R v Ahmad

Case [2012] NTCCA 1

The Queen v Ahmad [2012] NTCCA 01

PARTIES:THE QUEEN

v

AHMAD, Ahmad

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:21 of 2011 (21042169)

DELIVERED:  18 January 2012

HEARING DATES:  1 November 2011

JUDGMENT OF:  MILDREN, SOUTHWOOD AND MARTIN JJ

APPEAL FROM:  BLOKLAND J

CATCHWORDS:

CRIMINAL LAW - people smuggling – elements of the offence -- whether necessary to prove non-citizens entered Australia – whether s14 of the Criminal Code (Cth) applies – whether offence against s232A of the Migration Act can take place outside Australia - Migration Act 1958 (Cth)
s 232A, s 228A, s42(1)


STATUTORY INTERPRETATION – Whether necessary to prove non-citizens entered Australia – whether s14 of the Criminal Code (Cth) applies – whether offence against s232A of the Migration Act can take place outside Australia - Migration Act 1958 (Cth) s232A, s228A, s42(1)

Anti-People Smuggling and Other Measures Act 2010 (Cth) s233A

Criminal CodeAct 1995 (Cth) s 3.1, s 14.1

Criminal Code Act (NT) s 414(1)

Customs Act (Cth) s 185(3A)

Evidence Act (NT) s26L

Migration Act 1958 (Cth) s 4A, s 42(1), s 228A s 232A, s 245F(9)

R v Campbell (2008) 73 NSWLR 272, followed

Tran v Commonwealth (2010) 187 FCR 54, referred

REPRESENTATION:

Counsel:

Appellant:W J Abraham QC and L K Crowley

Respondent:  A Wyvill SC

Solicitors:

Appellant:Commonwealth Director of Public Prosecutions

Respondent:  Northern Territory Legal Aid Commission

Judgment category classification:    A

Number of pages:  21

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA

The Queen v Ahmad [2012] NTCCA 01

No. 12 of 2011 (21042169)

BETWEEN:

THE QUEEN

Appellant

AND:

AHMAD AHMAD

Respondent

CORAM:     Mildren, Southwood and Martin JJ

REASONS FOR JUDGMENT

(Delivered 18 January 2012)

MILDREN J:

Introduction

  1. The respondent is charged upon an ex officio indictment with the following alleged breach of s 232A of the Migration Act 1958 (Cth) (the Act):

    “That between about 1 May 2010 and 11 May 2010, at a place within the waters of the Australian Exclusive Economic Zone between Scott Reef and Broome, Western Australia, and elsewhere, did facilitate the bringing to Australia of a group of five or more people to whom section 42 (1) of the Migration Act 1958 applies, namely 49 people, being reckless as to whether the people had a lawful right to come to Australia.”

  2. After pre-trial submissions were heard before a jury was empanelled, the learned trial judge ruled that on the facts alleged by the Crown, the group of 5 or more persons concerned were not people to whom s 42(1) of the Act applied within the meaning of s 232A, and accordingly granted a stay of the proceeding.

  3. Section 42(1) of the Act provided:

    “Subject to subsections (2), (2A) and (3)[1], a non-citizen must not travel to Australia without a visa that is in effect”.

  4. The learned trial judge’s decision rested upon a construction of section 232A that the reference therein to “a group of…

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Details
AGLC
R v Ahmad [2012] NTCCA 1
Case
[2012] NTCCA 1
Decision Date

CaseChat Overview and Summary

The appeal concerned Mr Ahmad, who was charged with an offence under section 232A of the *Migration Act 1958* (Cth). The dispute arose from the prosecution's assertion that Mr Ahmad organised or facilitated the bringing of a group of non-citizens to Australia. The Court of Appeal of the Supreme Court of the Northern Territory was required to determine whether the offence under section 232A could be committed outside of Australia and whether it was necessary to prove that the non-citizens had actually entered Australia.

The legal issues before the court were whether section 232A of the *Migration Act* could apply to conduct occurring outside of Australia's territorial waters, and whether the offence required proof that the non-citizens had entered Australia. The court also considered the interpretation of "people to whom subsection 42(1) applies" within the context of section 232A.

The court reasoned that section 232A of the *Migration Act* is aimed at those who organise or facilitate the bringing or coming to Australia of a group of five or more non-citizens who do not hold current visas. The court held that it is not necessary for the prohibited persons to have successfully entered Australia for the offence to be completed. The physical element of the crime is satisfied once the organisation or facilitation has occurred, irrespective of whether the travel to Australia is undertaken or successful. The court found that the people to whom section 42(1) applies are non-citizens who do not possess a visa that is in effect, and this definition does not require them to have entered Australia in breach of section 42(1).

The Court of Appeal unanimously allowed the appeal, set aside the stay, and delivered its reasons. The court concluded that the trial judge had erred in their interpretation of section 232A.

