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15 June 2009

National Judicial College of Australia Twilight Seminar for the Judiciary “People Trafficking” Judge Michael McInerney. 15 June 2009. Slavery Legislation

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15 June 2009

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  1. National Judicial College of AustraliaTwilight Seminar for the Judiciary “People Trafficking” Judge Michael McInerney 15 June 2009

  2. Slavery Legislation This legislation was passed by the Commonwealth Parliament in March 1999. I refer to the second reading speech of Senator Ian McDonald – Senate 24th March 1999: “The slavery offences in the bill prohibit engaging in slave trading and possessing a slave or exercising any other power of ownership over a slave. The definitions of ‘slavery’ and ‘slave trading’, are based on the definitions of corresponding terms in the 1926 International Convention to Suppress the Slave Trade and Slavery (and its 1953 protocol) and the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, the two key international agreements on slavery and the slave trade. However, the bill definitions will be expanded in two important respects. First, the bill definition of ‘slavery’ has been expanded to make it clear that slavery can also arise from a debt or contract. It is not sufficient for the debt or contract to be exploitative or oppressive to qualify. Rather, it must be such as to place a person in a condition whereby a power attaching to a right of ownership is exercised over her or him.”

  3. The definition of “slavery” in the Act - Section 270.1 Criminal Code 1995: “Slavery is the condition of a person over whom all or any of the powers attaching to the right of ownership are exercised (including where such a condition results from a debt or contract).”

  4. The offence – Section 270.3(1)(a): “A person who, whether within or outside Australia – intentionally: (a) possesses a slave or (b) exercises over a slave any of the other powers attaching to the right of ownership is guilty of an offence.” Penalty – Maximum twenty-five years’ gaol.

  5. First Trial Two accused, Wei Tang and Paul Pick, her Melbourne manager at the brothel. Each of the accused were charged in regard to two counts as to each of the five complainants (the Thai women). Hence, each accused faced, in regard to the five women, five counts of Possess a Slave and five counts of Exercise Power of Ownership over a Slave, in this instance, the Power to Use. Pre-trial argument – 12 days. The trial took 32 sitting days or 6 weeks and 2 days. The charges took 5 hours and 45 minutes. The jury considered their verdict in this trial for 12 hours and 55 minutes.

  6. They returned the following verdict: Wei Tang – A hung jury on all 10 Counts, that is they could not decide. Paul Pick – They found him Not Guilty on Counts 1 to 8 and a hung jury in regard to Counts 9 to 10. Thereafter, the Commonwealth had to consider its position. It decided to continue the prosecution.

  7. The Second Trial The second trial began in 2006. Pre-trial argument took 6 days. The trial took 29 days (5 weeks and 4 days) – (albeit now only one accused and therefore one less counsel). It was an intelligent jury who considered its verdict for 14 hours and 5 minutes. THE JURY had to consider the following facts as to proof of slavery:

  8. Firstly, each of the five women had willingly come to Australia to work in the sex industry. • Each had willingly entered into a contract to pay $45,000 for the privilege of performing sex work in Australia (of that, $15,000 to $20,000 was paid by Wei Tang back to Thailand for each girl). • They had no money, limited English, no skills, and no way to pay the $45,000 but to perform the sex work. • The motive of each alleged slave was economic, that is, after the contract was paid off after three months, they hoped to dupe the immigration system for two years by applying for refugee status – hence earning over such period a substantial amount of income to take back to Thailand with them. • They were treated well – compare: publicity and the ABC productions set in Russia in recent years.

  9. They were not locked in their accommodation, but worked 6 nights per week from 6.00 pm to 3.00 am. Lodgings and food were provided. • Workload involved “serving”, under the contract, 900 customers over the period of 3 months. • In such period of 3 months, each girl would earn $100,000 – hence, between the brothel owner and the owners of the contract for all of the five women, the sum of $500,000 was the turnover in three months. • Each individual woman could earn income by working on what was known as the “day off”. While that was not what God the Father decreed in the Old Testament, the seventh day of rest became a seventh day of work, where if you worked for yourself on that day you could retain income which you earned.

