Slavery: a question of power

Apr 14, 2012

Watcharaporn Nantahkhum.

Watcharaporn Nantahkhum. Photo: Gary Schafer

She came to Canberra as a divorcee, a single mum helping her own mother cope after the death of her father. The bank was sending threatening letters about the family rice field - she needed to make quick money, pay off the mortgage and put her son through school. What she got instead was isolation in a foreign country, debt bondage and rape.

Now her captor, Watcharaporn Nantahkhum, is behind bars facing the prospect of a lengthy prison sentence. A jury last week found Nantahkhum guilty on charges of intentionally possessing a slave, attempting to pervert the course of justice and offences under the federal Migration Act.

Never before had a slavery trial been heard in a Canberra court, successfully or otherwise. And it was the first time the Migration Act offences had been contested at trial in a Canberra court. But in many ways it was an old, nightmarish story.

At its heart it was a human trafficking case, the story of Thai women brought to Australia to work illegally in the sex industry. Between mid-2007 and May 2008 Nantahkhum employed two Thai women - the holders of tourist visas banning them from working - as prostitutes working out of the Dowling apartments on Torrens Street in Braddon.

Andreas Schloenhardt, coordinator of University of Queensland's human trafficking working group, told The Canberra Times the case followed a ''standard scenario of sex trafficking in an Australian context''. ''And there is very little surprising about it other than the fact that it took place in Canberra rather than Sydney or Melbourne.''

As defence barrister James Sabharwal noted in his opening address, the case centred on the capital's ''somewhat infamous sex industry''. And Justice Richard Refshauge urged the jury not to be swayed by moral qualms about prostitution or sympathy for circumstances which persuaded the victim to enter the profession.

The prosecution painted a portrait of a vulnerable woman, out of her depth in a foreign country with no money, no friends and no choice but to submit. The defence described their client's accuser as a mercenary out to make money, with an axe to grind against the woman she believed dobbed her in to immigration authorities.

Connections between Nantahkhum and parties in Thailand were laid out during eight days of evidence and submissions. The court heard the victim was put in touch with the defendant's sister, Aneknun Nantahkhum, who ran a Bangkok massage parlour, and a man named ''Koi''.

Koi operated a ''tourist company'' called P&S International Tours Group. To secure tourist visas for both women the company put them on its books as directors; in the case of the first woman 170,000 baht was placed in her account and later removed. After the pair overstayed their visas, immigration officials discovered both women were no longer listed as P&S directors. ''I guess from a trafficker's perspective the greatest hurdle is to get them into Australia, and the greatest risk they run is being apprehended when they go through the airports in Australia,'' Schloenhardt said. ''So I think they put a lot of money and a lot of effort into concealing this very step.''

The woman held as a slave arrived first in Melbourne, where she was picked up from the airport by a man named Prapat Vatanopast. The court heard she agreed to have consensual sex with Vatanopast for money, and he put her on a flight to Canberra the next day. Nantahkhum and a friend and former client, Robert Phillip Dick, picked her up at the airport and took her to the Torrens Street apartment where she would spend most of the next few months.

In her evidence, the woman said prior to arriving in Australia she'd been told she would be expected to service three or four clients a day and pay off a $45,000 debt, later negotiated down to $43,000. Upon her arrival she was told the earnings would be split between her and Nantahkhum, but her share would be taken to cover the debt. A meticulous ledger showed she in fact serviced as many as 14 clients a day. The debt was paid off in less than four months; by that time she had serviced about 720 men.

The woman maintained Nantahkhum took her passport - an allegation the defence argued wasn't consistent with the evidence of other witnesses. And she said she was denied a key to the apartment - another allegation disputed by the defence. During the first few months the woman said she only rarely left the apartment, and only with an escort and her employer's permission.

Nantahkhum placed personal ads in this newspaper spruiking the services of both sex workers, and the court heard she would call and tell them when to expect clients, sometimes with just five or 10 minutes' notice.

Under cross-examination, the slave-charge victim indicated she could refuse a client if they were deemed too drunk or dirty. But she told the court she was generally unable to choose her clients and was required to work long hours - a claim the defence disputed.

It was about this time she was sexually abused by Dick, who lived in the same Braddon apartment. During his own trial, the 57-year-old former tiling contractor explained he would act as a ''minder'' when Nantahkhum was away, and claimed any sexual contact was consensual. The terminally-ill man was found guilty on two counts of sexual intercourse without consent and one charge of committing an act of indecency without consent. He is now awaiting sentencing in the ACT Supreme Court.

The two women were allegedly moved from the apartments to a house in Wise Street in October 2007 after a complaint from the neighbours. But the court heard Nantahkhum began charging them each $200 rent each day, persuading them to strike out on their own, until they came to the attention of authorities. The primary victim subsequently gave a statement to police.