Orders

Orders of the court

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Background

Background to the litigation

At the conclusion of the hearing, the Court unanimously allowed the appeal and set aside the stay. We said that we would deliver our reasons at a later time. These are my reasons.The facts On or about 1 May 2011 Mr Ahmad was present on a boat in Indonesia in the capacity of crew or master. The boat was later designated SIEV 146. He assented to 49 persons boarding the boat near the shoreline of an Indonesian island. Acting as crew or master of the boat he began a journey by sea from Indonesia in the direction of Australia across the waters between the two countries; he indicated to one or more of the passengers by words and gestures that the boat was destined for Australia and would arrive in seven days. It is alleged that on a daily basis, (with another Indonesian person who then left the boat, but with whom he shared responsibility for the boat), Mr Ahmad stopped and started the engine; drove the boat; steered the boat; navigated the boat using a compass on a course of 120 degrees; steered the boat towards Australia; did jobs on the boat; and possessed or had access to a mobile phone. He did not ask any passenger whether they had permission or authorisation to come to Australia. Between about 9 and 11 May 2010 he was the only crew member; he was in charge of the boat; he told a passenger he was lost, then followed advice given to him by a passenger on the boat to head east. On 10 May 2010 the boat was detected by an Australian Customs Vessel. The boat was intercepted by Australian Customs Officers on 11 May 2010. Mr Ahmad made admissions to Australian Customs Officers that he was from Lombok; the boat was from Lombok; he was intending to go to Australia; he wished to leave the boat; and, he agreed to the boat being destroyed. The relevant conduct forming the basis of the charge, the location of the detection and interception, took place outside of Australia; outside of Australia’s territorial sea and contiguous zone. It occurred within the Australian Exclusive Economic Zone. The 49 people on the boat at all relevant times were outside of Australia and the Australian contiguous zone. None had Australian entry visas. It is not alleged the accused brought the 49 persons into the “migration zone”. Mr Ahmad consented to boarding the Customs vessel. The Australian Customs authority to board and transfer the passengers was made under SOLAS.[2] There was little before the Court by way of facts about the purpose of the 49 persons making the voyage. It was not disputed that their motivation was to seek asylum, or apply for protection visas in Australia. Counsel for the Crown in the Court below informed the Court that all passengers had asked to be recognised as refugees and all had applied for protection visas. A number had been granted visas and were living in the community; there were at least five whose status had not yet been determined and were in detention.The appellant’s contentions Section 232A provided:[3] Organising bringing groups of non-citizens into Australia(1)“A person who:(a)organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of 5 or more people to whom subsection 42(1) applies; and(b)does so reckless as to whether the people had, or have, a lawful right to come to Australia;is guilty of an offence punishable on conviction, by imprisonment for 20 years or 2000 penalty units, or both.(2)For the purposes of subsection (1), the defendant bears an evidential burden in relation to establishing that subsection 42(1) does not apply to a person because of subsection 42(2) or (2A) or regulations made under subsection 42(3).”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In our opinion her Honour erred in doing so.Consideration Section 232A of the Migration Act 1958 (Cth) creates an offence of engaging in a particular activity with respect to a group of five or more specified persons identified in s 232A as “people to whom s 42(1) applies”. Subsection 42(1) of the Act does not create an offence. It is in Division 3 of Part 2 of the Act which is concerned with the control of arrival into and the presence of non citizens in Australia and visas for non citizens. In this context, s 42(1) of the Act prohibits certain persons from travelling to Australia. Who are those persons who are prohibited? Subsection 42(1) of the Act identifies those persons as non citizens who do not possess a visa that is in effect. For the purpose of s 232A of the Act, the people to whom s 42(1) of the Act applies are non citizens who do not possess a visa that is in effect. The submission accepted by the trial Judge and repeated in this Court erroneously restricted persons to whom s 42(1) of the Act applies for the purpose of s 232A to those non citizens without current visas who enter Australia in breach of s 42(1) of the Act. There is no reasonable basis for construing s 232A of the Act in this way. It would be different if s 42(1) of the Act created an offence. In that situation it could reasonably be said that those to whom s 42(1) of the Act applies are those persons who commit an offence against that section. However, s 42(1) of the Act does not create an offence. It merely identifies a class of persons who are prohibited from travelling to Australia, namely, non citizens without a current visa. It is that class of persons who are identified in s 232A of the Act as the persons with respect to whom the activity identified in s 232A, accompanied by the relevant state of mind, will amount to an offence against that section. Not only does the ordinary meaning of the words in s 232A of the Migration Act 1958 (Cth) produce this result, but the very nature of the offence created supports the view that it is not necessary for the prohibited persons to have travelled to Australia before the offence is committed. Section 232A of the Act is aimed at those persons who organise or facilitate the bringing to Australia or coming to Australia of a group of five or more non citizens who do not hold current visas. No doubt a successful entry of the prohibited persons into Australia would be an aggravating circumstance accompanying the crime, but successful entry is not an element of the crime. Once the organisation or facilitation has occurred, the physical element of the crime is completed, regardless of whether the travel to Australia is undertaken or, if undertaken, is successful or unsuccessful. The elements of the offence in the respondent’s case are:1. Between 1 May 2010 and 11 May 2010, the accused facilitated the bringing to Australia of a group of five or more people (“the passengers on the sea SIEV 146”). 2. The accused meant to facilitate the bringing of the passengers of the SIEV 146 to Australia.3. At least five of the passengers on the SIEV 146 were people to whom s 42(1) of the Migration Act 1958 (Cth) applies. That is, the passengers were not Australian citizens; and at the relevant time they did not have valid visas permitting them to enter Australia.4. The accused was reckless as to whether the passengers on the SIEV 146 had a lawful right to come to Australia.