  10. Division 270—Slavery 270.3 Slavery offences 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.

  11. Division 270—Slavery 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.

  12. Powers Attaching to the Right of Ownership Power: • To have the exclusive enjoyment of the property. • To exclude others from the property. • To destroy or alter property. • To sell or alienate the property. • To possess the property. • To use the property as one dictates. • To beneficially use the property at one’s discretion. • The power to receive the proceeds of the use of such property.

  13. Debt • An obligation to pay • A sum of money owed A debt is a sum of money now payable or which will be payable in the future by reason of a present obligation. Contract The act of entering into an agreement by two persons whereby they consent to acts to be done by each of them for the benefit of the other.

  14. ElementsCOUNTS 1, 3, 5, 7, 9 • That Wei Tang 2 At Melbourne 3 Intentionally 4 Possessed 5 A slave, namely [name omitted]

  15. Definition of Possession In the ordinary use of the word, possession means: one has in one’s possession whatever is, to one’s knowledge, physically in one’s custody or under one’s physical control. The issue to be considered here is the actual capacity for custody and control rather than a mere geographical nexus. One or more persons may possess another.

  16. Division 5—Fault Elements 5.3 Knowledge A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.

  17. 5.2 Intention (1) A person has intention with respect to conduct if he or she means to engage in that conduct.

  18. ElementsCOUNTS 2, 4, 6, 8, 10 1 That Wei Tang 2 At Melbourne 3 Intentionally 4 In respect to a slave, namely [name omitted] 5 Exercised a power attached to the right of ownership, namely the power to use.

  19. Use To take advantage of, manipulate or employ a person in a specified function or capacity.

  20. Re: Wei TangCOUNTS 1, 3, 5, 7, 9 A – Do you find, beyond reasonable doubt, between the 10th day of August 2002 and the 10th day of May 2003, that any and which of the powers attached to the right of ownership were exercised over [name omitted]? If NO – Find the Accused, Wei Tang, not guilty If YES – Go toB If NO – Find the Accused, Wei Tang, not guilty B - Do you find, beyond reasonable doubt, that [name omitted], between the 10th day of August 2002 and the 10th day of May 2003, was a slave? If YES – Go toC COUNT 1 If NO – Find the accused, Wei Tang, Not Guilty C – Do you find beyond reasonable doubt that Wei Tang intentionally possessed a slave, namely [name omitted]? If YES – Find the accused, Wei Tang, Guilty

  21. Re: Wei TangCOUNTS 2, 4, 6, 8, 10 A – Do you find, beyond reasonable doubt, between the 10th day of August 2002 and the 10th day of May 2003, that any and which of the powers attached to the right of ownership were exercised over [name omitted]? If NO – Find the Accused, Wei Tang, not guilty If YES – Go toB If NO – Find the Accused, Wei Tang, not guilty B - Do you find, beyond reasonable doubt, that [name omitted], between the 10th day of August 2002 and the 10th day of May 2003, was a slave? If YES – Go toC COUNT 2 If NO – Find the accused, Wei Tang, Not Guilty C – Do you find beyond reasonable doubt that Wei Tang intentionally exercised over a slave, namely [name omitted], a power attached to the right of ownership, being the power to use? If YES – Find the accused, Wei Tang, Guilty

  22. JURY? First – after approximately two hours’ deliberation • Does the defendant have to have known what the definition of slave is – “to intentionally possess a salve” as stated in the indictment? Second – after approximately eight hours’ deliberation • (a) To intentionally possess a slave, is it necessary for the accused to have knowledge that her actions amount to slavery? (b) Is it sufficient that the accused only have knowledge of the condition she has imposed, that is the word “slavery” has not entered her head, and the law has decided those conditions amount to slavery?

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