Zamudin v The Queen

[2013] NSWCCA 120

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Zamudin v R [2013] NSWCCA 120

Hearing dates:

30 April 2013

Decision date:

22 May 2013

Before:

Macfarlan JA at [1]
Campbell J at [41]
Barr AJ at [56]

Decision:

(1) Leave to appeal granted.

(2) Appeal allowed.

(3) Conviction quashed.

(4) Verdict of acquittal entered.

Catchwords:

CRIMINAL LAW - Indonesian crewman on fishing vessel carrying 97 asylum seekers to Christmas Island convicted of people smuggling offence under s 233C(1) Migration Act 1958 (Cth) - whether Crown proved beyond reasonable doubt that applicant knew vessel or its passengers were destined for Australia - Crown bound by limited case run at trial - applicant gave evidence that told by those who engaged him not to ask where the vessel was going - relevance of lies by applicant - guilt not proved beyond reasonable doubt - conviction quashed

Legislation Cited:

Criminal Appeal Act 1912
Migration Act 1958 (Cth)

Cases Cited:

Alomalu v R [2012] NSWCCA 255
Bale v Mills [2011] NSWCA 226; 81 NSWLR 498
Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1
Edwards v The Queen [1993] HCA 63; 178 CLR 193
Fonseka v The Queen [2003] WASCA 111; 140 A Crim R 395
M v The Queen [1994] HCA 63; 181 CLR 487
Pereira v Director of Public Prosecutions [1988] HCA 57; 63 ALJR 1
R v Anderson [2001] NSWCCA 488; 127 A Crim R 116
R v Hillier [2007] HCA 13; 228 CLR 618
R v Razak [2012] QCA 244
Sunada v R [2012] NSWCCA 187
SKA v The Queen [2011] HCA 13; 243 CLR 400
Zolmin v R [2012] QCA 355
Zoneff v The Queen [2000] HCA 28; 200 CLR 234

Category:

Principal judgment

Parties:

Ardi Zam Zamudin (Applicant)
Regina (Respondent)

Representation:

Counsel:
G Brady (Applicant)
M McHugh SC/C Lee (Respondent)
Solicitors:
Nyman Gibson Stewart (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2011/95028

 Decision under appeal 

Jurisdiction:

9101

Citation:

R v Ardi Zam Zamudin

Date of Decision:

2012-03-21 00:00:00

Before:

King DCJ

File Number(s):

2011/95028

Judgment

1. MACFARLAN JA: Following a trial before a judge and jury in March 2012, the applicant and two co-accused were convicted of the following offence:

"Between about 29 November 2010 and about 1 December 2010 in the seas between the Republic of Indonesia and the Territory of Christmas Island, Australia, [they] facilitated the bringing or coming to Australia of a group of at least five persons, namely a group of ninety-seven (97) persons, who were non-citizens and who had or have no lawful right to come to Australia, and they did so reckless as to whether the said ninety-seven persons had, or have, a lawful right to come to Australia.

Contrary to Section 233C(1) Migration Act 1958 (Law Part Code: 72121). "

1. The applicant seeks to appeal against his conviction upon the ground that the verdict against him of guilty was unreasonable and not supported by the evidence (see s 6(1) of the Criminal Appeal Act 1912). He requires leave to appeal as his application does not relate to a question of law alone (ibid, s 5(1)(b)). On appeal the sole issue between the parties is whether the Crown established beyond reasonable doubt that the applicant knew that the asylum seekers were destined for Australia, either because he knew the vessel was destined for Christmas Island which he knew was a part of Australia, or that he knew that the ultimate destination of the passengers was Australia. An accused's knowledge that the destination of persons whose journey he assists is Australia is an essential element of an offence under s 233C(1) (Sunada v R [2012] NSWCCA 187 [5] - [7]).

AGREED FACTS

1. A Statement of Agreed Facts tendered at the trial established the following.

1. On 1 December 2010, a Royal Australian Navy ship intercepted Suspected Irregular Entry Vessel ("SIEV") 217 within Australian territorial waters, about 1.31 nautical miles from Christmas Island. At the time, SIEV 217 was headed towards Christmas Island.

1. On board the vessel were three Indonesian crew members (being the applicant and his two co-accused) and 97 passengers, none of whom had a valid visa authorising their entry into Australia.

