R v Zainudin - [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; (2011) 244 CLR 554; Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485; Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89; Lacey v Attorney-General of Queensland [2011] HCA 10; (2011) 242 CLR 573; PJ v The Queen [2012] VSCA 146; R v Johnson (1979) 22 SASR 161; R v Liddy (2002) 81 SASR 22, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"bringing or coming to Australia"
"organises or facilitates"

R v ZAINUDIN
[2012] SASCFC 133
Court of Criminal Appeal: Kourakis CJ, Blue and Stanley JJ

KOURAKIS CJ: I would allow the appeal. I agree with the reasons of Blue J.
BLUE J: The appellant/defendant Mr Zainudin was charged, jointly with Mr Slamet, with the offence of aggravated people smuggling.[1] The particulars were that, between 5 and 7 May 2011 in Indonesia and in the seas between Indonesia and Australia, they facilitated the bringing to Australia of 83 non-citizens who had no lawful right to come to Australia, being reckless whether they had such lawful right.
[1] Migration Act 1958 (Cth) s 233C.
Mr Zainudin was convicted by a jury in the District Court. Mr Slamet was acquitted. Mr Zainudin appeals against his conviction.
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.
The Iranian witnesses and the Iraqi witnesses gave evidence that they had talked amongst themselves en route to the embarkation port. They had been told by the people smugglers that they would be taken by boat to Christmas Island, which was part of Australia.
On the first day of the journey, the weather and sea conditions were poor. It was stormy, rainy and windy. The seas were rough.
On the second day, weather conditions improved but the seas were still rough. The boat stopped at sea. Another boat approached. It threw a rope towards the boat. The Indonesian captain jumped off the boat and was pulled by rope to the second boat. The second boat then turned and departed. The boat continued on its course under the control of Mr Zainudin and Mr Slamet. Later, at about 4.00 pm, an Australian surveillance aircraft observed the boat approximately 130 kilometres northeast of Christmas Island heading southwest towards Christmas Island.
About 8.30 am on the third day, the boat was detected by radar by HMAS Broome. At about 9.50 am, a navy boarding party boarded the boat. The boat was approximately 15 nautical miles from Christmas Island. Christmas Island was then visible. The boat was approximately 3 nautical miles outside Australian territory. The commanding officer of the boarding party directed the Indonesian crew members (Mr Zainudin and Mr Slamet) to proceed to Christmas Island by pointing to the island.
Mr Zainudin and Mr Slamet spoke Indonesian. They did not apparently speak Persian, Arabic, Turkish or English. There was very little communication between the passengers and the three Indonesian crew members throughout the journey. Such communication as occurred was in sign language because they did not speak a common language. The evidence of communications is important and is addressed in detail below.
Christmas Island is a territory of Australia. The land[2] and the sea 12 nautical miles around Christmas Island[3] comprises part of “Australia” for the purposes of section 233C of the Migration Act 1958 (Cth) (“the Migration Act”).
[2] Acts Interpretation Act 1901 (Cth) s 2B.
[3] Acts Interpretation Act 1901 (Cth) ss 15B(2) and 2B; Seas and Submerged Lands Act 1973 (Cth) s 3 and Schedule.
Christmas Island is approximately 200 nautical miles south of the very western end of Java. It is approximately 900 nautical miles northwest of Australia (the Kimberley coast).
The statutory provisions
Subsections 233C(1) and (2) of the Migration Act provide:
(1)     A person (the first person) commits an offence if:
(a)     the first person organises or facilitates the bringing or coming to Australia,             or the entry or proposed entry into Australia, of a group of at least 5 persons            (the other persons ); and
(b)     at least 5 of the other persons are non-citizens; and
(c)     the persons referred to in paragraph (b) who are non-citizens had, or have, no                lawful right to come to Australia.
Penalty:     Imprisonment for 20 years or 2,000 penalty units, or both.
(2)     Absolute liability applies to paragraph (1)(b).
(Notes Omitted)
Section 228B(1) provides:
For the purposes of this Subdivision, a non-citizen has, at a particular time, no lawful right to come to Australia if, at that time:
(a)     the non-citizen does not hold a visa that is in effect; and
(b)     the non-citizen is not covered by an exception referred to in subsection 42(2)         or (2A); and
(c)     the non-citizen is not permitted by regulations under subsection 42(3) to                travel to Australia without a visa that is in effect.
