Razak v The Queen

[2013] HCATrans 20

[2013] HCATrans 020

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane   No B55 of 2012

B e t w e e n -

RIAN ABDUL RAZAK

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 15 FEBRUARY 2013, AT 10.38 AM

Copyright in the High Court of Australia

MR J.J. ALLEN:   If the Court pleases, I appear with my learned friend, MS L.D. REECE, for the applicant.  (instructed by Legal Aid Queensland)

MS W.J. ABRAHAM, QC:   May it please the Court, I appear with my learned friend, MR J.N. HANNA, for the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

FRENCH CJ:   Thank you.  Yes, Mr Allen.

MR ALLEN:   Your Honour, the Commonwealth chooses in which State or Territory of Australia alleged people smugglers will be tried.  In those circumstances, public confidence in the administration of justice requires this Court’s attention to significant divergence of approach between State Courts of Appeal as to the proof of guilt in such matters.  The judgment in Razak stands alone somewhat uncomfortably, apart from the subsequent judgments of the Queensland Court of Appeal in Zolmin, the South Australian Full Court in Zainudin and the New South Wales Court of Criminal Appeal in Alomalu; uncomfortably, but it still stands.

That is a matter of significance, not only for Mr Razak and his continued incarceration, but also to the administration of justice generally, because although those subsequent judgments take a significantly different and, it is submitted, preferable approach than the court in Razak, Razak has not been overruled or even specifically disapproved in those decisions.  In Zolmin ‑ ‑ ‑

FRENCH CJ:   It does seem that they depend somewhat upon both the content of the evidence at trial and the approach to the assessment of factual matters arising out of that evidence.  You are suggesting ‑ ‑ ‑

MR ALLEN:   In my submission, the matter cannot be distinguished on that basis and the injustice alleged by the applicant cannot be dismissed on that basis.  The reasons being, and perhaps I will go to that now, in Razak we had a situation of a five to seven day voyage from Surabaya, as Justice Fraser noted over something estimated to be 1200 kilometres to the vicinity of Ashmore Island.  In Zolmin there was a four to seven day voyage.  The route is unclear from the judgment, but the boat ends up 180 nautical miles north‑west of Darwin and the same distance from Indonesia in the Timor Sea.

In Zainudin there is a three day voyage to near Christmas Island, some 200 nautical miles south of Java and some 900 nautical miles north‑west of the Kimberley coast.  In Alomalu the difference between it and Razak are hard to discern at all.  As in Razak, it was an approximately six day voyage from Surabaya to the vicinity of Ashmore Reef.

CRENNAN J:   Well, this looks perilously close to a complaint from you about the way in which the facts were dealt with.  Is it really fruitful to compare a constellation of facts in one case involving circumstantial evidence and a differing constellation in another case?  Does that help in terms of the application of principle?

MR ALLEN:   Well, it helps with respect at least to the interests of justice of the particular applicant because when one makes that comparison it is not an exercise in hyperbole to say that if Mr Razak’s appeal had been heard by any of the courts constituting the appellate courts in the matters of Zolmin, Zainudin or Alomalu, that his appeal would have been allowed and his conviction set aside and a verdict of acquittal entered.  Because when one looks at the difference in approach between the court in Razak and the courts in the other judgments, they differ on a matter of principle, it is submitted.

In particular in Razak, Justice Fraser with whom the other members of the court agreed, treated as significant the fact that all the passengers knew that they were going to Australia.  He cited that passage from the Western Australian decision of Fonseka about the bus to Claremont.  Fonseka, of course, was a situation where the appellant was Sri Lankan, as were all the other occupants of the boat.

Notwithstanding the fact that the evidence in Razak was that there was no suggestion that he could communicate with his Kurdish speaking passengers, this man who had nothing to do with the navigation of the boat but simply boiled up noodles and made tea, Justice Fraser treated the fact that the passengers knew they were going to Australia as somehow being about to ground an inference to the requisite standard that the applicant would have known that.

Now, that same argument was advanced before the Queensland Court of Appeal in Zolmin and the President there said that given the language differences, the fact that the passengers knew they were going to Australia added nothing, and I emphasise nothing, or proved nothing with respect to the appellant’s knowledge in that case.