THE CROWN CASE

1. Chief Petty Officer Philpott, who was in charge of the intercepting party, gave evidence that:

• The vessel was very crowded. Some people were lying down, some were sitting and some were standing.
• Christmas Island is approximately 800 nautical miles off the coast of Australia and 180 nautical miles off the coast of Indonesia.

1. Mr Reza Khatooni, a passenger on the vessel, gave evidence that:

• He saw the applicant handing out biscuits and water to the passengers but did not see the applicant doing anything else.
• As the Navy vessel approached, the co-accused Mr Asis gestured to him that the police were coming, by bringing his hands together as if in handcuffs.

1. Mr Esmaeil Abgoon, another passenger, gave evidence:

• Mr Asis did most of the steering. The applicant and the co-accused, Mr Armin, both attended to the vessel's motor and assisted with the steering.
• The vessel was not strong and safe and the conditions for the passengers were not good, with nowhere to sleep, no facilities and no life jackets.

1. Mr Hamid Ghoondoghdoei, another passenger, gave evidence that:

• There was only food and water on the vessel and no other facilities.
• He saw the applicant steering the boat on occasions, as well as looking after the engine and preparing food for the passengers.

1. Maps tendered by the Crown showed that Christmas Island lies directly south of the western end of the island of Java, which is part of Indonesia, and that if a vessel travelled directly south from Christmas Island, a part of Australia, it would travel a long way to the west of Western Australia and Australian Territorial waters. The maps also showed that Ashmore Island, also a part of Australia, lies much closer to Australia than Christmas Island and directly north of it.

THE DEFENCE CASES

1. Each of the accused gave evidence and stated that he did not know the other accused before boarding the vessel. Mr Asis stated that he knew the destination of the vessel to be Christmas Island but said that he did not know that Christmas Island was part of Australia. The applicant and Mr Armin denied knowing the vessel's destination.

1. The applicant's evidence-in-chief included the following:

• He lived on the island of Seram with his wife and three (now four) children (the island of Seram lies to the north of the island of Timor and well to the north-east of the island of Java).
• His home has two rooms, with no bathroom. He did not have a television, computer or radio. He did not have a mobile phone, although his wife did.
• He was educated to the age of 18 and studied maps of Indonesia at school but did not recall seeing a map of Australia, nor a map that included Christmas Island.
• He had a job helping to operate an excavator. If he worked a full day he was paid 100,000 Rupiah.
• Prior to coming to Australia, he set out to travel from his home town to Jogja on Java to see a younger sibling but only got as far as Surabaya (on the north side of Java). There, two people whom he did not know offered him a job to "take a boat but at that time I did not know where to". He said that one of them told him that "I would take people but at that time I did not know where to". He was told that he would receive 7.5 m Rupiah and would maybe be away for only two weeks. When he asked where he was going, the boss of the two replied "[d]on't ask questions too much if you need the money".
• Having accepted the offer, he was taken by car to a beach, the whereabouts of which was unknown to him, arriving at night time, where he boarded a boat that took him to SIEV 217. (The evidence did not reveal the location of the departure point but as a matter of inference it would appear to have been on Java).
• When he boarded, he went directly the engine room, his job being to look after the engine. At no stage of the journey did he know what the vessel's destination was. When asked whether he asked Mr Asis where the boat was going, the applicant said he did not because "[t]hat's not my business, that's not my business".

1. The applicant's evidence in cross-examination included the following:

• At school he saw maps showing mainly Indonesia but also part of Australia.
• In a good week he might earn 500,000 Rupiah, but he never got to work a full month to earn 2 m Rupiah. It might take him longer than a year to earn 7.5 m Rupiah.
• He was surprised that he was offered such a large sum of money for only two weeks' work but was not suspicious.
• He denied that he was told by the people who engaged him that the destination of the boat would be Australia.
• He noticed that the boat was very crowded and knew that the people on it were passengers. He heard them talking but couldn't understand them because they were speaking a different language. He thought that they were tourists from a country other than Indonesia. He thought they were tourists "because tourists normally in Indonesia what they want is heat, sunbathing" and he thought that the passengers on the upper deck were sunbathing. He agreed that many of the passengers were sick and one or two of them were vomiting.
• He did not think that "because they were probably from another country that they might be travelling to a country other than Indonesia".
• During the journey, he did not talk to either Mr Asis or Mr Amin about where the boat was going. He said that he thought that "I did not have any right to ask them these sort[s] of questions so I did not ask these sort[s] of questions to them".