The physical element of the aggravated offence of people smuggling under section 233C relevantly comprises facilitating the bringing to Australia of at least five non-citizens who have no entitlement to travel to Australia.[4]
[4] Re-combining the three disaggregated elements contained in paragraphs (a), (b) and (c) of section 233C(1) in accordance with the approach of the Court of Appeal of the Supreme Court of Victoria in PJ v The Queen [2012] VSCA 146 at [35]-[37] per Maxwell P, Redlich and Hansen JJA.
The fault elements[5] of the offence relevantly comprise:
(a)the defendant intended to organise or facilitate the bringing or coming to Australia of the other persons, knowing that their destination was Australia (corresponding to physical element one);[6] and
(b) the defendant knew that, or was reckless[7] as to whether, the other persons had no entitlement to travel to Australia (corresponding to physical element three)[8].
[5] There is no fault element corresponding to the five persons being non-citizens because section 233C(2) expressly so provides. As Australian citizens have an entitlement to travel to Australia, this has no practical significance.
[6] By reason of ss 5.6(1) and 4.1(1)(a) of the Criminal Code, intention is the required fault element in respect of s 233C(1)(a) of the Migration Act: PJ v The Queen [2012] VSCA 146 at [45]-[53] and [87]-[88] per Maxwell P, Redlich and Hansen JJA.
[7] As defined by section 5.4 of the Criminal Code.
[8] By reason of ss 5.6(2) and 4.1(1)(c) of the Criminal Code, knowledge or recklessness is the requisite fault element in respect of s 233C(1)(c) of the Migration Act: PJ v The Queen [2012] VSCA 146 at [18]-[19] per Maxwell P, Redlich and Hansen JJA.
It is in contention whether there is effectively a sixth element of the offence (or more specifically an aspect of physical element one), namely that it be committed within Australia (which encompasses the territorial sea 12 nautical miles around Australian land).
Statutory history
Before 1999, Division 12 Subdivision A of Part 2 of the Migration Act contained several sections which created offences associated with the entry into Australia of persons having no entitlement to travel to Australia.[9]
[9] Ss 229, 230 and 232.
In 1999, the predecessor of section 233C was inserted into the Act. It was section 232A which provided:
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; and
(b)     does so knowing the people would become, upon entry into Australia, unlawful               non-citizens;
is guilty of an offence punishable, on conviction, by imprisonment for 20 years or 2,000     penalty units or both.[10]
[10] Inserted by Migration Legislation Amendment Act (No 1) 1999 (Cth) Schedule 1, item 5 effective from 22 July 1999.
Later in 1999, section 232A was amended[11] so that it provided:
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 five or more people to whom subsection 42(1)         applies;
(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 2,000     penalty units or both.[12]
[11] Amended by Border Protection Legislation Amendment Act 1999 (Cth) Schedule 1, items 50 and 51 effective from 16 December 1999.
[12] Inserted by Migration Legislation Amendment Act (No 1) 1999 (Cth) Schedule 1, item 5 effective from 22 July 1999.
At the same time, section 228A was inserted at the beginning of Subdivision A of Division 12.[13] It provided:
This Subdivision applies in and outside Australia.
[13] Inserted by Border Protection Legislation Amendment Act 1999 (Cth) Schedule 1, item 38 effective from 16 December 1999.
In 2001, the Criminal Code[14] was amended by the insertion of Part 2.7 – Geographical jurisdiction.[15] Sections 14 and 15 defined five alternative types of geographical jurisdiction for Commonwealth offences. Standard geographical jurisdiction became the default position (in the absence of express provision or a contrary intention appearing) in respect of future offences created by provisions enacted after 24 May 2001. The new regime under sections 14 and 15 had no application to pre-existing offence provisions (in the absence of express provision) such as section 232A of the Migration Act.
[14] Enacted by Criminal Code Act 1995 (Cth) s 3.
[15] Inserted by Criminal Code Amendment (Theft, Fraud, Bribery & Related Offences) Act 2000 (Cth) Schedule 1, item 12 effective from 24 May 2001.