CRENNAN J:   To be fair to Justice Fraser, looking at the application book 63 and 64 and at paragraph [16] he sets out the circumstances which the respondent suggested might be relied upon.  At (vi) and (vii), his Honour there speaks about a “juror’s everyday experience” about accepting a point “in the absence of any reason to think otherwise”.  Then at the end:

There was no evidence to cause a juror to doubt his/her natural inclination of the mind to accept that proposition.

Then in paragraph [17], his Honour does not simply fasten on one circumstance.  Fairly read, his Honour as he puts it goes through a variety of circumstances.  So it is not appropriate or helpful I think to select one of a variety of circumstances and say that particular circumstance was dealt differently when it combined with another set of circumstances.

MR ALLEN:   Yes, but there is two particular circumstances relied upon by Justice Fraser which have been categorically rejected as properly basing the inference in the other cases.  The first one is the passenger’s knowledge, and that has been considered in the other cases to not reasonably grant such an inference.  The second one is, as your Honour has pointed out, what Justice Fraser refers to in paragraph [17], and that is that someone in the crew, perhaps the master, would have known the destination, and therefore natural human curiosity would have led the appellant to inquire about the vessel’s destination if that was not volunteered to him.

Now, that in fact is, by way of principle, incorrect it is submitted.  If one compares it to the approach of the Queensland Court of Appeal in Zolmin at paragraph [56] of the judgment of the President there is a description there of Zolmin’s role, which was very similar to Razak at the lowest level of the hierarchy.  They point out that:

Whilst it is improbable that even junior Australian crew members would not know the destination of a voyage they were undertaking, there was no evidence of the standard practice amongst crews of Indonesian fishing vessels.  It was reasonably possible that Zolmin simply carried out instructions . . . without knowing the intended destination –

and quite reasonably pointed out that if the master –

was intending to bring the passengers to Australia illegally, he may have considered it prudent –

to keep that knowledge away from Zolmin.  So, it is really speculation and nothing more than speculation to infer, as Justice Fraser does, that well, if the captain of the crew knows where the boat is going, firstly, natural human curiosity would cause someone in Razak’s position to ask, but then, secondly, there would be a reply, and thirdly, that would be an honest reply.  That sort of reasoning has been categorically rejected in the subsequent cases to which I have already referred and there is no proper basis, it is submitted, to factually distinguish them from the case of Razak.

FRENCH CJ:   The knowledge of the passengers cannot be taken in isolate, can it, from the purpose of the voyage and obviously the passengers do not come on as a group who are the only source of information about destination.  It is like the approach to analysis in circumstantial evidence; generally one is looking at strands of a rope rather than links in a chain or discrete elements of evidence.

MR ALLEN:   That is so, but two of the strands used by Justice Fraser to determine that the rope held the weight of proof beyond reasonable doubt are ones which should have formed strands of that rope and which have in subsequent cases been regarded as matters which did not support the Crown case.

FRENCH CJ:   At what point incidentally is the offence committed and the state of mind of the applicant relevant?

MR ALLEN:   It is throughout the whole voyage, it is submitted, your Honour.  There would not be a requirement, for example, that the vessel reach Australian territorial waters for the offence to crystallise, and indeed, the offence was expressed as being one which was committed in the indictment between certain dates, between 6 and 11 April 2010.

FRENCH CJ:   I notice that you said the applicant, at page 82 of the application book, in paragraph 23 of your submissions, that the applicant – well, you are putting it as a hypothesis I think:

the applicant did not become aware that the vessel’s destination was Australia until a time after he had ceased any conduct that facilitated the coming to Australia of the passengers.

MR ALLEN:   The respondent points out that that was not a particular argument which was advanced on appeal below ‑ ‑ ‑

FRENCH CJ:   Not put below, yes.

