By Paul Gregoire and Ugur Nedim
Rungnapha Kanbut was sentenced to over 8 years prison in 2019, after a jury found her guilty on slavery offences relating to her involvement in a human smuggling scheme that saw Thai sex workers brought into the country and then coerced into working off a debt.
The case against her involved two women who met a Mr Chang in Thailand on different occasions. The man took naked photos of each woman and then used his possession of these shots to pressure them into travelling to Sydney to work in local brothels.
The Thai women allege that soon after arrival in Sydney, they met Kanbut and were taken to her Strathfield home, where their passports were confiscated and they were told that they had to work off a debt of $45,000 in various brothels, which involved 12 hours work seven days a week.
Kanbut’s criminal defence lawyers disputed the claims, arguing she hadn’t exercised control over the women at any time between November 2004 and July 2005, and as evidence they raised that the women were experienced sex workers, who continued to work in Sydney after they left the Strathfield house.
But as the appeals court recently found, while the defence countered most assertions put by the prosecution, the undisputed evidence reveals that Kanbut knew they were sex workers and that she was involved in an arrangement to facilitate their entry into the country to perform such work.
Guilty on all charges
Kanbut stood trial in 2019 on six charges. The first four counts involved possessing or exercising power of ownership over a slave, contrary to section 270.3(1)(a) of the Criminal Code (Cth). This offence carries a maximum penalty of 25 years imprisonment.
The Sydney woman further faced two counts of dealing with the proceeds of crime of over $10,000, which is contrary to section 400.6(1) of the Criminal Code. This is an offence that carries up to 10 years inside and/or a fine of $133,200.
Kanbut pleaded not guilty to each of the charges, but a NSW District Court jury returned a verdict of guilty on all charges on 15 May 2019.
On 15 November that year, District Court Judge Nanette Williams sentenced Kanbut to 8 years, 2 months and 30 days imprisonment, with non-parole set at 5 years, 2 months and 30 days.
Prior good character
Then 59-year-old Kanbut appealed her convictions and sentence to the NSW Court of Criminal Appeal (NSWCCA) last August. She raised three grounds against her convictions and a number of others relating to her sentence. And the court granted an extended timeframe in which to appeal.
The first ground raised against her conviction was that the sentencing judge’s directions regarding Kanbut’s prior good character were erroneous and constituted a miscarriage of justice.
Judge Williams provided the jury with a direction only after the defence had pressed the point. And in doing so, she gave a direction which involved telling the jury that the fact Kanbut had no prior convictions was of “some relevance to the likelihood of her committing those offences”.
On appeal, Kanbut’s lawyers pointed to the directions contained in the Criminal Trial Courts Bench Book to argue that unlike its model direction that conveys to jury members that they can take into account prior good character to counter assertions of guilt, no such instruction was provided at trial.
The Criminal Trial Courts Bench Book is a website run by the Judicial Commission of NSW that provides local courts with an overview of legal procedures that can be used as a guide by those presiding over criminal proceedings in this state.
But NSW Chief Judge at Common Law Robert Beech-Jones didn’t uphold this ground on appeal, as there is no rule of law necessitating a good character direction, so while it is preferred that the ability to take this into account is raised, there is no requirement to do so.
The second ground raised was that Kanbut’s former lawyer failed to present evidence of her good character via references from third parties until after she was convicted, so while these statements were cited during her sentencing hearing, they should have been produced during her trial.
On consideration of the specific statements of good character, Justice Beech-Jones found the ground wasn’t upheld as these references may have further cast doubt on Kanbut’s innocence and they didn’t counter the undisputed facts that suggest she was involved in sex trafficking.
Tendency evidence
The third ground involved a tendency direction given by the trial judge. Tendency evidence is information before the court relating to the character or prior conduct of an accused, which is used to show that they had a predilection to act in a certain manner.
The rules regarding tendency evidence are contained in section 97 of the Evidence Act 1995 (Cth), which provides as follows:
“(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless:
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.”
A tendency direction involves a judge advising a jury that as specific behaviour has been repeated then it may take this into consideration as displaying that an accused has a habit of acting in a certain way that constitutes the type of criminal behaviour they stand before the court in relation to.
Trial judge’s direction
Judge Williams put it to the court that Kanbut had a tendency towards the criminal behaviour she’d been charged with, as she required both women to work off a $45,000 debt in brothels, which involved extended hours and living in her family home, whilst she held onto their passports.
On appeal
Justice Beech-Jones found fault with the direction as it identified “the alleged tendency in precisely the same terms as the acts said to give rise to it”, and this required the similar behaviour involved in both crimes having to be established prior to any tendency, making the direction redundant.
“The tendency direction was meant to give the jury a pathway of reasoning from accepting the evidence of one of the complainants to accepting the other,” his Honour found.
“It not only failed to do that, it was capable of misleading the jury about what use could be made of their evidence and otherwise left the jury unassisted and most likely confused as to tendency reasoning.”
So, based on these considerations, the justice upheld this ground, and due to this, the grounds submitted in relation to Kanbut’s sentence did not have to be deliberated upon.
Orders of the day
On 5 December this year, Justice Beech-Jones ordered that Kanbut’s convictions be quashed, and that a retrial take place. And NSWCCA Justices Christine Adamson and Stephen Campbell agreed with their colleague’s orders.
