between the two cases [R v McIvor and Tanuchit [2010] NSWDC 310, 12]. However, Ms Wei Tang was sentenced to ten years imprisonment. The major factual differences between the two cases were that all of the victims in Tang had previously worked in the sex industry, they all agreed to come to Australia to do sex work, they were not locked up until their contract debt was repaid and they were all provided with adequate food, medical attention and a residence [R v Tang (2008) 237 CLR 1]. Judge Williams noted that the actions of the offenders in this case amounted to a substantial aggravation [R v McIvor and Tanuchit [2010] NSWDC 310, 12].
The principle of double punishment was considered by Judge Williams when sentencing the co-accused. His Honour noted that the issue of double punishment arose on appeal in Tang, for what was essentially, the same conduct. In s 270.3(1)(a) Criminal Code (Cth) the offences of possession and exercising of a slave powers attaching to the right of ownership are paired together under one the sub-section. They appear to be part of the same offence. Yet they are clearly not as Mr McIvor and Ms Tanuchit, as well as the offender in Tang, were charged separately with five counts of ‘possessing’ and five counts of ‘exercising powers over a person powers attaching to the right of ownership’ (‘use’).
Referring to the terms used in the legislation, the High Court noted that concept of ‘use’ is encompassed in ‘possession’ and ‘possession’ is a prerequisite for use [R v McIvor and Tanuchit [2010] NSWDC 310, 12; Pearce v R (1998) 194 CLR 610, 623]. The High Court discussed double punishment in these circumstances in Pearce v R, stating that:
Often … boundaries of offences will overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts. A Judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of [a]ccumulation or concurrence, as well of course, questions of totality [Pearce v R (1998) 194 CLR 610 at 623].
Building on this, the Victorian Supreme Court of Appeal in Tang stated:
Approaching the question a matter of common-sense, not as a matter of semantics, we have no doubt that the offences of possessing a slave and using a slave overlap when committed in relation to the same person…simply, there can be no use unless there is possession, and use is itself is an illustration of possession [R v Wei Tang [2009] VSCA 182, [29]; R v McIvor and Tanuchit [2010] NSWDC 310, 11].
Judge Williams decided to follow the course of the Victorian Supreme Court of Appeal. His Honour recognised that although it was difficult to envision a situation where a person would be charged with possession alone, the possibility does exist [R v McIvor and Tanuchit [2010] NSWDC 310, 13]. He adopted the court’s position noting that possession was less serious than the use in the circumstances of offending. In this case, although the use was an expression of the co-offender’s possession, the ‘use’ element was that which most harshly exemplified the victim’s enslavement. His Honour found that the sentences for the ‘possession’ counts punished other manifestations of the offender’s control over the victims.
Accordingly, he noted that the sentence must distinguish between the relative seriousness of the individual offences; taking into account of the element of double punishment inherent in the possession and use offence; or the substantial variances in duration of the individual victim’s period and conditions of slavery [R v McIvor and Tanuchit [2010] NSWDC 310, 16]. His Honour then sentenced both offenders. They were sentenced more harshly for the ‘use’ offences than they were for the ‘possession’ offences. For example, with regards to the victim Mickey, each offender was sentenced to four years imprisonment for ‘use’, and only three years imprisonment for ‘intentionally possessing’[R v McIvor and Tanuchit [2010] NSWDC 310, 17]. Overall, each co-offender was sentenced to twelve years imprisonment. Mr McIvor received a non-parole period of seven and a half years and Ms Tanuchit’s seven years. The explanation given for the slightly shorter non-parole period of Ms Tanuchit was simply with regard to the original sentence of Judge Taylor.
Each co-offender was given a sentence of three years for every individual victim with regards to the possession counts. However, the sentence varied for the use counts from four years for Mickey all the way to ten years for Jasmin. The variations in sentence length for the ‘use’ offence are for the most part straightforward and can be attributed to the length of time the victims were enslaved and the degree of their exploitation [For the count regarding Susie, who was enslaved for two and half months, the offenders received 6 years whereas for the count against Jasmin, who was enslaved for ten months, the offenders received ten years].The sentences with regards to Mickey and Yoko, however, are less straightforward. Both victims were enslaved for less than a month yet, with regards to the ‘use’ counts against Yoko the offender’s received a sentence of four years and with regards to Mickey they only received three. The sentencing remarks suggest that this difference is because (a) Mickey had previously worked in the sex industry, and (b) Yoko did not agree to work in the sex industry.
