R v Konsaijan

[2012] NZHC 2293

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-090-6500 [2012] NZHC 2293

THE QUEEN

v

WIMONRAT KONSAIJAN

Hearing:         3 September 2012

Appearances: Mr R M A McCoubrey for the Crown

Mr S Lance for the Accused

Judgment:      3 September 2012

Reasons:        6 September 2012

REASONS OF ALLAN J FOR DISCHARGE OF ACCUSED

Counsel:            S Lance, Auckland: [email protected]

Solicitor:            Crown Solicitors, Auckland:  [email protected]

R V KONSAIJAN HC AK CRI 2011-090-6500 [3 September 2012]

Introduction

[1]      Ms Konsaijan’s trial on three counts laid under s 98C of the Crimes Act 1961 commenced on 3 September 2012.  Following jury empanelling, I heard argument as to the proper interpretation of s 98C.  At the conclusion of the argument I ruled that, on its proper interpretation, the section was narrower than was contended by the Crown and that I would give my reasons later.

[2]      Following my ruling, Mr McCoubrey advised the Court that the Crown was not in a position to proceed because the Crown case was based upon a view of s 98C which  I  had  ruled  to  be  too  wide.    He  accepted  that,  in  those  circumstances, Ms Konsaijan was entitled to be discharged but advised that he would be asking the Court to refer a question of law arising out of my ruling for the opinion of the Court of Appeal pursuant to s 381A of the Crimes Act 1961.

[3]      At 10.00 am on Tuesday 4 September 2012,  I discharged Ms Konsaijan pursuant to s 347 of the Crimes Act.

[4]      This judgment contains my reasons for my earlier ruling.

The Crown case in outline

[5]      Ms  Konsaijan  is  a  Thai  national.    In  about  December  2010,  she  was approached by three other Thai adult female nationals who asked her to assist them in obtaining visas which would permit them to travel to Australia to work.  It was agreed that the accused would arrange visitor visas for travel to Australia, the women supplying her with the necessary documentation including passports and ID cards. The women agreed to pay the accused a substantial fee.

[6]      Visa   applications   to   the   Australian    authorities   were   unsuccessful. Ms Konsaijan  then  applied  for  visas  to  enable  the  three  women  to  enter  New Zealand.   Although some were reluctant to go to New Zealand, they did provide further material to Ms Konsaijan and ultimately in June 2011 she advised them that they had been granted visitor visas for New Zealand.

[7]      On the Crown case, she also told them that, although they had obtained visitor visas, they would be able to work once they arrived in this country.   The Crown also contends that the accused, who was responsible for the preparation of the various  applications  to  the  New  Zealand  immigration  authorities,  deliberately falsified certain documents and that she gave her three clients explicit instructions about what to say when they arrived at the New Zealand border.

[8]      All  three,  along with  the accused  and  her daughter,  arrived  at Auckland International Airport on 13 July 2011.  The accused and the three women were given one month visitor visas.  Ms Konsaijan’s daughter was granted a three month student visa.

[9]      It soon became clear that no work had been arranged for the complainants. Within a matter of days they were taken into the care of members of the New Zealand Thai community who provided food and lodgings.  Ultimately a complaint was  made  to  Immigration  New  Zealand,  which  instituted  criminal  proceedings against the accused.

[10]     Mr Lance advises the Court that much of the Crown case is disputed.  For example, Ms Konsaijan denies that she received any material benefit for the arrangements she made on behalf of the complainants.   It is, however, common ground that each of them arrived in New Zealand carrying valid passports and that, based upon the material the complainants had earlier submitted to Immigration New Zealand through the accused, the complainants were each entitled to a visitor’s visa.

Section 96C Crimes Act 1961

[11]     The indictment upon which Ms Konsaijan stood her trial was founded upon the provisions of s 98C of the Crimes Act 1961 which provides:

98C     Smuggling migrants

(1)       Every  one  is  liable  to  the  penalty  stated  in  subsection  (3)  who arranges for an unauthorised migrant to enter New Zealand or any other state, if he or she—

(a)      does so for a material benefit; and

(b)      either knows that the person is, or is reckless as to whether the person is, an unauthorised migrant.