Later in 2001, the Migration Act was amended by the insertion of section 4A which provides for Chapter 2 (except Part 2.5) of the Criminal Code to apply generally to all offences under the Migration Act.[16]
[16] Amended by Migration Legislation Amendment (Application of Criminal Code) Act 2001 (Cth) Schedule 1, item 1 effective from 19 September 2001.
In 2008, section 232A was amended[17] to insert a new subsection (2):
(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).
[17] Amended by Migration Legislation Amendment Act (No 1) 2008 (Cth) Schedule 3, Items 11 and 12 effective from 15 September 2008.
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.

Mr Zainudin makes a principal submission and a secondary submission as follows.
1.His principal submission is that section 233C applies to territorial conduct only, and hence the “organising” or “facilitating” must be done within 12 nautical miles of the coastline of Australian territory.
2.His secondary submission is that, even if the “organising” or “facilitating” may be done remotely, the concept of “bringing” or “coming” to Australia requires that the passengers’ journey must in fact reach Australia, ie they must be brought or come within the 12 nautical mile limit.
Sections 233A to 233C form part of Part 2 Division 12 Subdivision A of the Migration Act. Section 228A provides:
This Subdivision applies in and outside Australia.
Section 228A discloses a clear and express intention contrary to the prima facie position pursuant to section 14.1(1)(a) of the Criminal Code.
In addition, the evident purpose of sections 233A to 233C is to make it an offence to organise or facilitate the bringing to Australia of non-citizens without a lawful right to come to Australia. It is in accordance with that purpose that the sections apply to conduct which occurs outside Australia but which has a necessary connection with Australia. The first element of the offences is not the bringing or coming to Australia: it is the organising or facilitating of the bringing or coming to Australia.
Mr Zainudin puts three contentions in answer to the apparent effect of section 228A and the evident purpose of sections 233A to 233C. Mr Zainudin’s first contention is that section 4A of the Migration Act manifests an intention that section 14.1 of the Criminal Code apply to sections 223A to 233C. Section 4A provides:
Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against this Act.
Chapter 2 of the Criminal Code is entitled General principles of criminal responsibility. It includes Part 2.2 – The elements of an offence; Part 2.3 – Circumstances in which there is no criminal responsibility; Part 2.4 – Extensions of criminal responsibility; Part 2.6 – Proof of criminal responsibility and Part 2.7 – Geographical jurisdiction. The mere fact that section 4A of the Migration Act evinces a general intention to apply the various disparate provisions contained within Chapter 2 of the Criminal Code to the various disparate offences created by the Migration Act does not evince any specific intention to apply section 14.1 of the Code to sections 233A to 233C of the Migration Act. Section 4A of the Migration Act must be read together with section 228A of the Migration Act and must give way to the specific provisions section 228A makes for Subdivision A of Division 12.
Section 14.1(1)(b) of the Code provides that section 14.1 applies to a provision if a Commonwealth law provides that “this section applies to a particular offence”. Section 4A of the Migration Act does not provide that section 14.1 applies to the offences created by sections 233A to 233C. Sections 15.1, 15.2, 15.3 and 15.4 each provide for a different category of “Extended geographical jurisdiction” to apply if a Commonwealth law provides that the respective section applies to a particular offence. On Mr Zainudin’s argument, there is no reason why section 4A would not pick up each of the mutually inconsistent subsections of section 15 if it picks up section 14.1.
Mr Zainudin’s second contention is that the legislature expressly applied “extended geographical jurisdictions” to other Subdivisions and Parts of the Act in 2004 and 2007 and its omission to do so in respect of Division 12 Subdivision A manifests a legislative intention that “extended geographical jurisdiction” not apply. Section 245AJ (enacted in 2007) applied section 15.2 of the Criminal Code (extended geographical jurisdiction – category B) to offences contained in Division 12 Subdivision C. Section 336B (enacted in 2004) applied section 15.4 of the Criminal Code (extended geographical jurisdiction – category D) to offences against Part 4A. However, those provisions apply to Subdivisions and Parts other than Division 12 Subdivision A. Moreover, Division 12, Subdivision A has its own provision defining its geographical jurisdiction, namely section 228A.
