Difficulties in proving slavery without evidence of locks and chains.

Non-Physical Restraint.
In Wei Tang (The Queen v Wei Tang [2006] VCC 637), Justice McInerney accepted that there was no evidence that the alleged victims in that case had been held under lock and key. However, Justice McInerney found that due to a combination of circumstances, each alleged victim, while not locked in the premises, was 'effectively restrained by the insidious nature of their contract'. Justice McInerney suggested that to comprehend their circumstances, it was relevant to ask the rhetorical question:
How could they run away when they had no money, they had no passport or ticket, they entered on an illegally obtained visa, albeit legal on its face, they had limited English language, they had no friends, they were told to avoid Immigration, they had come to Australia consensually to earn income and were aware of the need to work particularly hard in order to pay off a debt of approximately $45,000 before they were able to earn income for themselves?

Confused Testimony.
When I was at the Villawood Detention Centre, I was totally exhausted and confused, and the time lapse between the event and time when I was in that detention centre has been a long lapse. I remember the events happening but I may have made some mistakes in the chronological order.
Usually, it's common for people to forget details as time passes, especially at that time I was particularly exhausted and confused (transcript of R v Tran, Xu & Qi, 8 April 2005).

Trafficking as a transnational crime
The transnational nature of many trafficking offences can complicate and even thwart prosecutions. For example, while a trafficking case might be prosecuted in the country where the exploitation took place, key evidence may be located in the trafficked person's country of origin. At least in the Australian context, if the evidence is required for court it will generally need to be sought from the country in question through formal channels (a process known as mutual assistance). While mutual assistance channels can operate quickly and smoothly, they can also be slow, inefficient and ineffective (ADB & OECD 2006: 73-105).

The matter is equally complex if the suspect or defendant is located in another jurisdiction. In these cases, investigators and prosecutors must decide whether to seek extradition (a lengthy and complex process) or provide their evidence to the country in question, thereby allowing the authorities in that country to investigate and prosecute. This may involve balancing a number of competing considerations, including the relative likelihood of a criminal justice process progressing in either jurisdiction, the likelihood of an extradition request succeeding and human rights issues.

Trafficked person may be the crucial witness
The trafficked person may be one of only a small number of people who can verify exactly what happened. Accordingly, their evidence may be crucial to the prosecution case (American Cultural Center 2007: 13). This can raise practical challenges for prosecutors.

In many countries, trafficked persons risk deportation or arrest for involvement in illegal activity such as visa fraud or illegal entry. This has the practical result of removing the key witness to the trafficking offence from the jurisdiction or ensuring they are in prison. Some countries have sought to redress this problem, through laws to protect trafficked persons from prosecution and to ensure the immigration status of trafficked persons can be regularised (Carrington & Hearn 2003: 2-13; Costello 2005: 7-11; ICMPD 2004: 53).

While visas and victim support strategies are vital, they also must be managed carefully in the context of a prosecution process. In an adversarial system, it is the defence counsel's role to explore any possible motives the victim and other witnesses may have for fabricating their story. Experience in the United States, Australia and Italy has confirmed that defence counsel can and will argue that the victim's or other witnesses' testimony has been 'bought' or tainted by 'opportunities' offered by the authorities. This might include immunity from prosecution, access to visas or entitlements under the victim support program (American Cultural Center 2007: 9-10; Costello 2005: 10). For example, in the Australian Sieders and Yotchomchin trial, defence counsel drew attention to the fact that the Australian Federal Police had helped key witnesses apply for visas that included work entitlements (see for example, pp. 506 and 630 of the transcript). The implication was that the witnesses should not be believed, as they had ulterior motives for participating in the criminal justice process.
Australian Government Office for Women
Department of Families, Housing, Community Services and Indigenous Affairs – PO Box 7576, Canberra Business Centre ACT 2610