(2)       Every  one  is  liable  to  the  penalty  stated  in  subsection  (3)  who arranges for an unauthorised migrant to be brought to New Zealand or any other state, if he or she—

(a)      does so for a material benefit; and

(b)      either knows that the person is, or is reckless as to whether the person is, an unauthorised migrant; and

(c)      either—

(i)       knows  that  the  person intends to try to  enter the state; or

(ii)      is reckless as to whether the person intends to try to enter the state.

(3)       The penalty is imprisonment for a term not exceeding 20 years, a fine not exceeding $500,000, or both.

(4)      Proceedings may be brought under subsection (1) even if the unauthorised migrant did not in fact enter the state concerned.

(5)      Proceedings may be brought under subsection (2) even if the unauthorised migrant was not in fact brought to the state concerned.

[12]     In order to establish its case, the Crown was obliged to show that one or more of the complainants was an “unauthorised migrant” for the purposes of s 98C.  That term is defined in s 98B as:

... a person who is neither a citizen of the state nor in possession of all the documents required by or under the law of the state for the person’s lawful entry into the state.

[13]     Mr Lance argued that each of the complainants did have possession of the documents required to enable them to enter lawfully into New Zealand.  They had valid passports and validly-issued visas, and they obtained permission from immigration  officers  at  border  control  to  enter  New  Zealand.   Accordingly,  he argued, they are not “unauthorised migrants”.

[14]   Mr McCoubrey, on the other hand, argued that the complainants were unauthorised migrants because they did not have all of the documents required (work visas) for their lawful entry into New Zealand in their particular circumstances.

Those circumstances included an intention to seek work.  A visitor’s visa would not

have provided for lawful entry for that purpose.

[15]     My ruling upheld Mr Lance’s argument and rejected that of Mr McCoubrey.

Discussion

[16]     It is common ground that the alleged offending would have been caught by s 142(1)(eb) of the Immigration Act 1987 which, so far as is relevant, provided that it was an offence where any person:

Whether within or outside New Zealand, and whether or not the other person in fact enters New Zealand, aids, abets, incites, counsels, or procures any other person to enter New Zealand unlawfully (whether by arriving in New Zealand in a manner that does not comply with section 126(1), by arriving in New Zealand without holding a visa where the other person requires a visa to travel to New Zealand, or otherwise howsoever)

[17]     An offence under this subsection carried a maximum penalty of seven years’

imprisonment.

[18]     Counsel  are  agreed  that  the  present  alleged  offending  fell  within  the expression “or otherwise howsoever” in s 142(1)(eb) and that cases have routinely been brought under the subsection, which was inserted as from 18 June 2002 by s 15(1) of the Immigration Amendment Act 2002.  That is the same date as that upon which s 98C of the Crimes Act 1961 came into force.  It is in my view proper to infer that the amendments formed part of a substantial revision of the enforcement provisions  of New  Zealand’s  immigration  laws.   The difficulty is,  as  discussed below, that s 142(1)(eb) was re-enacted in 2009 in a manner that renders it inapplicable in the present case.

[19]     The legislative history of s 98C of the Crimes Act is helpfully discussed in the judgment of the Court of Appeal in R v Chechelnitski.1    There Glazebrook J, writing the judgment of the Court, discussed at length the link between certain

provisions of the Crimes Amendment Act 2002, which enacted s 98C, and New

1 R v Chechelnitski CA 160/04, 1 September 2004.

Zealand’s obligations under the United Nations Convention Against Transnational

Organised Crime.  She said:

[3]       Sections 98B to 98F were introduced into the Crimes Act by the Crimes Amendment Act 2002. This amendment incorporated two new offences into the principal Act, one of smuggling migrants (s98C) and one of trafficking in people by means of coercion or deception (s98D). The offence of smuggling migrants is concerned with persons who, for material benefit, arrange for illegal migrants to enter or be brought to New Zealand, knowing, or being reckless as to whether, the migrant is unauthorised. Trafficking, conversely, is concerned with the situation where the migrant’s entry into New Zealand has been procured by acts of coercion or deception. Both offences are punishable by imprisonment for a term not exceeding 20 years, a fine not exceeding $500,000, or both. Section 98E provides that, when sentencing a person for an offence against either ss98C or 98D, the court must take into account certain factors, including the number of migrants involved, whether the migrants were subjected to inhuman or degrading treatment, whether bodily harm or death occurred and whether the offence was part of the activities of an organised criminal group as defined in s98A. The sections referred to are set out in full in an appendix to this judgment.