First, it must be noted that in his sentencing remarks Judge Williams alluded to the fact that Mickey had previously worked within the sex industry. It appears his Honour, to some extent, expected Mickey to be able to service a greater number of clients than Yoko simply because she had previously been a sex worker. This is generalisation is clearly supported by the co-accused and their clients as evinced by the sheer number of clients which Mickey had to service. Mickey was enslaved for three days less than Yoko and saw 31 more clients. Moreover, his Honour failed to consider the details of Mickey’s previous sex work for example if she had been trafficked into that work or whether that work had been exploitative in nature [R v McIvor and Tanuchit [2010] NSWDC 310, 9].
Second, the issue of consent has arisen in the sentencing of several slavery offenders including in Tang. It was settled by the High Court that the issue of consent was not inconsistent with slavery, and that consent was not a defence to slavery. Nonetheless, it was further held in Tang, that consent was relevant to assessing Ms Tang’s culpability. The majority found that if the victim had been kidnapped or forced to come to Australia Ms Tang’s culpability would have been much higher [R v Tang (2008) 237 CLR 1, [35]]. It appears that this may be consistent with Judge Williams’ approach in this case to differentiating between the sentences handed down for the crimes committed against the victims especially Mickey who had previously engaged in sex work and consented to working in the sex industry in Australia; and Yoko who was coerced into coming to work in the brothel under false pretences. Judge Williams concluded with regards to Yoko, that her lack of consent ‘must have been an additional source of distress to her’[R v McIvor and Tanuchit [2010] NSWDC 310, 8]. However, there is no solid evidence which suggests that simply because Yoko did not consent that her ordeal was more distressing than the other victims’ experiences. Although the other women consented to engage in sex work, they did not agree to the lack of wage, exposure to illness, abuse or the animalistic conditions of slavery to which they were subjected. Therefore, it seems inappropriate for Judge Williams to differentiate between the sentences with regard to Ms Mickey and Ms Yoko on the basis of his perceptions of their emotions; their distress.
This decision was not appealed.
After the High Court’s decision in R v Tang (2008) 237 CLR 1 was handed down on August 28, 2008, Mr McIvor and Ms Tanuchit appealed to the New South Wales Court of Criminal Appeal on three grounds which all turned on the trial judge’s directions to the jury:
(1) the direction on the fault element;
(2) the direction on the indicia of slavery; and
(3) the confusing nature of directions.
The Crown opposed leave on all grounds, but the appellants were successful on the first ground of appeal. The appeal was heard by Chief Justice Spiegelman, and Justices McClellan and Grove on September 18, 2009. Chief Justice Spiegelman delivered a leading judgment on October 28, 2009, with which his fellow judges agreed. They upheld the appeal, quashing the original conviction and ordering a new trial. In their judgment their Honours discussed the first and second ground of appeal in great depth even though the second ground was rejected. It was noted that the third ground, involving the alleged confusing nature of a particular metaphor used in the Crown submissions and adopted in the judicial directions, was not likely to arise at the second trial and as a result was not discussed any further [R v McIvor and Tanuchit [2009] NSWCCA 264, [9]]. The following sections explore the remaining two substantive grounds of appeal individually:
1) Ground One: Direction on the Fault Element of the Offence
Counsel for the co-accused argued that the trial judge misdirected the jury by failing to adequately direct them as to the meaning of the requisite element, ‘intention’ and how it was to be applied to the facts of the case [R v McIvor and Tanuchit [2009] NSWCCA 264, [11]].
The co-accused in the McIvor and Tanuchit case were charged with a slavery offence. The Criminal Code (Cth) defines ‘slavery’ as:
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 [Criminal Code (Cth), s 270.1].
This definition is drawn from Article 1 of the International Convention to Suppress the Slave Trade and Slavery 1926, herein after 1926 Slavery Convention [League of Nations, International Convention to Suppress the Slave Trade and Slavery, opened for signature 25 September 1926, 60 LNTS 253 (entered into force 9 March 1927)] but differs in two important ways. Firstly, the 1926 Slavery Convention speaks of the ‘status’ or ‘condition’ whereas the definition in s 270.1 Criminal Code (Cth) mentions only the ‘condition’ of slavery because chattel slavery is not legally recognised in Australian law. Secondly, the definition in the Criminal Code adds the clause ‘including where such a condition results from a debt or contract made by the person.’ Section 270.2 Criminal Code (Cth) further ensures that '[s]lavery remains unlawful and its abolition is maintained' [Criminal Code (Cth), s 270.2].
The slavery offence with which the defendants were charged is set out in Division 270 of Australia’s federal Criminal Code. This Division contains offences relating to ‘slavery, sexual servitude and deceptive recruiting’, including section 270.3(1)(a):
A person who, whether within or outside Australia, intentionally […] possesses a slave or exercises over a slave any of the other powers attaching to the right of ownership…is guilty of an offence.
The physical elements of this offence are either possession of a slave or exercising over a slave powers attaching to the right of ownership. The corresponding fault element is intention.