THE CROWN'S CLOSING ADDRESS

1. The Crown's closing address included the following:

"The Crown accepts that [Mr Zamudin's] evidence in respect of the offer was for the most part more plausible. He did at least ask from the get go what the destination was, and his evidence was that he was told to just follow the boss. He did at least say he was surprised by the nature of the offer, and he also gave evidence that he at least did wonder why he was the person being so fortunate as to be favoured with this most generous of offers. But despite all that, he said he was not suspicious. Despite the huge size of the offer - again more than a year's wages - that he was not suspicious that he might be being asked to do something unlawful.

The Crown says you might have cause to wonder whether, in respect of his account of the offer that was being made to him, he is being truthful, or whether in fact he was told from the outset what the destination of the boat was ... " (Transcript 19/03/12, p 168).

CLOSING ADDRESS ON BEHALF OF THE APPLICANT

1. The applicant's counsel's closing address included the following:

"Members of the jury, Mr Zamudin's case is a simple one. He did not know that SIEV 214 [sic] was going to Australia because nobody told him that that was the destination of the boat. The Crown case, likewise, as put to you by my friend, is also a simple one. He says that Mr Zamudin did know that the boat was coming to Australia because in his words he was told from the outset what the destination of the boat was" (AB 191).

MR ASIS' COUNSEL'S CLOSING ADDRESS

1. Mr Asis' counsel's address included the following:

"You might think that the real question in this trial is this: is there no reasonable possibility - no reasonable possibility - that the people smugglers withheld information from Mr Asis about his true destination? No reasonable possibility that people smugglers withheld information from Mr Asis about his true destination because the Crown case is that Mr Asis was told. The Crown case is that Mr Asis was told he was going to Christmas Island and that Christmas Island was a part of Australia.

The Crown doesn't suggest, as I understand, that if he wasn't told that by the people smugglers he would have managed to work it out himself and I'll come back to why that would be something that you would reject quite comfortably. So the real question becomes this, doesn't it: is there no reasonable possibility that the people smugglers withheld information from Mr Asis about his true destination? That is people smugglers, people who lie, people who break the law, people who are secretive for a living, and quite a good living by the sounds of it, people who are secretive for a living did not confide in an ignorant Indonesian fisherman. No reasonable possibility that people who are secretive for a living did not confide in an ignorant Indonesia[n] fisherman?" (AB 205)

THE TRIAL JUDGE'S SUMMING-UP

1. The Summing-Up included the following:

"... It is necessary for the Crown to prove that the accused intended to facilitate the bringing or coming to Australia of a group of five or more people. If it is proved that the accused intended to bring the people to Christmas Island, the Crown must prove either that the accused knew that Christmas Island is part of Australia, or that the accused knew that the intended ultimate destination of the people was to be Australia (Transcript 19/03/12, p 9).

...

... [The Crown Prosecutor] said that the Crown asks you to draw a conclusion from the circumstantial evidence that the only reasonable conclusion is that each of the accused must have known that the destination was Australia. As the Crown put it, that was the real issue in the case (Transcript 20/03/12, p 3).

... [The Crown Prosecutor, referring to Mr Zamudin's evidence] said 'Could you accept this version as truthful?' Or again, was he in fact told from the outset that the destination was Australia? (Transcript 20/03/12, p 19)

...

If I could then take you to [counsel for Mr Zamudin's] closing address in relation to Mr Zamudin, he said that his case was a simple one. His case was he did not know he was going to Australia when on the vessel, because no-one had told him that that was the destination. He said that the Crown case was also simple. As he interpreted the Crown case, it was that you would be satisfied that Mr Zamudin knew beyond reasonable doubt that the destination of the boat was Australia, because you would be satisfied that the person who had recruited him had told him it was to be Australia" (Transcript 20/03/12, p 21).