Superintendent Glyn Lewis is the national coordinator of the Australian Federal Police's human trafficking team. He declined to discuss details of the Nantahkhum case, with the matter still before the courts for sentencing, but spoke generally about the circumstances facing similar victims.

''They know they're coming to Australia, they think that coming here they're going to get a fair wage,'' he said. ''But what they find when they come is they're debt bonded, and they're forced into conditions which are not acceptable to a country like Australia. They might be excessive hours, their passport might be seized, they may be coerced, whether psychologically or physically, to remain in a situation they're not free to leave from.''

Identifying victims who are often frightened or unwilling to cooperate with authorities remains a problem and a potential barrier to prosecutions. ''What I find quite alarming is that the majority of trafficking cases that we have detected in Australia came to the attention of authorities at the instigation of the victim,'' Schloenhardt said. ''That says to me if the victim doesn't come forward the chances of us finding the case are quite low.''

Schloenhardt said it was also important to encourage brothel clients to come forward if they had suspicions.

''I guess the sort of practical argument is that any of the victims would have come into contact with dozens, if not hundreds of Australian citizens that use services of these victims,'' he said. ''And the police could argue any of these customers who went into the brothel to get sex could have been the person reporting that had they recognised the signs. By creating some awareness among people who are most likely to come into contact with victims, customers of brothels or in other industries where trafficking may take place … if they understand the signs of trafficking and are willing to report that we might be able to apprehend victims much earlier than we have.''

Lewis said his unit received a large number of referrals from the Department of Immigration and Citizenship as well as regulatory bodies and non-government organisations. ''There's a whole range of issues, both cultural and psychological, that may prevent a victim coming forward,'' he said.

Slavery provisions were enshrined in the Criminal Code in 1999, and have since largely been wielded to prosecute cases involving debt bondage and trafficking. It's an unusual concept based on an almost hypothetical premise - slavery doesn't exist in Australia, so a jury must be satisfied the accused exerted ''powers attached to the right of ownership over the person''. Importantly, the definition contains the phrase ''including where such a condition results from a debt or contract made by the person''.

In her closing address to the jury Commonwealth prosecutor Sara Cronan summarised the issue thus:

''First I ask you to clear your minds of everything you thought you knew about slavery - everything you've seen in films or read in books,'' she said. ''Because what we're dealing with is the legal definition of what the government of Australia says [amounts] to slavery. The law makes it very clear you don't need to be locked up or shackled or beaten in Australia to be in a condition of slavery.''

The provision got a thorough working out in the Victorian case of Wei Tang, a matter which went all the way to the High Court. In 2006 Tang became the first person convicted by a jury under the slavery provisions. As in the Nantahkhum case, the jury heard the victims' passports were taken, they were forced to work long hours and they voluntarily entered a debt of between $40,000 to 45,000. And like the Canberra trial, the Crown argued the victims had little money, scant English and their visas were obtained illegally.

But unlike the Nantahkhum case there were five victims, and the court heard Tang had a 70 per cent interest in a syndicate which brought them out to Australia. Tang was jailed for 10 years to serve at least six, later reduced to nine years, but the convictions were quashed in the Court of Appeal and a retrial was ordered. The Crown then appealed to the High Court, with Tang cross-appealing, and the judges eventually ruled in the prosecution's favour.

The most contentious issue was the question of the intent required to prove the charge. Ultimately, six of the seven judges agreed the Crown did not have to prove the accused knew the victims were slaves, rather that she knew she exercised powers over them. It was a point explained to the Nantahkhum jury, who deliberated for about two hours and 15 minutes before returning their verdicts.

Schloenhardt said there were about half a dozen cases heard in Australian courts with a broadly similar set of circumstances to the trials of Tang and Nantahkhum. His working group keeps track of trafficking investigations and prosecutions across the country. Between January 2004 and June 2010 just 39 cases were referred to the office of the Commonwealth Director of Public Prosecutions from 270 investigations. As at the middle of last year just 13 convictions had been handed down for offences of slavery, sexual servitude and people trafficking since the laws came into effect in 1999.

Schloenhardt said the success rate of such cases was about 60 to 65 per cent - ''a relatively good figure''. But the working group estimates about 25 allegations of trafficking are made to authorities each year, with very few ever getting to court.

''Many of them are in great fear of the traffickers, they have been threatened for a very long time, they don't trust the authorities, and are often unwilling, even in very grave cases to testify against the traffickers,'' Schloenhardt said.

North American and Canadian jurisdictions had proved more willing to prosecute without a ''crying victim'' in front of them. ''And maybe there can be changes to the way in which we direct juries and the way in which we collect and call evidence,'' he said. ''I would identify this as the single biggest obstacle to having greater numbers of convictions in Australia.''

Both of Nantahkhum's victims were subsequently granted permanent visas, and are now living in Australia lawfully.

■ Anyone with information about suspected human trafficking should contact the Australian Federal Police on 131 237 or visit www.afp.gov.au.

Louis Andrews is Court Reporter.

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