MR ALLEN:   ‑ ‑ ‑but, of course, the obligation of the court below in accordance with SKA v The Queen was to make their own independent analysis of the evidence.  It is not a point which is strongly pressed.  It is submitted that the evidence was not such that the only inference that could ultimately be drawn was that the applicant had knowledge of the destination as being the nation of Australia.  There are no relevant dissimilarities, it is submitted, with respect to the other cases.  As I said before, Razak at this time, albeit uncomfortably, stands apart, but it still stands because in Zolmin, the Queensland Court of Appeal simply disregarded it, said that it was not necessary to consider it.

In Zainudin, there was an attempt to distinguish it, and it is submitted on a very unconvincing basis.  In Zainudin, the court pointed out the difference between a vessel which was located near Ashmore Island and a vehicle which was headed for and located near Christmas Island because of the difference in geography.  But insofar as achieving the purpose of a voyage, it matters not because both of those locations are part of our Australian territories, and arrival at either of those locations has the same effect.

So whereas the court in Zainudin at paragraph 84 described it as a “vital difference” in those geographical factors, it submitted that that is not really a difference which amounts to a distinction at all.  Of course, there was no relevant distinction in the geography of the voyage in the New South Wales matter of Alomalu.  The only distinction at all in that case was that there was some positive evidence from the appellant at trial that he was not aware of the destination.

CRENNAN J:   Am I right here; the applicant did not give evidence and did not call evidence?

MR ALLEN:   That is so, and that was also the situation in Zolmin and Zainudin.  Given the onus of proof, that again is not a relevant distinction, it is submitted, when the court was undertaking its task of considering whether the only reasonable inference available was that the applicant was aware that the destination was the nation of Australia.  Alomalu contains no consideration of either Razak or the previous matters.

Just briefly, it is suggested in the respondent’s outline at paragraph 24 that “There are no relevant dissimilarities” between this matter and Fonseka.  The obvious dissimilarity, of course, is that in Fonseka he shared the common language with the passengers.  The points made in paragraph 11 of the respondent’s outline that the argument in this application is directed only towards the element concerning the knowledge of the applicant as to the destination of the vessel, and not ‑ ‑ ‑

FRENCH CJ:   This is the facilitating the bringing.

MR ALLEN:   Yes, that is so, which carries with it the mental element of knowing the destination was Australia.  That has been established in PJ and Zainudin.  Although subsequent to Razak, that was the question which had to be asked in Razak, though not simply that the applicant knew that he was going to a place which happened to be part of Australia, but that the applicant knew that the destination was in fact the nation of Australia.

So the points made by the respondent that no argument is made about the fourth element, which was that the applicant was reckless as to

whether the passengers had a lawful right to come to Australia, that is true, it is the element as to knowledge of the destination which is attacked, but it would follow, as night follows day, that if that element was not made out likewise that fourth element would not be made out.

FRENCH CJ:   Well, it does not matter, if one element fails, the whole thing falls.

MR ALLEN:   Well, that is right.  So, there is certainly no concession that the evidence was sufficient to establish that fourth element; it is just that attention is directed towards this element of knowledge of the destination.  Those are my submissions, your Honours.

FRENCH CJ:   Yes, thank you very much.  Yes, Ms Abraham.

MS ABRAHAM:   Your Honours, in our submission, the judgment in the Court of Appeal in Queensland in Razak is clearly correct.  It was determining whether on the facts of this particular case the verdict was unsafe or unreasonable.  In my submission, as the court in Alif, which is the case referred to by my friend in Zolmin, it is Alif, Amin and Zolmin, as the court in Alif observed, quite correctly, there is little utility in comparing the factual situations between cases when one is dealing with an unsafe argument because on an unsafe argument the court is required to conduct a particular task in relation to the evidence in a particular case.

What my friend says here is, hold on a second, there are two aspects that in later cases the courts decline to draw the inference that this Court in fact did in Razak.  Underlying the argument of my friend, as is apparent from his written submissions, is the concept that because the offence or alleged offence is outside the everyday purview of a juror that in some way one needs some special evidence about that to draw the inferences that the court in Queensland did and, in my submission, that is plainly incorrect.