The meaning of intention for the purposes of the slavery offence raised several issues in the McIvor and Tanuchit case. There are three separate ways in which the fault element, intention, can be established according to section 5.2 Criminal Code (Cth). First, outlined in subsection 5.2(a), a person has intention with respect to conduct if he or she means to engage in that conduct. Second, outlined in subsection (b), a person has intention with respect to a circumstance if he or she believes that the circumstance exists or will exist. Third, a person has intention with respect to a result if he or she means to bring the result about or is aware that it will occur in the ordinary course of events. It is integral to the understanding of this section to note that these concepts are, however, mutually exclusive and each relate to a different type of physical element.
It follows that as the physical element of section 270.3(1)(a) is a type of conduct (possessing a slave or excising over a slave powers attaching to the right of ownership) it must be shown that the accused had intention with regard to the conduct of possessing a slave or exercising over a slave powers attaching to the right of ownership. For the purposes of proving the fault element of this section intention with regards to the concepts of circumstance and result does not have to be shown. This is where District Judge Taylor, in McIvor and Tanuchit erred when giving directions to the jury.
According to Chief Justice Spiegelman, the jury were correctly directed that intention was the relevant fault element. However, they were told that it could be established by proving intention with regard to any of the three concepts: conduct, circumstance and result. The jury was not directed specifically to the only concept that mattered, that is, intention as to conduct. The reference to all three subsections of section 5.2 (1) Criminal Code (Cth) was taken directly from the directions of Justice Eames of the Victorian Court of Appeal in R v Wei Tang [(2007) 16 VR 454]. Judge Taylor’s application of the intention element was rejected by the High Court in R v Tang [(2008) 237 CLR 1] and was accordingly rejected by the New South Wales Criminal Court of Appeal in the McIvor and Tanuchit case [R v Tang (2008) 237 CLR 1; R v McIvor and Tanuchit [2009] NSWCCA 264]. Judge Taylor’s inclusion of the three types of intention was held to be ‘confusing’ [R v McIvor and Tanuchit [2009] NSWCCA 264, [28]].
The second part of this appeal point relates the accused’s knowledge as to the ‘character’ of their actions. At the initial trial Judge Taylor, (again, following the Victorian Court of Appeal’s decision in R v Wei Tang) imposed an additional knowledge requirement into the fault element of the slavery offence. This was supposed to ensure a high bar of differentiation between mere exploitation and actual slavery. With regards to this matter his honour, Judge Taylor directed:
For the offence of intentionally possessing a slave the accused must have known that the complainant had been reduced to a condition where she was no more than property, a mere thing, over which the accused could exercise power as though he or she owned the complainant [R v McIvor and Tanuchit [2009] NSWCCA 264, [24]].
The majority of the High Court in Tang, however, discredited this approach and held that besides the generally accepted physical (conduct) and fault (intention) elements, no particular level of knowledge (regarding the source of the powers exercised over the complainants by the accused) has to be proven by the prosecution to establish the offence of slavery [Irina Kolodizner, ‘R v Tang: Developing an Australian Anti-Slavery Jurisprudence’ (2009) 31 Sydney Law Review 487, 494].
Chief Justice Gleeson, for the majority, found that the Victorian Court of Appeal erred [R v Tang (2008) 237 CLR 1 at 23 per Gleeson CJ] in requiring the defendant to have an ‘appreciation of the character’ of her actions [R v Wei Tang (2007) 16 VR 454 at 487]. His honour stressed that the solution to the issue of distinguishing slavery from exploitation lay in looking at the capacity of the accused to deal with the victims as commodities and not in the need for reflection by an accused upon the source of the powers being exercised [Irina Kolodizner, ‘R v Tang: Developing an Australian Anti-Slavery Jurisprudence’ (2009) 31 Sydney Law Review 487, 494]. The dissent of Justice Kirby in Tang ardently supported the approach of the Court of Appeal, criticising the majority for ‘distorting the essential ingredients of serious criminal offences as provided by the Parliament’ [Irina Kolodizner, ‘R v Tang: Developing an Australian Anti-Slavery Jurisprudence’ (2009) 31 Sydney Law Review 487, 494].
Following the High Court’s decision in Tang, Justice Spigelman in McIvor and Tanuchit held that Judge Taylor’s direction to the jury on the additional knowledge requirement was incorrect. This error, in combination with the inclusion of the three types of intention meant that jury were given incorrect and confusing directions on the fault element of the offence which amounted to a significant miscarriage of justice [R v McIvor and Tanuchit [2009] NSWCCA 264, [27]].