RELEVANT CASE AUTHORITIES

1. In R v Razak [2012] QCA 244, the Queensland Court of Appeal dismissed an appeal by a crewman on an asylum seeker vessel from his conviction of an offence under s 232A(1) of the Migration Act. The Court concluded that "the evidence was sufficiently cogent to allow the jury to find beyond reasonable doubt that the appellant had the requisite intention" (at [18]; compare SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11] - [14] and [20]).

1. In reaching this conclusion Fraser JA (with whom Muir and Gotterson JJA agreed) said:

"[17] ... 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. The evidence certainly justified an inference that at least the member or members of the crew in control of the vessel's movements must have known that the vessel's destination was within Australia. Bearing that in mind, a variety of circumstances justified the inference that the appellant knew that the destination of the vessel was within Australia: the evidence that the appellant was employed as a cook and was one of only four crew members working together on this small vessel, the evidence that the appellant and the other crew members spoke the same language, the evidence of Ahmadi that the four crew members cooperated and worked with one another, the evidence of Eisanejad that the appellant was regularly inside the wheelhouse from which the vessel must have been navigated, and that natural human curiosity which, the jury could find, would have led the appellant to enquire about the vessel's destination if that information was not volunteered to him. None of this evidence was necessarily inconsistent with the evidence of other passengers that they did not see the appellant communicating with other crew members."

1. His Honour's observation that those in control of the vessel's movements must have known that its destination was within Australia must be understood in the context of the facts of that case where, to arrive near Ashmore Island, the vessel must have been travelling from Indonesia in the direction of mainland Australia (see [10] above). That was not so in the present case where, to reach Christmas Island from Indonesia, the vessel would not have been travelling anywhere near the direction to mainland Australia. Furthermore, the Crown case in Razak apparently included a contention that the appellant was told of the vessel's destination during the course of the voyage. For reasons that I will later explain, this was not so in the present case (see [24] below).

1. In Alomalu v R [2012] NSWCCA 255, this Court quashed the conviction of an asylum seeker vessel crew member of an offence of aggravated people smuggling under s 233C of the Migration Act. In that case, McClellan CJ at CL (with whom Rothman and Adamson JJ agreed) concluded that the most that could be established from evidence of conversations in that case was that the appellant was told that the passengers would be taken to Ashmore Reef. His Honour noted that the Crown conceded that there was no evidence to establish that the appellant knew that Ashmore Reef was a part of Australia and continued:

"38 In the last decade the arrival to Australia of asylum seekers via boat from Indonesia is an issue that has received considerable focus in the Australian media. As a result, many Australians would be aware of the location of Ashmore Reef, know that it is part of Australia and be conscious of its significance as a port of entry for asylum seekers. Many Australians would readily infer that a boat that departs from a port in Indonesia with 78 passengers from Middle Eastern nations and charts a course in a southerly direction is likely to have a final destination of Australia. However, it is a different matter for a poor, itinerate worker from Indonesia. Knowledge that an Australian would have cannot be attributed without evidence to an Indonesian. The inevitable outcome is that I have a doubt about whether the appellant knew that he was facilitating the bringing of persons to Australia and that is a doubt that the jury should have had. The issue is not capable of being resolved adversely to the appellant by any advantage which the jury may have had. It follows that the verdict is unreasonable and cannot be supported by the evidence."

RESOLUTION OF THE APPEAL

1. As noted earlier, the applicant appeals upon the ground that the jury's verdict that he was guilty of the offence charged was unreasonable and not supported by the evidence. To determine an appeal advanced on this ground, this Court must make an independent assessment of the evidence, both as to its sufficiency and quality, and decide whether the Crown proved its case beyond reasonable doubt (SKA at [11] - [14] and [20]). If the Court is left with any reasonable doubt about the applicant's guilt and the jury's verdict of guilty cannot be explained by the jury's advantage in seeing and hearing the witnesses, the Court must quash the conviction (ibid).

The Crown's case at trial

1. Whether there was sufficient evidence to support the conviction must be considered in the context of the case that the Crown advanced at the trial, not a case that it might have, but did not, advance. For an accused's trial to have been fair, he or she must have had an opportunity to meet the Crown's case. That will not have occurred if the Crown is allowed on appeal to support a conviction on a different basis to that upon which it relied at the trial.

