R v Zainudin

Case [2012] SASCFC 133

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v ZAINUDIN

[2012] SASCFC 133

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Stanley)

14 December 2012

CITIZENSHIP AND MIGRATION - MIGRATION - OFFENCES - BRINGING NON-CITIZENS INTO AUSTRALIA

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRIMA FACIE CASE OR CASE TO ANSWER - GENERALLY

The appellant was convicted of aggravated people smuggling (Migration Act 1958 (Cth) s 233C). A boat containing 83 passengers (principally Iranian and Iraqi citizens) was intercepted 15 nautical miles from Christmas Island, just outside the Australia territorial sea. The appellant was one of two Indonesian crew members on the boat. The Indonesian captain had left the boat the previous day in international waters.

Mr Zainudin appeals against his conviction on essentially two grounds:

1. that section 233C of the Migration Act 1958 (Cth) does not have extra-territorial operation (beyond the territorial sea);

2.       that there was no basis on which an inference was capable of being drawn or a finding was capable of being made that Mr Zainudin knew that the intended destination of the passengers was Australia.

Held:

Per Blue J (Kourakis CJ and Stanley J agreeing):

1. Section 233C has extraterritorial operation. R v Ahmad [2012] NTCCA 1 and R v Mahendra (Unreported, Supreme Court of the Northern Territory, Mildren ACJ, Southwood J and Kelly J, 4 June 2012) followed (at [43]-[55]).

2.       The trial Judge erred in ruling that there was a case to answer on the issue whether Mr Zainudin knew that the ultimate destination of the passengers was Australia. The evidence adduced by the prosecution rose no higher than suspicion and speculation and was incapable of giving rise to such an inference (at [75]-[84]).

Orders made:

1.       Appeal allowed;

2.       Verdict of guilty set aside; 

3.       Verdict of acquittal substituted.

Acts Interpretation Act 1901 (Cth) s 2B; 15B; Criminal Code Act 1995 (Cth) s 3; The Criminal Code (Cth) s 4.1; s 5.4; s 5.6; pt 2.7; s 14; s 15; pt 2.2; pt 2.3; pt 2.4; pt 2.6; pt 2.7; Migration Act 1958 (Cth) s 4A; s 5; s 228A; s 228B; s 229; s 230; s 232; s 232A; s 233A; s 233C; s 233C(1); s 233C(2); s 336B; s 245AJ; pt 2; div 12 sub-div A; Seas and Submerged Lands Act 1973 (Cth) s 3 and Schedule; United Nations Convention on the Law of the Sea art 33(1), referred to.
R v Ahmad [2012] NTCAA 1; (2012) 31 NTLR 38; R v Mahendra  (Unreported, Supreme Court of the Northern Territory, Mildren ACJ, Southwood J and Kelly J, 4 June 2012)., applied.
Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495; Question of Law (No 2 of 1993) (1993) 61 SASR 1; R v Mahendra [2011] NTSC 57; R v Razak [2012] QCA 244, discussed.
Australian Crime Commission v Stoddart [2011] HCA 47;

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R v Zainudin [2012] SASCFC 133
Case
[2012] SASCFC 133
Decision Date

CaseChat Overview and Summary

The appeal concerned Mr Zainudin, who was convicted of an offence under section 233C of the *Migration Act 1958* (Cth) for bringing non-citizens into Australia. The prosecution's case was based on circumstantial evidence, and Mr Zainudin contended that the trial judge erred in ruling that there was a case to answer at the conclusion of the prosecution's evidence. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Blue and Stanley JJ.

The legal issues before the court were twofold: first, whether section 233C of the *Migration Act* applied to conduct occurring outside of Australia's territorial waters; and second, whether the jury, at the stage of considering a case to answer or at the end of the trial, could have been satisfied beyond reasonable doubt that Mr Zainudin possessed the necessary knowledge that the passengers were being brought to Australia. The court considered the application of the *Criminal Code*'s provisions on geographical jurisdiction to the offence.

The court allowed the appeal, finding that section 233C of the *Migration Act* did not have extra-territorial operation in the manner contended by the prosecution. The court reasoned that, in the absence of a clear contrary intention within the Act, the standard geographical jurisdiction provisions of the *Criminal Code* applied, which required conduct to occur or have a result within Australia. As Mr Zainudin's conduct did not meet this threshold, there was no case to answer on this basis. Consequently, the court held that the jury could not have been satisfied beyond reasonable doubt of the requisite knowledge for a conviction.