[4]       The  Crimes  Amendment  Act  2002  was  designed  to  fulfil  New Zealand’s obligations under the United Nations Convention Against Transnational Organised Crime and two of its three protocols, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (the Trafficking Protocol), and the Protocol against the Smuggling of Migrants by Land, Sea and Air (the Migrant Protocol). Specifically, s98C implements article 6(1) of the Migrant Protocol which requires State parties to establish the smuggling of migrants as a criminal offence. Smuggling of migrants is defined in article 3(a) of the Migrant Protocol as procuring the illegal entry of migrants into a State in order to obtain a financial or other material  benefit.  Section  98D  implements  article  5  of  the  Trafficking Protocol, which requires similar steps to be taken by State parties to criminalise trafficking in people.

[5]       Article 6(3) of the Migrant Protocol also requires State parties to establish certain circumstances relating to the treatment of the migrants as aggravating factors to the offences created in accordance with article 6. This requirement is fulfilled in the Crimes Act by s98E, although the list of aggravating factors in the Crimes Act is broader. There is no corresponding requirement to provide for aggravating factors in the Trafficking Protocol.

[6]       The Transnational Organised Crime Convention and the Trafficking and Migrant Protocols are the result of work done by an intergovernmental ad  hoc  committee  established  by  the  General  Assembly  of  the  United Nations in  December  1998  (A/RES/53/111). The  origins  of  the Ad  Hoc Committee may be traced to the Naples Political Declaration and Global Action Plan against Organized Transnational Crime, adopted by the General Assembly on 23 December 1994 (A/RES/49/159). The Declaration represented a recognition by the international community that the growing threat of organised crime, with its highly destabilising and corrupting influence on fundamental social, economic and political institutions, represented   a   challenge   demanding   increased   and   more   effective international co-operation. (For a general history of the Ad Hoc Committee

see the Report of the Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crimes on the work of its first to eleventh sessions (2000) A/55/383.)

[7]       Although the primary purpose of the Ad Hoc Committee was the elaboration of a convention dealing with transnational organised crime, incorporated into its mandate was the elaboration of further instruments to address the illicit trafficking in women and children, the illicit manufacturing and trafficking in firearms and illegal trafficking in and transporting of migrants. This reflected the conclusion of the Commission on Crime Prevention and Criminal Justice, which proposed the formation of the Ad Hoc Committee, that illegal trafficking in and/or transporting of migrants are normally carried out by organisations as part of their transnational criminal operations (Report on the Seventh Session (21-30 April 1998) (1998) E/CN.15/1998/11). This link between transnational organised criminal and migrant smuggling was emphasised in the preamble to the Migrant Protocol, the State parties recording that they are

Concerned at the significant increase in the activities of organized criminal groups in smuggling of migrants and other related criminal activities set forth in this Protocol, which bring great harm to the States concerned.

[8]       Despite this  background,  the  purpose  of  the  Migrant  Protocol is broadly stated in article 2 of the Protocol: to prevent and combat the smuggling of migrants.  This is to be related back to the definition of “smuggling of migrants” in article 3(a) which, as noted above, indicates that the core of the offence is the commercial element of the activity. The offence created under article 6 is also not limited to migrant smuggling by organised criminal groups (although under article 4, the Protocol only applies to the prevention, investigation and prosecution of the article 6 offences where they are transnational in nature and involve an organised criminal group).