2) Ground Two: The Indicia of Slavery
The offence of slavery is not fulfilled simply by the doing of prescribed acts. It is an offence which, in this case at least, is constituted by a course of conduct which involves a number of acts over an extended period [R v Kovacs [2009] 2 Qd R 51, 41].
At the initial trial of Mr McIvor and Ms Tanuchit, the Crown outlined the list of factual characteristics of the premises and conduct which they characterised as ‘indicia of slavery’. These indicia were that the complainants:
- lived and worked in locked premises operated by the appellants after they arrived in Australia;
- did not have keys to the premises and were not permitted by the appellants to leave the premises unaccompanied;
- did not speak English;
- did not know anyone outside the brothel;
- were housed, cooked for and fed by the appellants;
- were constantly put to work by the appellants;
- were controlled by the appellants in all aspects of their lives including where they went, where they ate, where they slept and with whom they associated;
- had a fear of immigration authorities fostered in their minds by the appellants; and
- were instructed by the appellants to hide in the event that authorities attended the brothel premises [R v McIvor and Tanuchit [2009] NSWCCA 264, [7]].
Justice Spigelman made it clear that he believed labelling these nine factors as ‘indicia’ was misleading. He stated:
with the possible exception of (vii) the indicia are not capable of constituting slavery on their own, as distinct from being one of the range of circumstances which are relevant to determining the physical element of the offence under section 270.3(1)(a) of the Code [R v McIvor and Tanuchit [2009] NSWCCA 264, [8]].
The crux of the defence’s submissions regarding the second ground of appeal was that the trial judge’s explanations failed to direct the jurors’ minds to the extent to which each of the ‘indicia’ could properly be said to demonstrate the relevant condition of slavery and the failure to acknowledge any relevance as to the circumstances in which these indicia were produced.
At the initial trial, after giving directions with respect to the elements of the offence, Judge Taylor referred to the ‘indicia of slavery’ as ‘essential ingredients of the offence’[R v McIvor and Tanuchit [2009] NSWCCA 264, [31]]. However, in a later statement Judge Taylor said ‘you do not have to be satisfied about all of the indicia with respect to one complainant ‘you only need to be satisfied about one. That is because the indicia is simply the identified example of the condition the Crown says is slavery’[R v McIvor and Tanuchit [2009] NSWCCA 264, [35]].
After retiring, the jury asked: ‘Do all of the indicia have to be satisfied for any charge to be proved?’ The Crown submitted that the answer was ‘no’ and counsel for the appellants concurred [R v McIvor and Tanuchit [2009] NSWCCA 264, [38]]. His Honour then attempted to clarify:
The answer to that is no. You have to be satisfied beyond reasonable doubt as to each of the elements of the particular charge that you are considering. [I]f you are satisfied beyond reasonable doubt as to one or more of the indicia it is open to you, and I emphasise the word open to conclude that a condition of slavery existed’[R v McIvor and Tanuchit [2009] NSWCCA 264, [39]].
The Court of Appeal held that it was likely the jury’s question was prompted by his Honour’s initial characterisation of the indicia as elements or essential ingredients and that despite clearing this up in later directions, the question was indicative of possible confusion as how they could have applied the indicia [R v McIvor and Tanuchit [2009] NSWCCA 264, [40]]. The court also commented on the nature of the indicia themselves; they varied. Some were clearly established and uncontested facts. Others were inferences drawn from a body of evidence. This, the Criminal Court of Appeal concluded, was also capable of confusing the jury [R v McIvor and Tanuchit [2009] NSWCCA 264, [41]].
Despite the Criminal Court of Appeal findings, the second ground of appeal failed as the Court of Appeal found the fact that counsel for the appellant did not seek correction of the directions and indeed supported Judge Taylor’s response significant [Anti-Slavery Project, “Understanding Slavery”, Anti-Slavery Project, University of Technology, Sydney, 2010. available from: http://www.antislavery.org.au/resources/fact-sheets.html; R v McIvor and Tanuchit [2009] NSWCCA 264, [46]–[47]].Yet, the jury were clearly directed that they had to be satisfied beyond reasonable doubt of the elements of the offence and the need to establish a condition of slavery existed. As such, the Court of Appeal was satisfied that his Honour’s later attempts to clarify were able to clear any confusion so that the jury did not act under a belief that one of the indicia would be sufficient [R v McIvor and Tanuchit [2009] NSWCCA 264, [46]].
New South Wales Criminal Court of Appeal
First trial (sentencing judgment): R v McIvor and Tanuchit [2008] NSWDC 185 (NB: judgment not available).
First appeal: McIvor v R, Tanuchit v R [2009] NSWCCA 264.
First retrial (sentencing judgment): R v McIvor and Tanuchit [2010] NSWDC 310.
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This case has also been used for the Australian "Be Careful What You Pay For" campaign in 2011, see poster.