1. Analysis of the record of the trial in my view indicates that the only case that the Crown could fairly be regarded as having advanced was that the applicant was told in Indonesia, by those who engaged him for the journey, that the destination of the vessel upon which he was being asked to serve would be Australia. In my view that is the only case upon which the Crown may rely on appeal.

1. The nature of the Crown's case at trial emerges from the following aspects of the record.

1. First, the only specific suggestion that was put by the Crown to the applicant in cross-examination about the vessel's destination was that he was told of it by the people who engaged him (see [13] above). Whilst he was asked in cross-examination whether, whilst on the vessel, he talked to Mr Asis or Mr Amin about where it was going, it was not suggested to him that either of them told him of its destination.

1. Furthermore, it was not put to him that, whether or not he was at any time specifically told of the vessel's destination, it would have been obvious to him from factors such as the direction in which the vessel was being steered and the crowded conditions of the passengers that they were asylum seekers bound for Australia. As the Crown had not previously advanced such a proposition at the trial (and indeed did not do so subsequently), the applicant did not have the opportunity to explain why it should be rejected. As a result it would be unfair to the applicant to now allow the Crown to rely upon it (see generally Bale v Mills [2011] NSWCA 226; 81 NSWLR 498 at [39] - [48]).

1. Secondly, the Crown's closing address focused in relation to the applicant's knowledge of the vessel's destination on what it alleged he was told when he was engaged and did not contend that there were any other sources of knowledge (see [14] above).

1. Thirdly, in his closing address the applicant's counsel put squarely to the jury that the Crown's case was limited to the proposition that the applicant "was told from the outset what the destination of the boat was" (see [15] above). The Crown did not at that time, or subsequently, seek to correct that statement.

1. Fourthly, in his closing address Mr Asis' counsel described the Crown's case in similar terms and specifically noted that the Crown did not suggest that if Mr Asis "wasn't told [the vessel's destination] by the people smugglers he would have managed to work it out himself" (see [16] above). Again, the Crown did not then, or subsequently, seek to correct these statements which the jury are likely to have understood as equally relevant to the case against the applicant.

1. Fifthly, in his Summing-Up the trial judge referred to the Crown's closing address as posing the question of whether the applicant's evidence of his engagement should be accepted or whether he was "in fact told from the outset that the destination was Australia" (see [17] above). Furthermore, the trial judge said that, as the applicant's counsel interpreted it, the Crown's case was that the person who recruited the applicant had told him that the destination of the vessel was to be Australia (ibid).

Whether the Crown's case at trial was proved beyond reasonable doubt

1. In my view the Crown did not prove beyond reasonable doubt that the applicant was informed of the vessel's destination by those who engaged him.

1. The Crown Prosecutor acknowledged in his closing address that the applicant's evidence in respect of his engagement in Indonesia was for the most part plausible ([14] above). However, I would go further and conclude that the whole of that evidence was plausible. In particular, the applicant's evidence that when he asked where he was going, he was told "[d]on't ask questions too much if you need the money" accorded with commonsense. As was forcefully put by Mr Asis' counsel in his closing address in relation to his client, why would people who were engaged in breaking the law by smuggling people into Australia have confided in a person such as Mr Asis (see [16] above). It is far more likely they would have been reluctant to impart any more knowledge to others than was absolutely necessary. There was no apparent need for intended crew such as Mr Asis and the applicant, who were not to be in charge of the vessel, to be informed of its destination.

1. The Crown did not of course call any party or witness to this conversation to contradict the applicant's apparently credible evidence of it. Nor in my view did it prove any circumstances that would require rejection of that evidence.

1. As a result, I am left with at least a reasonable doubt that the applicant was told by those who engaged him that the destination of the vessel upon which he was to serve was Australia. There being no conflict between competing evidence about the conversation which the jury had to resolve, the jury did not in my view have any advantage in seeing and hearing the witnesses that would explain why it returned a verdict of guilty when my assessment of the record of the trial leaves me with a reasonable doubt about the applicant's guilt.