[9] The offences established in accordance with article 6 of the Migrants Protocol are, by virtue of article 1(3) of the Protocol, to be regarded as if they were offences established in accordance with the Transnational Organised Crime Convention. Although not entirely clear on the wording, it is likely, therefore, that States are accordingly obliged to ensure that persons held liable for the offences are subject to effective, proportionate and dissuasive criminal sanctions (article 10(4) of the Convention), that take into account the grave nature of the offence (article 11(1)).

[20]     Glazebrook J also alluded to observations made by the Minister of Police at the time of the introduction of the Transnational Organised Crime Bill (the precursor to the Crimes Amendment Act 2002) into the House.  After noting the need for a concerted and co-ordinated international effort to counter the globalisation of crime, the Minister said: 2

One significant aspect of this international effort is to target those people who profit from the smuggling and trafficking of people.  People smuggling and trafficking have become lucrative international activities for organised

2 See 598 NZPD 14755 and R v Chechelnitski at [10].

crime.  Fifty percent of all illegal immigrants globally are assisted by such smugglers.   Estimated profits from the trade amount to US$10 billion annually.  New Zealand, even with its relatively geographic isolation, is not immune from this trade.

[21]     In the debates on the readings of the Bill in the House, emphasis was placed on the severe nature of the penalties proposed for the new offences in order to ensure that the legislation acted as a deterrent and to send a message that New Zealand was not a “soft target”.3

[22]     Glazebrook J also referred to the Select Committee’s consideration of the Bill, noting that the Committee thought that while the maximum penalties elevated the offending to a high level, other offences such as drug trafficking, which are similarly motivated by profit, also have high maximum penalties.4

[23]     Chechelnitski  was  an  appeal  against  sentence.    The  appellant  had  been involved  in  making  travel  arrangements  for  persons  who  were  carrying  false passports and endeavouring to pass themselves off as Israelis, although they were of Ukrainian nationality.   The appellant also the schooled the Ukrainians on Jewish phrases and customs, and counselled them on what to say if they were questioned by the New Zealand authorities.  There could be no doubt that a person who endeavours to enter New Zealand by presenting a false passport is not in possession of all of the documents required by law for the person’s lawful entry into the state.

[24]     Similarly, R v Setiadi, a sentencing decision where there had been a plea of guilty, involved the deployment of false passports.5    But the present case is quite different.  Here, each traveller had a valid passport and a validly issued visitor’s visa.

[25]     It is to be noted that an offence under s 98C can be committed wholly outside

New Zealand but the section is one of a limited number which may be actionable in our criminal courts without any relevant act or omission in this country.6

3 See 598 NZPD 14756 and R v Chechelnitski at [11].

4 R v Chechelnitski at [12].
5 R v Setiadi HC Napier CRI-2005-041-2770, 1 June 2006.

6 See s 7A of the Crimes Act 1961 as inserted by s 4 of the Crimes Amendment Act 2002.

[26]     No proceedings for an offence under s 98C may be brought in a New Zealand court without the Attorney-General’s consent.  Such a consent was given in this case. The requirement for consent suggests that Parliament saw an alleged offence under the section as falling into a particularly grave or important category requiring a degree of oversight by the country’s senior legal officer.

[27]     The provisions of s 98E also require consideration. That section provides:

98E      Aggravating factors

(1)       When determining the sentence to be imposed on, or other way of dealing with, a person convicted of an offence against section 98C or section 98D, a court must take into account—

(a)       whether bodily harm or death (whether to or of a person in respect of whom the offence was committed or some other person) occurred during the commission of the offence:

(b)       whether the offence was committed for the benefit of, at the direction of, or in association with, an organised criminal group (within the meaning of section 98A(2)):

(c)       whether  a  person  in  respect  of  whom  the  offence  was committed was subjected to inhuman or degrading treatment as a result of the commission of the offence:

(d)       if   during   the   proceedings   concerned   the   person   was convicted  of  the  same  offence  in  respect  of  2  or  more people, the number of people in respect of whom the offence was committed.