Mr Zainudin’s third contention is that the application of sections 233A to 233C to conduct outside the Australian Contiguous Zone (24 nautical miles from land) would be contrary to article 33(1) of the United Nations Convention on the Law of the Sea. Mr Zainudin contends that article 33(1) of the Convention represents a fundamental right or principle and that legislation should be interpreted so as not to infringe that right unless the legislative intent is clear.[22] However, even if sections 233A to 233C were read down by reason of article 33, they would be no reason to read them down within the 24 nautical mile limit. As Mr Zainudin engaged in relevant conduct within the 24 nautical mile limit, that would make no difference in the present case. In any event, article 33 is expressed in positive terms to permit a State to exercise control within its contiguous zone to prevent infringement of its customs, fiscal, immigration and sanitary laws within its territory and contiguous zone. It does not prohibit the creation of an offence of people smuggling comprising the organisation or facilitation outside a State’s contiguous zone of the bringing of non-citizens without a lawful right to come to a State. Further the legislative intent expressed by section 228A is in any even clear.
[22] Lacey v Attorney-General of Queensland [2011] HCA 10; (2011) 242 CLR 573 at [20] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; Australian Crime Commission v Stoddart [2011] HCA 47; (2011) 244 CLR 554 at [182] per Crennan, Kiefel and Bell JJ.
Mr Zainudin’s secondary submission is that the concept “bringing” or “coming” to Australia requires that the passengers’ journey must in fact reach Australia. Dealing first with the language of 233C(1)(a), the verbs in that clause are “organises” and “facilitates”. The “bringing” or “coming” to Australia are not verbs but are the objects of the verbs “organises or facilitates”. In their ordinary meaning, the words include the approach to, or travel towards, in this case, Australia. A person might be “coming” or “being brought” to Australia without yet having reached, or ever reaching, Australia. Syntactically, there is no reason to read the clause, and in particular “organises or facilitates” the “bringing or coming to Australia”, as not being satisfied unless the passenger actually reaches Australia. As a matter of ordinary meaning, a person “organises or facilitates the bringing or coming to Australia of another person” without the second person necessarily reaching Australia. That construction gives the “bringing” or “coming” to Australia limb of section 233C(1)(a) an analogous operation to the “proposed entry” into the Migration Zone of Australia limb of that paragraph.
The mischief which section 233C addresses is not confined to those situations in which the passengers actually reach Australia. It applies equally to conduct engaged in for the purpose of those passengers entering Australia but where circumstances intervene resulting in their not actually reaching Australia. In the present case, the Australian Navy intervened approximately 3 nautical miles short of Australia. It appears to be the policy of the Australian Government to intervene outside coastal waters but within the contiguous zone (ie between 12 and 24 nautical miles from land). It is a notorious fact that, for reasons of safety and ensuring the timely interception of unlawful arrivals, the Australian Navy must from time to time intercept boats before they enter Australia’s territorial sea. On Mr Zainudin’s submission, a people smuggler could know of this policy and bring passengers to that point but not be guilty of the offence.
In R v Ahmad,[23] the defendant was charged with people smuggling contrary to the former section 232A. The Court of Criminal Appeal of the Supreme Court of the Northern Territory held that section 228A of the Migration Act manifested a contrary intention, thereby displacing the operation of section 14.1 of the Criminal Code to section 232A of the Migration Act. Southwood and Martin JJ said:
Section 232A of the Migration Act 1958 (Cth) has extraterritorial effect by virtue of s 228A of the Act. Section 232A of the Act is within Subdivision A of Division 12 of Part 2 of the Act and s 228A of the Act categorically states that “this subdivision applies in and outside Australia”. Contrary to the submissions of the respondent, the application of s 228A of the Act is not restricted by the provisions of s 4A of the Act and s 14.1 of the Criminal Code (Cth). Section 4A of the Act does not provide that s 14.1 of the Code applies to s 232A of the Act. The purpose of s 4A of the Act is to apply the general principles of criminal responsibility enunciated in the Code to the offences created by the Act, while s 14.1(1)(a) of the Code makes it clear that the territorial limitations imposed by s 14.1 of the Code only apply “unless the contrary intention appears”. A contrary intention appears by the express terms of s 228A of the Act. The specific provisions of s 228A of the Act prevail over the general provisions of s 14.1 of the Code.[24]
[23] [2012] NTCCA 1; (2012) 31 NTLR 38.