The court set aside the jury's verdict and substituted a verdict of acquittal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The appeal raises two questions:1.Does section 233C of the Migration Act 1958 (Cth) apply to conduct outside Australia?2.Was it open to the jury (at the case to answer stage or at the end of the trial) to be satisfied beyond reasonable doubt that Mr Zainudin had the requisite knowledge that the passengers were being brought to Australia?Backgrounds facts: prosecution case Mr Zainudin contends that the trial Judge erred in ruling that there was a case to answer at the conclusion of the prosecution case. The background facts set out below are based upon the evidence adduced in the prosecution case and disregard the evidence subsequently given by Mr Zainudin and Mr Slamet. The prosecution called eight witnesses. The principal witnesses were three Iranian and two Iraqi passengers. A navy petty officer, federal police officer and immigration officer gave relatively formal evidence. On 5 May 2011, between approximately 1.00 am and 2.00 am, 83 passengers boarded a fishing vessel off a port situated somewhere in Java, Indonesia. Most (67) were Iranian. A minority (11) were Iraqi. One was Moroccan. The nationality of the remaining four (a family) was not identified. The boat was less than 15 metres long and approximately 2 metres wide. It had a flat-roofed enclosed cabin. Forward of the cabin was an open below-deck area. Forward again was a small decked area which also comprised a partial roof for the below deck area. It had no kitchen or cooking facilities. It had no toilet as such but it had a small hole in the decking towards the stern. It was of wooden construction and in relatively poor condition. The boat was crewed by three Indonesians: Mr Zainudin, Mr Slamet and a third Indonesian who was not identified and was the captain on the prosecution case. The Indonesian crew members generally stayed within the cabin or rested or slept on the roof of the cabin. Food (fruit, biscuits and cakes) and water were kept at the front of the boat. The passengers helped themselves. Families were placed in the cabin. Single passengers were placed in the forward area. There were approximately 40 such passengers in each area. It was crowded for the passengers. Generally there was sitting room only. The Iranian witnesses spoke Persian. One spoke a little English. They did not speak Arabic, Turkish or Indonesian. The Iranian passengers generally spoke Persian and did not speak Arabic, Turkish, Indonesian or English. The Iranian witnesses had dealt with and paid Iranian people smugglers. They had flown from Iran to Jakarta. They had travelled in a convoy of vehicles with the other Iranian passengers for 12 hours from Jakarta to the port of embarkation in Java. The Iraqi witnesses spoke Arabic. One spoke a little English. They did not speak Persian or Indonesian. The Iraqi passengers generally spoke Arabic or Turkish and did not speak Persian, Indonesian or English. The Iraqi witnesses had dealt with and paid Iranian or Iraqi people smugglers. They had flown from Iraq to Malaysia. The Iraqi passengers had been taken by boat from Malaysia to Java and then by vehicle to the port of embarkation in Java.

Evidence

Evidence Before The Court

The test for a submission of no case to answer in a circumstantial case was stated by this Court in Questions of Law (No 2 of 1993)[30] as follows:If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilty beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent within innocence, as not reasonably open on the evidence.[31][30] (1993) 61 SASR 1.[31] (1993) 61 SASR 1 at 5 per King CJ (Bollen J agreeing).The passengers’ evidence It is necessary to consider in detail the evidence given by the five passenger witnesses concerning communication with the crew. Mr Ghanbari and Mr Ranjbar Rad, each with his wife and son, travelled in the cabin of the boat with the other families. They were both Iranian and spoke Persian. They gave their evidence through a Persian interpreter. They did not speak Indonesian. Mr Ghanbari gave evidence that he did not have any conversation with the Indonesian crew. He did not observe the crew having any conversation with any other passengers. His fellow passengers did not speak or understand Indonesian, and the Indonesian crew did not understand Persian. The Indonesian crewmen spoke very little amongst themselves, did not use any English words and did not say “Australia”. Mr Ghanbari gave evidence that he had been told by the Iranian people smugglers and his fellow Iranian passengers before embarkation that they would be travelling to Christmas Island. He had been told that, when the boat reached free waters, the Australian navy would come to meet the boat. He had also been told by one of the Iranian people smugglers that two boats would depart from the Indonesian port and the second boat would come back halfway to take the Indonesian captain back to Indonesia because they did not want to lose him. Mr Ghanbari gave evidence that, halfway though the voyage, the Indonesian captain jumped off the boat and swam to the second boat, which then turned back. Mr Ghanbari was not surprised or concerned by this because he had been told in advance that it would happen. The passengers knew that they were in free waters at that point because of what they had been told before embarkation. He did not say that any of the Indonesian crew told him or the other passengers that they were in free waters at that point. Mr Ranjbar Rad gave evidence that he had recently had a heart operation and spent most of the time lying down at the very front of the cabin very close to the Indonesian crew. He had no conversation with the Indonesian crew members. He did not observe the crew having any conversation with any passengers. At one stage of the journey, one of the three Indonesian crew members dived into the water and swam to the other boat. At that point, he heard it passed from mouth to mouth by his fellow Iranian passengers “these are the free waters”.