(2)       When determining the sentence to be imposed on, or other way of dealing with, a person convicted of an offence against section 98D, a court must also take into account—

(a)       whether  a  person  in  respect  of  whom  the  offence  was committed  was  subjected  to  exploitation  (for  example, sexual  exploitation,  a  requirement  to  undertake  forced labour, or the removal of organs) as a result of the commission of the offence:

(b)       the age of the person in respect of whom the offence was committed and, in particular, whether the person was under the age of 18 years:

(c)       whether the person convicted committed the offence, or took actions that were part of it, for a material benefit.

(3)       The examples in paragraph (a) of subsection (2) do not limit the generality of that paragraph.

(4)       This section does not limit the matters that a court may take into account when determining the sentence to be imposed on, or other way of dealing with, a person convicted of an offence against section

98C or section 98D.

[28]     The factors appearing in s 98E(1)(a), (b) and (c) are likely to arise in the context of organised human trafficking of a type at which the protocols discussed in Chechelnitski are aimed; that is, that they relate to what might be termed “high end” offending.   I accept of course that a list of aggravating factors cannot of itself be determinative and that, by definition, the underlying offence will not necessarily incorporate any of those aggravating factors.

[29]     I return to the language of s 98C itself.   The issue for determination is whether the expression “unauthorised migrant” appearing in that section, as defined in s 98B, is sufficiently wide to catch a person who, although in possession of all the documents required under the law to gain lawful entry into New Zealand, has obtained one or more of those documents in consequence of false or misleading information.

[30]     Following the enactment of the Crimes Amendment Act 2002, the question did not call for an urgent answer.   That was because cases in which, as here, an apparently valid visa had allegedly been obtained by the provision of false or misleading information could be the subject of a charge laid under s 142(1)(eb) of the Immigration Act.   Mr McCoubrey acknowledged that, had that subsection remained in force, Ms Konsaijan would probably have been charged under it.  The difficulty for the Crown is that the section has been repealed and re-enacted, with amendments, in s 343(1) of the Immigration Act 2009. That subsection provides:

343     Aiding and abetting

(1)      Every person commits an offence against this Act who,—

(a)       for  a  material  benefit,  aids,  abets,  incites,  counsels,  or procures any other person to be or to remain unlawfully in New Zealand or to breach any condition of a visa granted to the other person; or

(b)       whether in or outside New Zealand, and whether or not the other person in fact enters New Zealand, aids, abets, incites, counsels, or procures any other person to unlawfully enter New Zealand (by arriving in New Zealand in a manner that

does not comply with section 103 or by arriving in New Zealand without holding a visa where the other person requires a visa to travel to New Zealand),—

(i)        knowing  that  the  other  person’s  entry  into  New

Zealand is or would be unlawful; or

(ii)      being reckless as to whether the other person’s entry

into New Zealand is or would be unlawful; or

(c)      whether in or outside New Zealand, aids, abets, incites, counsels, or procures any other person to complete a document in a manner that the person aiding or assisting knows to be false or misleading in any particular, being a document required for the purposes of—

(i)        section 98 or 103; or

(ii)      any application or request (whether by that person or by another person) for a visa or entry permission, or any expression of interest in a visa; or

(iii)      any request for variation, waiver, or cancellation of the conditions of a visa; or

(iv)      any appeal or application in the nature of an appeal to the Minister or the Tribunal; or

(d)      aids, abets, incites, counsels, or procures any other person to be or to remain unlawfully in New Zealand or to breach any condition of a visa granted to the other person under this Act.

...

[31]     Unfortunately s 343(1)(b), whilst largely reproducing s 142(1)(eb)  of the

1987 Act, omitted the words “or otherwise howsoever” which appeared in the former section.  It was those words which supported prosecutions of the present type under the former Act.  Mr McCoubrey advised the Court that, in the result, persons who have been party to the falsification of documents submitted to Immigration New Zealand for the purpose of obtaining a visa are no longer chargeable with an offence that carries a term of imprisonment unless they are caught by s 98C of the Crimes Act.  Section 343(1)(c)(ii) of the Immigration Act 2009 carries maximum penalty of a fine of $5,000.