[24] [2012] NTCCA 1 at [41]. Mildren J at [19]-[22] reached the same conclusion for similar reasons.
In R v Mahendra,[25] the defendant was charged with aggravated people smuggling contrary to section 233C of the Migration Act. A fishing vessel carrying passengers and on which the defendant was working was intercepted by Australian Customs outside Australian coastal waters. Blokland J held that section 233C has extraterritorial operation.[26] The Court of Criminal Appeal dismissed the defendant’s appeal against his conviction. The Court of Criminal Appeal gave short reasons for the dismissal, namely that the reasoning in R v Ahmad in relation to former section 232A was directly applicable to section 233C.[27]
[25] [2011] NTSC 57.
[26] [2011] NTSC 57 at [10]-[14].
[27] R v Mahendra (Unreported, Supreme Court of the Northern Territory Mildren ACJ, Southwood J and Kelly J, 4 June 2012).
Mr Zainudin contends that the reasoning adopted by the Court in Ahmad was unnecessary because section 232A had been enacted before 24 May 2001 and hence was not subject to the prima facie application of section 14.1(1)(a) of the Criminal Code. If the enactment of section 232A prior to 2001 was an alternative reason available to the Court to have held that section 14.1(1)(a) did not apply, that does not detract from the Court’s actual reason for its conclusion. In any event, the Court of Criminal Appeal in Mahendra expressly applied the reasoning in Ahmad to section 233C.
This Court should follow a decision of another intermediate court on the construction of Commonwealth legislation unless the earlier decision was plainly wrong.[28] Mr Zainudin contends that the decisions of the Court of Criminal Appeal of the Northern Territory Supreme Court were plainly wrong. For the reasons set out above, I agree with the reasoning of that Court.
[28] Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 at 492 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ; Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 222; (2007) 230 CLR 89 at [135] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
Accordingly, the first ground of appeal fails.
Case to answer: knowledge and intention
It is common ground on appeal that, in order to prove the first fault element identified at [23(a)] above, the prosecution must prove that a defendant knew that the intended destination of the five persons was Australia, not merely that the defendant knew the destination and that destination happened to be Australia as a matter of law.[29]
[29] PJ v The Queen [2012] VSCA 146 at [45]-[76] per Maxwell P, Redlich and Hansen JJA.
Direct and circumstantial evidence
The prosecution case at trial was not that Mr Zainudin knew that the island which the boat was approaching was part of Australia. Rather, the prosecution case was that Mr Zainudin knew in a more general sense that the destination of the passengers (not necessarily the boat) was Australia and that by piloting and crewing on the boat he was assisting at least one stage of their conveyance to Australia.
The prosecution did not adduce any direct evidence at trial relevant to Mr Zainudin’s knowledge, beliefs and culture. It did not adduce any evidence of the knowledge or beliefs of the local people of his village or port concerning people smuggling, Christmas Island, Australia, geography or otherwise. It did not adduce any evidence concerning the culture of the local people indentifying their curiosity, their deference to authority or otherwise. The prosecution’s case as to Mr Zainudin’s state of mind was entirely circumstantial.
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”.
Mr Abodah and Mr Al Yasir travelled in the below deck section of the boat immediately forward of the cabin. They were both Iraqi and spoke Arabic. They gave their evidence through an Arabic interpreter. They did not speak Indonesian. They did not have any conversation with the Indonesian crew. They did not observe the crew having any conversation with any passengers.
Mr Abodah gave evidence that, on the second day, one of the three Indonesian crew members jumped off the boat and swam to a second boat. At that point, the other two Indonesian crew members were inside the cabin. Mr Abodah said that, at the point at which the crew member jumped to the second boat:
He told them “you now arrived Australia”.
Mr Abodah did not say that he himself heard this, as opposed to being told it by the other passengers. Mr Abodah did not say in what language the statement was made. Mr Abodah did not say that it was said within earshot of the remaining two Indonesian crewmen. It would have been an odd statement for the Indonesian captain to have made given the boat was nowhere near land and more than 130 kilometres from Christmas Island at that point. It may in fact have been inferred by his fellow passengers, just as Mr Ghanbari inferred that they were now in free waters.
