R v Tang

Facts

The accused, Wei Tang, was a brothel operator in Melbourne convicted of five counts of possessing a slave and five counts of using a slave under s 270.3(1) of the Criminal Code (Cth). Five Thai women had been brought to Australia and were required to work as prostitutes to pay off debts for their travel and visa arrangements, during which time their passports were held and their freedom of movement severely restricted. The trial judge directed the jury that the prosecution did not need to prove Tang knew the women were slaves, only that she intentionally exercised powers of ownership over them.

Issues

1. Whether the trial judge's directions on the fault element for the slavery offences under s 270.3(1) of the Criminal Code (Cth) were correct. 2. What constitutes 'slavery' and the 'exercise of powers attaching to the right of ownership' for the purposes of the Criminal Code (Cth). 3. Whether the physical element of 'possession' of a slave requires proof that the accused knew the victim was a slave.

Holding

The High Court (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) dismissed the appeal, holding that the trial judge's directions were substantially correct and that the convictions were sound. The majority held that the fault element for the slavery offences required intention with respect to the conduct constituting the exercise of powers of ownership, but did not require the accused to know that what she was doing constituted slavery in law.

Ratio decidendi

For the offence of possessing or using a slave under s 270.3(1) of the Criminal Code (Cth), the prosecution must prove that the accused intentionally exercised over another person one or more of the powers attaching to the right of ownership described in the definition of slavery; it is not necessary to prove that the accused knew the victim was a slave or that the accused knew the legal character of her conduct, provided she intentionally engaged in the conduct that constituted such exercise of ownership.

Obiter dicta

Gleeson CJ observed that the concept of 'slavery' in the Criminal Code is informed by, but not identical to, its meaning in international law instruments such as the 1926 Slavery Convention, and that debt bondage arrangements of the kind found in this case could, depending on their character, satisfy the definition. The Court also noted the distinction between slavery and related practices such as sexual servitude, indicating that the slavery offence is reserved for the most serious exercises of ownership over a person.

Significance

R v Tang is the leading Australian authority on the construction of the Commonwealth slavery offences in the Criminal Code (Cth), establishing the fault element required and confirming that debt bondage arrangements can constitute the exercise of powers of ownership amounting to slavery. It has had enduring significance for the prosecution of human trafficking and modern slavery offences in Australia.

Key authorities

• He Kaw Teh v The Queen He Kaw Teh v The Queen (1985) 157 CLR 523applied
• R v Iannella R v Iannella (1971) 124 CLR 85considered
• Queen v Cogley Queen v Cogley [2005] VSCA 304considered
• R v Tang R v Tang [2006] VSCA 218considered
• Prosecutor v Kunarac Prosecutor v Kunarac (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Case No IT-96-23 and IT-96-23/1-A, 12 June 2002)considered