1. The adverse view about the applicant's credibility which presumably underpinned the jury's verdict of guilty did not provide that explanation as a view formed by the jury that the applicant lied would not have entitled it to regard the Crown's case as thereby established, at least where the lies were, as here, not relied upon by the Crown as manifesting a consciousness of guilt (Edwards v The Queen [1993] HCA 63; 178 CLR 193 at 201 - 202, 209; Zoneff v The Queen [2000] HCA 28; 200 CLR 234 at 244 - 245 and Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1 [32] - [33]). I do not regard the observation of the plurality in R v Hillier [2007] HCA 13; 228 CLR 618 at [50] that in a circumstantial case the jury should consider all of the evidence (including that of the accused) as suggesting otherwise.

1. I have indicated earlier why the decision in R v Razak is distinguishable from the present case (see [20] above). The decision in Alomalu, although resulting, as should occur here, in the quashing of the conviction of an asylum seeker vessel crew member, is also distinguishable because the Crown's case there was not confined to an allegation that the appellant had been told of the vessel's destination when he was engaged.

1. If the Crown's case had been put more broadly in the present case, the Crown would in my view have encountered similar difficulties to those identified in Alomalu (see [21] above). The applicant here is a poor man who lived far from the island of Java and other parts of Indonesia facing Australia. He did not have a television, computer or radio that may have apprised him of the asylum seeker issues of which most Australians are very conscious. Nor was he a fisherman or a person who was suggested to have associated with fishermen or other persons who may have been involved in the bringing of asylum seekers to Australia. Moreover, the vessel upon which he was a member of the crew did not travel in the direction of mainland Australia but to an island (Christmas Island) of which he cannot be assumed to have been aware, much less to have known was part of Australia.

1. In these circumstances it could not have been concluded, certainly not beyond reasonable doubt, that he knew that the vessel or its passengers were bound for Australia. Actual knowledge must be proved, not mere suspicion (Pereira v Director of Public Prosecutions [1988] HCA 57; 63 ALJR 1 at 3).

ORDERS

1. For the reasons I have given, the applicant should be granted leave to appeal and his conviction should be quashed. As there is no basis upon which an order for a new trial could be justified, a verdict of acquittal should be entered.

1. CAMPBELL J: I agree with Macfarlan JA, for the reasons his Honour gives, that the applicant should be granted leave to appeal, his conviction quashed, and a verdict of acquittal entered. I also agree with the additional comments of Barr AJ.

1. As it is a serious step to set aside a conviction based on the verdict of a jury, I briefly wish to state my own conclusions.

1. I wish to record that I have made my own independent assessment of the evidence. The question whether "the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence" (s 6(1) Criminal Appeal Act 1912 (NSW)) is, as Macfarlan JA points out, one of fact. The powers of this court to grant relief may be exercised notwithstanding that there is evidence upon which a jury might have convicted. In the present case, notwithstanding the clear rejection of Mr Zamudin's evidence by the jury, I doubt that there was evidence available capable of establishing against the applicant the second element of the offence, that is, that the applicant intended to facilitate the bringing of the passengers to a destination that was part of Australia, which he knew was part of Australia.

1. I agree with Macfarlan JA's analysis that the Crown case at trial was advanced on a narrow front i.e. that at the time of his engagement in Indonesia, Mr Zamudin was told by the people smugglers that the destination was Australia: see Macfarlan JA at [24]. The applicant denied this and though the jury must have rejected his evidence in that regard, this is surprising given that the Crown acknowledged that the applicant's account, at least about those details, was plausible (Appeal Book 187.45 - 188.5).

1. At trial, the Crown, notwithstanding the concession of the plausibility of Mr. Zamudin's account of his engagement, submitted that the jury should be satisfied beyond reasonable doubt that he was not telling the truth because of evidence he gave about other matters which the Crown submitted was "simply absurd": AB 189.15. The Crown submitted that this evidence damaged the applicant's credibility to such an extent that they should "reject also his denials of knowledge of the destination of the boat beyond reasonable doubt".

1. As Macfarlan JA points out at [36], in some circumstances, lies told by an accused may be taken as evidence manifesting a consciousness of guilt. The Crown neither below nor on appeal relied upon that body of law, and therefore, it goes without saying, no direction relevant to that matter was sought or given. Moreover, the general rule is that the rejection of the testimony of the accused does not of itself permit an inference of guilt to be drawn. As counsel for the applicant pointed out in supplementary written submissions, the general rule was expressed by Kirby J (Sheller JA and Dowd J agreeing) in R v Anderson [2001] NSWCCA 488; 127 A Crim R 116 at [25] - [26]. It is sufficient to summarise the rule by quoting the concluding part of the direction his Honour thought customarily should be given when an accused has given evidence (at [26]):

...if you do not believe the accused, then you should put his testimony to one side. The question will remain; has the Crown, upon the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?

