The Queen v Ahmad

Case [2011] NTSC 71

The Queen v Ahmad [2011] NTSC 71

PARTIES:   The Queen

v

AHMAD, Ahmad

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:   SUPREME COURT OF THE TERRITORY EXERCISING CRIMINAL JURISDICTION

FILE NO:   21042169

DELIVERED:   22 September 2011

HEARING DATES:   19 and 20 September 2011

RULING OF:   BLOKLAND J

CATCHWORDS:

CRIMINAL LAW – MIGRATION ACT (CW) – question of law – were the 49 passengers persons to whom subsection 42(1) applied – question is directed to construction of s232A Migration Act – does the inclusions of s 42(1) within s232A create a requirement ‘travel to Australia’ that the Crown must prove – what is travel to Australia for the purpose of s 42(1) – s 42(1) as it applies to s 232A requires proof that the subject persons travel to Australia – there is a requirement that they cross the outer boundary of Australia’s Territorial Sea – Crown will be unable to prove an offence against s 232A in this case.

Can the acts of facilitation committed outside of the Australian Contiguous zone constitute the offence under s 232A (1) – would application of the Migration Act beyond the contiguous zone breach international law – would criminalising the acts of facilitation beyond the contiguous zone breach international law – construction of s 232A (1) does allow general and wide spread extra-territorial reach in terms of acts of facilitation – by their nature ‘facilitating’ and ‘organising’ are likely to occur outside of Australia – acts of facilitation need not be shown to be within the territorial sea.

Do people seeking asylum from prosecution have a lawful right to come to Australia – not necessary to answer this question for the purpose of this trial.

Migration Act (CW) s 5, s 42(1), s 228A, s 232A, s 232A(1), s 245A, s 245B, s 245C

Acts Interpretation Act (CW) 15B(1)(4)

Evidence Act (NT) s 26L,

Seas and Submerged Lands Act (CW) s 7, s 10A, s 13A,

Crimes Act (CW) s 50BA, s 50BC

Tran v The Commonwealth (2010) 187 FCR 54; applied

Barcelo v Electrolytic Zinc Co of Australasia Ltd (1932) 48 CLR 391; Bloxam v Favre (1883) 8 P.D. 101; XYZ v The Commonwealth (2006) 227 CLR 532; Zachariassen v The Commonwealth (1917) 24 CLR 166;
followed

Director of Public Prosecutions (NT) v WJI (2004) 219 CLR 43; R v LK (2010) 241 CLR 177; Nguyen v R [2005] WASCA 22; considered

Joyce v DPP [1946] AC 347; Minister of Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1; Payara v The Queen, Ruling of 12 September 2011; Rutu v Dalla Costa (1997) 139 FLR 265; referred to

“Problems of Jurisdiction and Law Enforcement Against Delinquent Vessels” (1986) 3 ICLQ 320, Professor Ivan Shearer,

REPRESENTATION:

Counsel:

Defendant:   Alistair Wyvill SC, Professor Les McCrimmon, Ian Read

Respondent:   Mr Batten

Solicitors:

Defendant:   Northern Territory Legal Aid Commission

Respondent:   Commonwealth Director of Public Prosecutions

Judgment category classification:    B

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AGLC
The Queen v Ahmad [2011] NTSC 71
Case
[2011] NTSC 71
Decision Date

CaseChat Overview and Summary

In the case of The Queen v Ahmad, the appellant was charged with facilitating the arrival in Australia of 49 non-citizens without a visa, in contravention of s 232A of the Migration Act 1958 (Cth). The key issues before the court were whether the Crown was required to prove the non-citizens "travelled to Australia" under s 42(1) of the Migration Act, and whether the acts of facilitation committed outside of the Australian Contiguous Zone could constitute an offence under s 232A(1). The facts revealed that the appellant was on a boat in Indonesia, with 49 non-citizens, and began a journey towards Australia. However, the boat was intercepted by Australian Customs Officers within the Australian Exclusive Economic Zone, outside of Australia’s territorial sea and contiguous zone.

The court held that the Crown must prove the non-citizens "travelled to Australia" under s 42(1) of the Migration Act, as it was expressly incorporated into s 232A. The court also found that s 232A has extra-territorial reach and is capable of applying beyond the territorial sea and the contiguous zone. However, given the conclusion on the first issue, the court declined to answer whether acts of facilitation committed outside of the Australian Contiguous Zone could constitute an offence under s 232A(1). The court found that the group of "five or more people" were not people to whom s 42(1) Migration Act applied within s 232A Migration Act.