Juries in every trial no doubt are dealing with circumstances outside their everyday experience; nonetheless, they decide the issues, regardless of the witnesses’ or accused’s background, culture, education and the like.  So there is nothing about this particular case that elevates that, with respect.  We acknowledge that since Razak there have been decisions of other courts, Zainudin in the South Australian court, Alomalu the New South Wales court and Alif, Amin and Zolmin in Queensland.  Noteworthy in Zolmin is that the convictions were upheld in relation to Alif and Amin, the first of the two accused, and so the points my friend makes about Zolmin, in my submission, need to be borne in that context.

FRENCH CJ:   This case was conducted, is it right to say, on the common premise that the facilitating was something which on the Crown’s case continued throughout the voyage?

MS ABRAHAM:   Yes.

FRENCH CJ:   Yes.

MS ABRAHAM:   Yes, we do, and in answer to your Honour Justice French’s question earlier, the mental state has to occur at the time of facilitating.  So, for example, if for some reason one was doing something and did not know that they had the intention to come to Australia then, of course, that facilitation would not be sufficient, but if at some stage in the voyage they did become aware and continued to facilitate, that would be sufficient to establish ‑ ‑ ‑

FRENCH CJ:   What would he have to do, stop cooking, I suppose?

MS ABRAHAM:   Your Honour, yes.

FRENCH CJ:   He is not driving the boat.

MS ABRAHAM:   No, he is not.  We accept in this instance he is not driving the boat.  Your Honours, so as we said, there is little utility in comparing the various cases.  We have acknowledged that the other cases do exist clearly and we have accepted in our written submissions, our written supplementary submissions, that if it is suggested from Zainudin, for example, that to establish this offence the Crown is required to call evidence of an accused’s education or cultural background, or of that of his village or port are the words in Zainudin, then leaving aside how one does that and the question of admissibility of that evidence, we just say that is wrong.  So if that is said to be what is drawn from Zainudin we say the decision is wrong in that respect and, indeed, we say it is wrong in other respects.

Where it is suggested in Zolmin about such evidence, again, we challenge that as a correct statement of principle.  These cases are no different from any other case where one is drawing inferences from the circumstances of the offence.  What the court did in Razak, quite properly, is not look at one circumstance or two circumstances, they looked at all the circumstances, the combination of circumstances, and that is what the conclusion was based on.  It is not the one sentence my friend refers to, if he had not been told before in the voyage, he would have inquired.

That was not the only circumstance, although I might add there is absolutely nothing wrong with that statement because, in my submission, it

is a matter of commonsense and there needs to be no evidence whatsoever to give rise to that inference if there is the evidence that they were communicating, communicating the same language and the like.

So, in our submission, the decision of the Queensland court in Razak is clearly correct on its facts and its reasoning process.  Then if it is suggested that there is any different reasoning process that would require the Crown to prove an additional matter, namely the culture of the particular accused, peculiar to people smuggling cases for some reason, as opposed to every other sort of case then we say that is plainly incorrect.  Those are my submissions.

FRENCH CJ:   Thank you.  Yes, Mr Allen.

MR ALLEN:   Nothing in reply, thank you, your Honours.

FRENCH CJ:  The applicant seeks special leave to appeal from a decision of the Court of Appeal of Queensland dismissing his appeal against conviction in the District Court at Brisbane for facilitating the bringing of a group of non‑citizens without valid visas into Australia contrary to section 230A(1) of the Migration Act 1958. The indictment was treated on both sides as alleging a continuing offence of facilitation.

The applicant submitted in the Court of Appeal that the verdict of the jury was unreasonable and could not be supported, having regard to the evidence.  The argument went principally to the adequacy of the evidence to support proof beyond reasonable doubt that the applicant had the necessary element of an intention to facilitate the bringing of the people to Australia, an intention which he contended required proof of his knowledge that Australia was the intended destination.  The evidence was circumstantial, but the Court of Appeal found that it was sufficiently cogent to allow the jury to conclude beyond reasonable doubt that the applicant had the requisite intention. 

The reasoning of the Court of Appeal in our opinion does not disclose any error of principle or otherwise which would warrant the grant of special leave.  Special leave is refused.

AT 11.05 AM THE MATTER WAS CONCLUDED