As the other authorities, which need not be set out here, referred to by learned counsel indicate, there is a substantial body of law establishing the correctness of this approach.

1. At trial, the crown prosecutor said (AB 178 15-25]:

So I suppose what I should say is that there's no direct evidence in the Crown case to prove that [any of the crew] knew that the destination of the boat was Australia. How then does the Crown go about proving its case in respect of what the state of mind of each of the accused was? Well, his Honour will give you more detailed directions about this, but I think for present purposes I can be of some assistance in saying that what the Crown would ask you to do is to draw a conclusion from all the circumstances of the journey - in other words, from the circumstantial evidence - that the only reasonable conclusion you can draw is that each of the accused must have known that the destination of the boat was Australia.

1. But even allowing for the rejection of the evidence of the applicant as a whole, what other circumstance was there to prove that the applicant was told at or about the time of his engagement that the boat's destination was Australia?

1. To answer this question learned senior counsel who appeared for the Crown on appeal cited Fonseka v The Queen [2003] WASCA 111; 140 A Crim R 395 where Wheeler J said (at 398 [15]):

In my view, evidence as to the state of mind of persons on the vessel about their destination was capable of being circumstantial evidence against the appellant. As his Honour pointed out during the course of argument, if 68 people on a bus have a view that the bus has Claremont as its destination, it is a reasonable inference that the 69th person shares that view. So with the vessel, the understanding of others on the vessel was capable of giving rise to an inference about the appellant's state of mind in relation to that issue. Where the evidence related to the state of mind only of one other person on the vessel, it was obviously of less weight, but it could not in my view be said to have no weight whatever. The understanding of the person Gray as to the vessel's destination was therefore in my view a relevant fact.

1. Senior counsel pointed out that Wheeler J's dictum was referred to by Fraser JA in R v Razak [2012] QCA 244 at [17], at least in footnote 5. Macfarlan JA has set out the material part of Fraser JA's judgment at [19], and points out material factual and evidential differences between this case and that at [20]. (See also [37] of his Honour's judgment). And, as I have said, I agree with his Honour's reasons.

1. Moreover, in Zolmin v R [2012] QCA 355, McMurdo P (Holmes and White JJA agreeing), at [49], pointed out in relation to Wheeler J's approach:

Murray and Hasluck JJ agreed with Wheeler J that Fonseka's appeal should be allowed but on another ground. They did not join in Wheeler J's observations set out above. Those observations are therefore obiter and this court is not bound by them. Whether evidence is admissible as a piece of circumstantial evidence will depend on the admissible relevant evidence in each particular case. In the present case the passengers and the appellants spoke different languages and were unable to and did not communicate with each other about their destination or any issue other than food and cigarettes. The fact that five passengers believed they were travelling to Australia does nothing in this case to prove the appellants' state of knowledge as to the voyage's destination.

In my view her Honour's analysis is apposite to the circumstances of the present case. The admissible relevant evidence in this case did not extend to circumstances like those discussed by Fraser JA in Razak at [17]. Nor in my view could the jury infer, having regard to the way the Crown case was put to them, "that the Indonesian crew members, as the persons who implemented the contractual arrangements which passengers presumably entered into to be carried to Australia, would have been aware that Australia was their destination": Razak at [18]. I repeat that the plausibility of the recruiter's response to the applicant's question at the time of his engagement, effectively "don't ask", foreclosed this line of reasoning.

1. I acknowledge that at trial, the Crown relied upon the intention of the passengers as a relevant circumstance (AB 179.30) to be weighed with all other circumstances. But in my view it was not a relevant circumstance because the Crown case hinged on what the applicant was told when he was engaged. That was before he joined the boat. And in fact, there was no evidence of any relevant contact between the applicant and the passengers, who spoke Farsi, not Indonesian. Any later contact therefore could not form part of all the circumstances available to found the inference, and as the only rational inference, that the plaintiff was told at the time of his engagement of the boat's destination.