In conclusion, the court ruled that the Crown must prove the non-citizens "travelled to Australia" under s 42(1) of the Migration Act, and that s 232A has extra-territorial reach and is capable of applying beyond the territorial sea and the contiguous zone. The appellant's appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

Both parties initially indicated the pre-trial matters may need to be referred to the Full Court. One of the issues could have had implications for other cases. I initially favoured this course, alternatively, it seemed appropriate to abide the answers to questions of law reserved to the Victorian Court of Appeal by Chief Judge Rozenes.[1] Both parties now seek to have the matters resolved without reference to the result of other proceedings in order to proceed to trial. This is firstly because of the time Mr Ahmad has spent in detention. Secondly because he intends to contest the charge on grounds unrelated to the pre-trial issues. Given the urgency; given s 232A Migration Act (CW) is now repealed and raises slightly different issues to those in the reserved questions of law,[2] I have endeavoured to resolve the issues under s 26L Evidence Act (NT) in the knowledge both parties’ rights to appeal are preserved by this process. As will be seen, given the conclusion I have reached on the first issue, I will not proceed to answer the final issue raised as that is likely to be answered elsewhere and at this stage is not necessary to answer in the context of this trial.Relevant Facts and Circumstances The facts sufficient to ground the rulings are drawn from particulars provided by the prosecution, supplemented by submissions. 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Given my conclusion in relation to issue (1); it is no longer strictly necessary to answer this question for the purpose of this trial and I decline to do so at this time. Conclusion The group of “five or more people” are not people to whom s 42(1) Migration Act applies within s 232A Migration Act. Section 232A has extra-territorial reach and is capable of applying beyond the territorial sea and the contiguous zone._________________________

Ratio Decidendi

Legal Principle Established

Section 42(1) Migration Act (CW) provides:(1)Subject to subsections (2), (2A) and (3)[5], a non-citizen must not travel to Australia without a visa that is in effect.(i)Does the inclusion of s 42(1) Migration Act with s 232A create a requirement “travel to Australia” that the prosecution must prove? The Crown submits notwithstanding the reference to s 42(1) in s 232A Migration Act, all that is required to be proven by way of a circumstance, is that at least five of the non citizens did not have a valid visa to come to Australia. It is submitted there is no need to prove “travel to Australia” as that term is used in s 42(1). The Crown argues the physical and fault elements for s 232A Migration Act (CW) are as follows:(a)The accused(D) facilitated to bringing to Australia of a group of 5 or more people (physical/conduct);(b)D did so intentionally (fault/intention);(c)At least 5 of the persons had no lawful right to come to Australia – that is to say, they were not citizens and did not have a visa that was in effect (physical/circumstance);(d)D was reckless as to the fact that at least 5 of the persons had no lawful right to come to Australia – that is to say, they were non-citizens who did not have a visa that was in effect (fault/recklessness). The Crown’s analysis is that ‘recklessness’ is the fault element applying to the physical element (c), a “circumstance”. The “circumstance” on this argument is referrable to s 42(1) Migration Act. Section 42(1) however does not state merely that the persons “were not citizens and did not have a visa that was in effect”. It states “a non-citizen must not travel to Australia without a visa that is in effect”. Having expressly incorporated s 42(1) Migration Act as part of the definition of the offence, in accordance with long held rules on the interpretation of penal provisions, the provision must be strictly construed. Although recklessness is indeed the express fault element[6] as to the accused’s mental state vis a vis the status of the people, that status must first be determined by application of s 42(1). The status of the people concerned, must be determined by force of s 232A Migration Act in accordance with s 42(1). The prohibition in s 42(1) is not merely not having a visa in effect, but not travelling to Australia without one. It has been argued s 42(1) represents a requirement that is not a physical element in the sense the High Court analysed the offence of conspiracy in R v LK.[7] There the plurality judgement held the physical element of conduct involving the entry into the agreement was the relevant conduct that was criminalised. The specifications of what would be expected to be amount to an agreement were all considered referrable and subsumed in the physical element of the criminalised agreement. To import those requirements or specifications would produce highly technical and artificial “elements” of the offence.[8] In any event, citing Director of Public Prosecutions (NT) v WJI,[9] the plurality judgement adopted the observation “that the operation of those provisions of the Codes dealing with general principles can be worked out only by specific solutions of particular difficulties raised by the precise facts of given cases”. In my view the reasoning of R v LK does not exclude treating here the words “travel to Australia” as at least a “requirement” that must be proved. It may be regarded a physical element, or as I prefer, a requirement that must be proven without necessity of proof of a separate fault element.