Mr Hossein Mardi travelled at the very front of the boat. He remained at the front of the boat throughout the journey, except for a toilet break in the vicinity of the side of the cabin. He was Iranian. He spoke Persian and a little bit of English. He gave his evidence through a Persian interpreter. He did not speak or understand Indonesian. He gave evidence that most of the passengers on the boat were speaking Persian. A few passengers were speaking Arabic or Turkish. He had been previously told by the Iranian people smugglers that he would be taken to Christmas Island which was part of Australia. He would have to present a case there for a visa.
Mr Hossein Mardi gave evidence that he did not talk with the crew and he did not know the language to speak with them. He did not hear the crew have any discussion with the other passengers because they could not understand each other’s language. The crew members were usually in the cabin, apart from resting or sleeping on the top of the cabin. He saw the passengers and crew attempting to communicate with each other using hand signals, with the passengers attempting to ask questions such as “are we going to get there?” and “when will we get there?”. He did not identify any signalled response by the crew members to the passengers. Mr Hossein Mardi could not identify with which crew member the passengers attempted to communicate by signals.
Mr Hossein Mardi gave evidence that he heard the passengers asking each other questions such as “when are we going to get to Australia?” and “where is Christmas?”. On his evidence those discussions must have been in Persian. Mr Hossein Mardi said that “the crew were around” when the passengers were asking each other such questions. He did not identify what he meant by “the crew”, nor what he meant by “around”. He did not give evidence that the crew were within earshot when such questions were being asked. He did not recall seeing any of the crew in the vicinity of the passengers when the passengers were talking amongst themselves about Australia. There was no suggestion in his evidence that the crew understood or were capable of understanding Persian. On the contrary, his evidence was that the crew could not understand Persian. Mr Hossein Mardi did not give evidence as to what is the Persian word for “Australia”. No evidence was adduced in the case as to the word for “Australia” in the various languages used on the boat, namely Persian, Arabic, Turkish or Indonesian.

Mr Hossein Mardi gave evidence that, at one stage, one of the three Indonesian crew members (being the one who subsequently jumped off the boat) repaired a hole in the deck of the boat next to where he was standing. Mr Hossein Mardi asked him, in English, “is there any problem?” and the crewman replied “no, no problem”. Mr Hossein Mardi did not suggest that the other two crew members were within earshot of that conversation and, on his general evidence, they were in the cabin at the time. This was the only evidence he gave of English being spoken on the boat. Mr Hossein Mardi did not hear any of the passengers on the boat speak English.
Mr Hossein Mardi said that, on the second day, one of the three Indonesian crew members jumped off the boat and swam to the second boat, which then turned away. At that point, the other two Indonesian crew members were in the cabin. When asked whether the crewman who got off the boat spoke to the passengers before doing so, Mr Hossein Mardi said that he did not know. At that point, the Iranians were saying that they were in free waters. This is consistent with the evidence of Mr Ghanbari referred to above.
The evidence given by the five passenger witnesses was that it was noisy on the boat. There was the sound of the wind and waves and engine. There were also conversations between the passengers.
Considering the evidence of the five passenger witnesses collectively, there was no evidence adduced that any of the three Indonesian crew members (and particularly Mr Zainudin) either heard or understood any conversation on the boat about Australia, Christmas Island or the destination of the passengers.
The prosecution case
In her no case to answer submissions, the prosecutor identified the following circumstances as being capable of giving rise to an inference by the jury that Mr Zainudin and Mr Slamet knew that the ultimate destination of the passengers was Australia:
1.the boat sailed from Indonesia to Christmas Island over two and a half days and it was a purposeful journey with a specific destination as opposed to an aimless cruise, the crew using a compass and a GPS for navigation;
2.Christmas Island is 200 nautical miles south of the Indonesian mainland [Java] and south of Indonesian there are no other islands apart from Australia;
3.the evidence of Mr Hossein Mardi that the passengers were asking questions such as “when are we going to get to Australia?” and “where is Christmas?”;
4.the evidence of Mr Abodah that the Indonesian captain who jumped overboard said “you now arrived Australia”;
5.the inherent likelihood, as a matter of human nature, that the three Indonesian crewmen would have discussed amongst themselves what was their destination and that the captain would have informed the other two crew members that their destination was Australia.