1. As the case against the applicant was a purely circumstantial case, the exercise by this Court of its statutory powers is informed by the judgment of Gummow, Hayne and Crennan JJ in R v Hillier [2007] HCA 13; 228 CLR 618. Neither a jury, nor an appeal court, is entitled to consider a circumstantial case "piecemeal": Hillier at 638 [48]. All the circumstances must be weighed; no part can be put to one side. At 639 [50] the plurality said:

...it is important to recognise that [the applicant] gave evidence at his trial. The Court of Appeal made no reference to this evidence when considering whether the jury's verdict should be set aside. One question which the jury was bound to consider was what they made of [the applicant's] evidence. Did they believe that [the applicant] may have been telling the truth when he denied responsibility for [the victim's] death? Or were they, as the verdict revealed, positively persuaded on a consideration of all of the evidence (including his) in that case that he was not? (Emphasis in the original).

As I have said, here the jury clearly rejected the applicant's evidence. That is to say, they must have been satisfied beyond reasonable doubt that he was not telling the truth. This is a matter which has caused me great concern when considering this case. However, I agree with Macfarlan JA that the quoted passage from Hillier does not displace the established principles I have referred to above at [46].

1. I acknowledge that seeing and hearing the applicant give evidence is an advantage enjoyed by the jury, which cannot be re-created in this Court. However, I also agree with Barr AJ who explains that in the particular circumstances of this case, the jury enjoyed no great advantage over this Court. Having reviewed the whole of the evidence, I am of the view that the rejection of the applicant's evidence is not a circumstance, whether taken alone or in conjunction with all the other circumstances, from which it was open to a jury to draw the inference sought by the Crown, as the only rational inference available, that the applicant knew the destination of the vessel was Australia because that was what he had been told when he was engaged. Indeed, the proper concession of plausibility made by the Crown at trial is a telling reason why that inference was not the only inference open on the evidence.

1. I doubt that the applicant is guilty of the crime of which he has been convicted. And in my judgment, this doubt was not capable of having been resolved at trial by the jury's advantage of seeing and hearing the witnesses give evidence. On the whole of the evidence, I am satisfied that it was not open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. There is a significant possibility that an innocent person has been convicted (M v The Queen [1994] HCA 63; 181 CLR 487 at 494). The Court is bound to act to set aside the verdict, and like Macfarlan JA, I am not satisfied beyond reasonable doubt that the proviso to s 6(1) is engaged.

1. BARR AJ: I have had the advantage of reading in draft the judgment of Macfarlan JA and am grateful to his Honour for the summary of the facts set out therein. The Crown had to prove that the appellant knew that the destination of the vessel was Australia. It limited its case by undertaking to prove that he knew that before the vessel left Indonesia because somebody had told him. There was no direct evidence of that. The principal evidence in the Crown case was that the appellant made the voyage as a member of the crew and that the vessel was steered directly to Australia. Although he was not the steersman the appellant assisted for a short time in steering the vessel.

1. The appellant gave evidence through an interpreter. Unfortunately, evidence given in that manner usually lacks spontaneity and the opportunity juries sometimes have of assessing the reliability of witnesses, for example by demeanour, is lost. In those circumstances the only remaining way of assessing reliability is by asking whether the evidence might self-evidently be true and by comparing it with all the other evidence in the case. In my opinion this Court is in as good as a position as the jury in performing that task.

1. The details of the appellant's evidence are set out in the judgment of Macfarlan JA. If I may summarise what is for me the most important part of it, the appellant told the Court that he asked where the vessel was going but was told not to ask if he wanted to be paid. I think that those who organise, finance and profit from voyages of this kind know that if their craft reaches Australia the members of the crew will be arrested. It seems to follow that in recruiting crew for such voyages the less said by the organisers the better.

1. I have read the evidence in the Crown case. In my opinion the case was weak and I would not have been prepared to infer the essential knowledge from the evidence. However, I do not need to deal with the detail because I find plausible the appellant's evidence that he did not know. It is quite possible that he was telling the truth. I cannot therefore be satisfied beyond reasonable doubt that he did know.

1. I agree with Macfarlan JA that the appeal should be allowed, the verdict and sentence quashed and a verdict of acquittal entered.

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Decision last updated: 22 May 2013