[32]     Accordingly, by reason of what may well be a drafting oversight, the Crown has been driven to lay charges under s 98C of the Crimes Act, which would not have been laid had s 142(1)(eb) of the Immigration Act 1987 remained in force.

[33]     It goes without saying that the intention of the legislature, when enacting s 98C, must be determined as at the date of enactment, without reference to the practical legislative predicament that has now arisen.   Although in former times ambiguities in penal statutes were generally resolved in favour of the accused, there is now general agreement that such provisions are not exempt from ordinary purposive construction principles.  In R v Karpavicius the Privy Council determined an appeal from the New Zealand Court of Appeal on the question of the proper

construction of s 6(2A) of the Misuse of Drugs Act 1975.7   That section provided for

sentences of 14  years’ and 10  years’ imprisonment respectively for conspiracies involving class A and class B drugs.   Section 6(2A)(c) provided for a sentence of seven years “in any other case”.  The Court of Appeal held that the words “in any other case” included not only class C drugs but also cases where it could not be proved which class of drugs was involved.  The Privy Council dismissed the appeal. Lord  Steyn,  writing  for  Their  Lordships,  outlined  the  relevant  interpretation

principles:8

[15]     Their  Lordships  are  content  to  assume  that  linguistically  the arguments are finely balanced. It may be right to conclude that on a purely textual view the words [(2002) 19 CRNZ 609, 615]“in any other case” are capable of bearing either the interpretation put forward by counsel for the appellant or the interpretation adopted by the Court of Appeal, which before the Privy Council was supported by the prosecution. In a more literalist age it may have been said that the words of s 6(2A)(c) are capable of bearing either a wide and narrow meaning and that the fact that a criminal statute is involved requires the narrower interpretation to be adopted. Nowadays an approach concentrating on the purpose of the statutory provision is generally to be preferred: Cross, Statutory Interpretation (3rd ed), 1995, pp 172-175; Ashworth, Principles of Criminal Law (3rd ed), 1999, pp 80-81. This is reinforced by s 5(1) of the Interpretation Act 1999 [New Zealand] which provides that the meaning of an enactment must be ascertained from its text and in the light of its purpose.

[16]      The reasoning of the Court of Appeal has the virtue that it inquires into the circumstances in which the Legislature used the words “in any other case”, and what the object was which the Legislature had in mind. Given the scheme and structure of the legislation it is to be inferred that the Legislature aimed to create a comprehensive system of control of drugs with no obvious gap. But, as already pointed out, on the appellant’s interpretation there are significant gaps, resulting in the spectre of the acquittal of criminals who undoubtedly dealt in controlled drugs. An interpretation which requires the guilty to go free tends to bring the law into disrepute and to undermine public confidence in the administration of justice. Such a result is avoidable

7 R v Karpavicius [2004] 1 NZLR 156 (PC).

8 At [15] and [16].

in this case by interpreting the words “in any other case” in a sense which enables s 6(2A)(c) to operate additionally as a residual category. Such an interpretation  ascribes  to the  words,  in their  context,  a  perfectly natural meaning. And it is better suited to the purposes and policies underlying the legislation than the narrower interpretation.

[34]     In the present case, adopting a literal interpretation of the definition of the expression “unauthorised migrant”, it cannot be said that the provisions of s 98C are engaged.  That is because the complainants each presented themselves at the border with valid passports and valid visas which entitled them to enter New Zealand lawfully.  To accede to the Crown argument would be in effect to rewrite the definition of the term “unauthorised migrant” by adding at the conclusion of the definition  the  expression  “having  regard  to  all  the  circumstances  in  which  that person  sought  entry”  or  some  similar  provision.     The  question  is  whether Parliament’s legislative purpose calls for such an approach.  In my view it does not, for several reasons.

[35]     First, the circumstances surrounding the enactment of s 98C are clear enough. The section represents part of Parliament’s response to its international obligations as discussed in Chechelnitski.  It is aimed at migrant smuggling properly so called.  I consider that Parliament deliberately defined the term “unauthorised migrant” as being a person who is not in possession of all the required documents to enable lawful entry in order to cover the type of case at which the legislation is aimed – namely persons who seek to enter New Zealand with false papers (usually a false passport) or those who arrive with no documents at all (such as persons claiming to be refugees who have deliberately destroyed their documentation).  Grave offending of that type is plainly caught by the definition, and so it is unnecessary to strain the language of the definition in order to achieve Parliament’s clear intention.