In his ruling on the case to answer, the trial Judge summarised these five points and concluded as follows:
I find that the evidence adduced by the Crown is sufficient, as a matter of law, from which the jury might infer that each accused knew that the passengers’ journey was Australia, and that they intended to facilitate them arriving at the destination, if not immediately, then ultimately. I find that there is a case to answer. I reject the submission to the contrary.
On appeal, the prosecution identifies the same items of circumstantial evidence from which it is contended that a jury could infer that Mr Zainudin knew that the passengers’ ultimate destination was Australia.
On appeal, the prosecution also refers to the circumstance of the after-midnight departure and poor condition of the boat, the poor and crowded conditions onboard for the passengers and the fact that the passengers were manifestly from the Middle East as being inconsistent with the voyage being a pleasure cruise or holiday and being indicative of people smuggling. The no case submission was not put on the basis that there was no case to answer on the issue of the intention of the defendants to engage in people smuggling. It was confined to the defendants’ knowledge that the destination of the people smuggling operation was Australia. In the no case submissions, and in the trial Judge’s ruling, no reference was made to the issue of people smuggling as opposed to the intended destination.
I first consider separately the five matters relied on by the prosecution for the necessary inference.
1.The first circumstantial fact is itself a matter of inference, but it is an inference which was open and indeed likely to be drawn by the jury. The jury was entitled to infer that Mr Zainudin intentionally steered the boat in a general south westerly direction towards an island which was generally south and west of Java. However, there was no basis to infer merely from the purposeful nature of the journey that Mr Zainudin knew that the island was called “Christmas Island” or that it was part of Australia.
The purposeful nature of the journey coupled with the fact that Mr Zainudin was a fisherman and the circumstances of the journey were capable of giving rise to the inference that Mr Zainudin knew that the boat was engaged in a people smuggling enterprise. However, as observed above, that was not the issue the subject of the no case to answer submission.
2.The fact that Christmas Island is situated approximately 200 nautical miles from Indonesia needs to be considered in context.
(a)By contrast, Christmas Island is approximately 700 nautical miles from the nearest point of the Australian mainland. It is much closer to Java than it is to Australia.
(b)Assuming that Mr Zainudin had a general knowledge of the geography of Java vis a vis Australia, Christmas Island is situated south west of Java, whereas the Australian mainland is situated south east of Java. A person having a general geographical knowledge to that effect (without knowing to which country Christmas Island belonged) would not naturally assume that Christmas Island is an Australian territory as opposed to an Indonesian territory or the territory of some other nation.
(c)There was no basis to find that it was general knowledge amongst Australians that the island in the position of Christmas Island is named Christmas Island or that it is part of Australia.
(d)Even if it were general knowledge in Australia that the island located in that position is Christmas Island and is part of Australia, there was no basis to attribute to a person in the position of Mr Zainudin general knowledge of Australians. As an example of the risk of taking an Australia-centric view, it was an agreed fact at trial that Indonesia comprises approximately 17,508 islands. An Indonesian knowing generally that Indonesia is comprised of thousands of islands might well take an Indonesia-centric view and expect that there would be many Indonesian islands south of Java or that there would be many islands south of Java belonging to various different countries.
The fact that objectively there are no islands or land masses south of Java other than Australia is a circumstantial fact. Again it needs to be considered in context.
(a)As an objective fact, it needs to be qualified. If one proceeds due south from the western half of Java, one would not reach Australia and would not reach land until Antarctica. Conversely, if one proceeds generally southerly of Java (as opposed to northerly), New Zealand is also south of Java.
(b)The boat was not proceeding south from Java but was proceeding south west. There was no basis to find that it was general knowledge amongst Australians that the only islands lying generally south west of Java were territories of Australia.
(c)There was no basis to attribute to a person in the position of Mr Zainudin the general knowledge of Australians.