Decision

Reasons for decision

The second ground of appeal succeeds and Mr Zainudin is entitled to be acquitted.Conclusion I would allow the appeal. I would set aside the jury’s verdict and substitute a verdict of acquittal STANLEY J: I would allow the appeal. I would set aside the jury’s verdict and substitute a verdict of acquittal. I agree with the reasons of Blue J.

Ratio Decidendi

Legal Principle Established

In 2010, the Migration Act was amended by repealing (amongst other provisions) section 232A and substituting new sections 233A to 233C.Extra-territorial operation The first ground of appeal is that the trial Judge erred in law in holding that section 233C of the Migration Act has extra-territorial operation (outside the 12 nautical mile territorial sea) and in ruling that there was a case to answer on this issue. This involves the physical element in section 233C(1)(a). It turns on the construction of section 233C in the context of other provisions of the Act (specifically sections 4A and 228B) and the application of Part 2.7 of the Criminal Code). It is common ground that “entry into Australia” within the meaning of section 233C(1)(a) means entry into the “migration zone” being essentially the land of Australia, including its territories, and “internal” seas.[18] It is common ground that “Australia” the subject of “bringing or coming” within the meaning of section 233C(1)(a) includes not only the migration zone but also the territorial sea (12 nautical miles).[19][18] See the definitions of “enter Australia” and “migration zone” in s 5 of the Migration Act.[19] Acts Interpretation Act 1901 (Cth) ss 15B and 2B; Seas and Submerged Lands Act 1973 (Cth) s 3 and Schedule. Part 2.7 of the Criminal Code defines “standard geographical jurisdiction” and four categories of “extended geographical jurisdiction”. It distinguishes between primary and ancillary offences. The description which follows applies only to primary offences. Section 14.1(2) of the Criminal Code provides that “Standard geographical jurisdiction” applies to conduct occurring, or having a result, wholly or partly in Australia or on board an Australian aircraft or ship. At the opposite extreme, section 15.4 provides that “Extended geographical jurisdiction-category D” applies to conduct regardless of whether it occurs, or has a result, in Australia. Section 14.1(1) of the Criminal Code provides that “Standard geographical jurisdiction” applies to a particular offence:(a)“unless the contrary intention appears”, where the provision creating the particular offence commences at or after the commencement of section 14.1 [ie 24 May 2001]; or(b)if a law of the Commonwealth provides that section 14.1 applies to the particular offence. Sections 233A to 233C of the Migration Act were enacted with a commencement date of 1 June 2010.[20] Accordingly, unless “the contrary intention appears”, section 14.1 of the Criminal Code applies “standard geographical jurisdiction” to the basic and aggravated offences of people smuggling.[21] [20] Inserted by Anti-People Smuggling and Other Measures Act 2010 (Cth) Schedule 1, item 8 enacted by s 3 of that Act.[21] It was not suggested by either party that in substance s 233C had commenced in 1999 when its predecessor s 232A had been inserted. I proceed on that assumption. It is common ground that Mr Zainudin did not engage in any conduct in, or which had a result in, Australia within the meaning of section 14.1(2) of the Criminal Code. The issue on appeal is therefore whether a “contrary intention appears” from sections 233A to 223C of, or more generally from, the Migration Act.