[36]     Second,  the  aggravating  features  listed  in  s  98E  are  for  the  most  part consistent with an intention to catch organised human trafficking rather than visa irregularities of the type that allegedly occurred here.

[37]     Third, the requirement for the consent of the Attorney-General to the laying

of any charge under s 98C suggests that it was Parliament’s intention to catch only

cases of sufficient gravity to justify the expense and inconvenience of requiring oversight by the senior law officer of the Crown.

[38]     Fourth,  at  the  time  the  enactment  of  s  98C,  Parliament  also  enacted s 142(1)(eb) of the Immigration Act 1987 and so must be taken to have been aware that  cases  of  the  present  type  could  be  prosecuted  under  the  Immigration Act. Accordingly there  is  no  legislative  gap  of  the  sort  which  was  determinative  in Karpavicius.

[39]     Fifth, if the Crown argument is correct, then s 98C would apply in any case where an apparently valid visa was liable to be set aside or cancelled on the basis of any irregularity, however small.   On the Crown case, it is not sufficient to be in possession of all the documents required by law for a person’s lawful entry into New Zealand; the circumstances of the case must be such that there are no grounds for cancellation or withdrawal of those entry documents.  In my view, it is unlikely that Parliament intended to place any person in that invidious position, given the severity of the prescribed sanction.

[40]     The two cases to which I have been referred, Chechelnitski and Setiadi, both involve admittedly false passports, so the elements of s 98C were plainly made out in each instance.   Interestingly, Mr Setiadi pleaded guilty both to four charges under s 142(1)(eb) of the Immigration Act 1987 and to four charges under s 98C of the Crimes Act 1961.   The Court is unaware of the circumstances in which separate charges were laid.

Conclusion

[41]     For the reasons discussed, I concluded that it is not appropriate to place a gloss upon the plain language of the definition of the term “unauthorised migrant”. The definition means what it says.  It is confined to cases of persons who are not in possession of all of the documents required to enable that person lawfully to enter New Zealand.

[42]     Until 2009, that outcome left no legislative lacuna (indeed the former s 142 remained in force until 29 November 2010 when the 2009 Act came into force).  The

ordinary run of cases could be prosecuted under s 142 of the former Immigration Act (which had extra territorial effect), whilst the most serious cases falling within s 98C and  sufficiently  grave  to  justify  the  consent  of  the Attorney-General,  could  be prosecuted under the Crimes Act.   The  fact  that  an  apparent  drafting  oversight appears to have left the Crown without an Immigration Act remedy cannot alter the proper interpretation of s 98C of the Crimes Act because legislative purpose must be determined as at the date of enactment.  The answer would appear to lie in a further legislative amendment.

[43]     Accordingly, I held that the evidence to be relied upon by the Crown did not bring the case within s 98C.   It was against that background that Mr McCoubrey advised the Court that the Crown proposed offer no evidence.   Mr Konsaijan’s discharge followed accordingly.

Consequential matters

[44]     Following upon my oral ruling, Mr McCoubrey advised the Court that it was likely that he would receive instructions to ask me to refer an appropriate question of law for the opinion of the Court of Appeal pursuant to s 381A of the Crimes Act

1961.  He advised that the proposed question would be along the following lines:

Whether a person who has entered New Zealand on a visa for purposes other than that for which the visa was originally sought, is or can be an authorised migrant for the purposes of s 98C of the Crimes Act 1961.

[45]     Section 381A imposes a 10 day time limit from the date of delivery of these reasons within which the Crown may make an application for an order referring a question of law for the opinion of the Court of Appeal.   I have not heard from Mr Lance  on  the  point  but  can  indicate  in  a  preliminary  way  that  I  would  be sympathetic to an application for the referral to the Court of Appeal of an appropriately-framed question of law.

C J Allan J