3.The evidence by Mr Hossein Mardi is addressed in detail above. It was incapable of justifying a finding by the jury that Mr Zainudin heard or understood any reference by the passengers to “Australia” or “Christmas Island”.
4.The evidence by Mr Abodah is addressed in detail above. It was incapable of justifying a finding by the jury that Mr Zainudin heard or understood the captain say “you now arrived Australia”.
5.The suggestion that Mr Zainudin enquired of the Indonesian captain as to the destination or ultimate destination of the passengers and was told in response that it was Australia rises no higher than speculation. Assuming it would have been human nature for Mr Zainudin to wonder about the ultimate destination, no evidence was adduced about the culture of fishermen from Mr Zainudin’s village or port as to whether they would voice an inquiry to the captain. In any event, there was no basis to infer that it was likely that Mr Zainudin would have been told on inquiry that the passengers’ destination was Australia. On the prosecution’s own case, the Indonesian captain departed the boat to avoid apprehension. The people smugglers and the Indonesian captain had no self interested reason to inform the remaining crew members of the destination or facts from which they might learn of their likely apprehension and hence desist from continuing the voyage.
Considered collectively, the five matters relied upon by the prosecution raise only a suspicion that Mr Zainudin knew that the passengers’ ultimate destination was Australia. It is mere speculation that Mr Zainudin knew this. The five matters are incapable of excluding the possibility that Mr Zainudin was and remained ignorant of the ultimate destination. They do not allow an inference of knowledge to be drawn beyond reasonable doubt.
In R v Razak,[32] Mr Razak was one of four Indonesian crew members crewing a wooden fishing vessel containing 35 passengers of Iranian, Afghani and Burmese nationalities. The vessel travelled approximately 700 nautical miles southeast of Surabaya, which is situated on the coast of Java. The vessel reached the contiguous zone around Ashmore Reef, which is a small uninhabited group of islands approximately 200 nautical miles northwest of the Kimberley coast of Western Australia. Ashmore Reef is directly in line if one were to proceed southeast from Surabaya towards the Kimberley coast of Australia.
[32] [2012] QCA 244.
Mr Razak was convicted by a jury of people smuggling contrary to section 232A of the Migration Act. He appealed against his conviction on the ground that the verdict was unreasonable or could not be supported having regard to the evidence. Mr Razak contended that the prosecution had not excluded beyond reasonable doubt an alternative hypothesis that he was involved in the clandestine movement of the passengers within Indonesia with no intended destination of Australia.
Fraser JA (Muir JA and Gotterson JA agreeing) concluded that the inference was available to the jury to draw beyond reasonable doubt that this hypothesis had been excluded and that Mr Razak knew that the intended destination was Australia. A number of the circumstances were similar to the present, including the nature and size of the boat, the departure part way through the journey of the captain and the language barrier between passengers and crew. However, there was a vital difference in that the voyage proceeded directly towards the Australian mainland and proceeded more than 70 per cent of the distance from the point of departure in Java to the Australian mainland. These were important factors relied upon by the Queensland Court of Criminal Appeal, as is evident from the following passage from the judgment of Fraser JA:
The thesis advanced by the appellant that the vessel might have been sailing to another place within Indonesia makes little sense in light of the evidence of the passengers’ uniform belief that they were being taken to Australia and the evidence that they were in fact brought over a great distance to within the vicinity of Australia near the remote and deserted Ashmore Island.[33]
(Emphasis added)
[33] [2012] QCA 244 at [17].
It is common ground on appeal that, if the trial judge erred in concluding that there was a case to answer, Mr Zainudin is entitled to be acquitted and the evidence adduced in the defence case cannot be considered to assess whether it cured the deficiency.[34] Accordingly, it is unnecessary to consider Mr Zainudin’s alternative ground of appeal that the verdict was unreasonable or cannot be supported having regard to the evidence.[35]
[34] R v Johnson (1979) 22 SASR 161 at 182-183 per Mitchell J and Williams AJ (Jacobs J agreeing); R v Liddy [2002] SASC 19; (2002) 81 SASR 22 at [295] per Mulligan J (Gray J agreeing) and [527]-[534] per Williams J.
[35] Criminal Law Consolidation Act 1935 (SA) s 353(1).
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.