Bin Radimin v R; Bin Zakhria v R

Judgment 1HOEBEN CJ at CL: Offences and sentences Each of the applicants was charged that they "facilitated the bringing or coming to Australia of a group of at least five persons, namely a group of 23 persons, who were non-citizens and who have or had no lawful right to come to Australia and they each did so reckless as to whether the said 23 persons had, or have, a lawful right to come to Australia" contrary to s233C of the Migration Act 1958 (the Act). 2On 12 April 2012 the trial commenced before Charteris DCJ and on 15 May 2012 the jury returned verdicts of guilty. On 25 May 2012 his Honour sentenced Agus Bin Radimin to 5 years and 6 months imprisonment with a non-parole period of 3 years and 3 months and Sahdan Effendi Bin Zakhria to 5 years imprisonment with a non-parole period of 3 years. 3Both applicants seek leave to appeal from their conviction. The grounds for each appeal are in essence the same, but in relation to the first ground, worded differently. 4In the case of Agus Bin Radimin (Bin Radimin) the grounds are: Ground 1: The trial judge erred in his directions to the jury in that the direction as to the accused's knowledge as to the ultimate destination of the voyage was not sufficient. Ground 2: The trial miscarried as the summing up by the trial judge was unbalanced and unfair. 5In the case of Sahdan Effendi Bin Zakhria (Bin Zakhria) the grounds of appeal are: Ground 1: The trial miscarried as the judge erred in failing to direct the jury it must be satisfied beyond reasonable doubt that: (a) The accused intended that the five or more persons be brought to a destination that was a part of Australia; and (b) That the accused knew the destination was part of Australia. Ground 2: The trial miscarried as the summing up by the trial judge was unbalanced and unfair. 6Bin Radimin also seeks leave to appeal against his sentence. Ground 3: The sentence is, in all the circumstances, manifestly excessive. Bin Zakhria does not appeal against his sentence since this was the minimum period of imprisonment mandated by the Act (Karim & Ors v R [2013] NSWCCA 23). Crown case and evidence at trial 7On 4 November 2010 HMAS Larrakia received notification that a vessel was beached on Browse Island and was tasked to respond. Browse Island is part of Australia and is located about 181 kms off the coast of Western Australia. The vessel received the identification name Suspected Irregular Entry Vessel (SIEV) 207. 8SIEV 207 was carrying 23 passengers. Twenty two were from Afghanistan and one was from Pakistan. There were two crew members (the applicants) who were Indonesian. The beached vessel was a wooden fishing vessel, about 15 to 20 metres in length. The only navigational equipment located was an army style handheld magnetic compass which was in the wheelhouse. No maps or GPS were located. There was no fishing equipment located. 9The Crown case was that the 23 passengers left at night from a remote beach on Lombok in two small vessels. After travelling in those small vessels for about an hour, they met a larger vessel which they boarded. This vessel had two or three Indonesian crew, who were not the applicants. This larger vessel travelled for about 24 hours and in the middle of the night, met SIEV 207. 10Only the applicants were on SIEV 207 when the passengers arrived. They were described in the evidence as the "older man" or "the captain" (Bin Radimin) and the "younger man" (Bin Zakhria). The two vessels were next to each other for about an hour. While passengers were transferring from the larger vessel to SIEV 207, the crews from the two vessels talked. 11Seven of the passengers gave evidence. Each was a passenger intending to travel to Australia. Each of them had no lawful right to come to Australia. One of the passengers gave evidence that while the crews from the two vessels talked, he heard the words "Australia", "International waters" and "federal police". These words were said in English. 12After about an hour SIEV 207 began travelling, although for the first day it was towed by the larger vessel. After the larger vessel departed, SIEV 207 travelled for four or five days and nights. Bin Radimin's major role was to steer and control SIEV 207. Bin Zakhria on occasions assisted him, but mainly prepared food and provided the passengers with water and tea. 13After about four or five days, SIEV 207 got "lost". When Bin Radimin tried to change direction, Bin Zakhria said "no", used the words "federal police" and pointed to the sky. Bin Radimin said that when he tried to change direction, one of the passengers hit him with a torch. 14There was evidence from the passengers that each of the applicants was heard to use the word "Australia" on multiple occasions during the voyage. Bin Radimin was heard to say both "Australia" and "Ashmore Reef". These words were said in English. 15Eventually, after seeing some lights and heading towards them, SIEV 207 landed on the sand at Browse Island. 16It was the Crown case that the evidence of these words and phrases spoken by the applicants, together with the circumstances of the voyage, including the absence of navigation equipment, gave rise to an inference that they had knowledge of the purpose of the voyage and therefore an intention to, by their acts, facilitate the bringing of the passengers to Australia. The case for the applicants 17The case for both the applicants was that they did not know that they were going to Australia and did not intend to do so. Bin Radimin gave evidence, but Bin Zakhria did not. 18Bin Radimin's evidence was that he was born in East Java, spoke Javanese and Indonesian, but did not speak Indonesian well. He did not complete schooling beyond primary school. Before boarding the SIEV 207, he worked in various occupations including farming, fishing and labouring. He had not captained a boat before. He was offered a job at Benoa Beach "taking people on a holiday" and was paid five million Rupiah in advance. He said that he boarded a small boat that took him to a larger boat. He said that his role on the larger boat was to steer. He said that he took a course of 120 degrees towards the southeast and northeast. 19He denied any knowledge that SIEV 207 or the passengers were heading to Australia. He had never said any English words while on board SIEV 207. He had never been out of Indonesia previously. He had limited knowledge of geography. He did not have a passport or visa. He did not know he was coming to Australia. 20Bin Zakhria relied upon his Department of Immigration and Citizenship (DIAC) interview, which took place on Christmas Island on 14 November 2010. The interview was conducted with the aid of an Indonesian interpreter. No caution was administered, but he was told that the information was "needed" and that truthful answers were "expected". 21The effect of that interview was that he was born in 1992. He finished grade five at primary school. He worked as a labourer. His English was poor. He took the job because he needed work. He was told to take passengers to cruise around and see the sea around Bali for 10 days. If he knew the intention was to come to Australia, he would not have agreed. 22He had been in Bali for one week when he was offered the job. He was paid 2.5 million Rupiah. He did not know why Australia was chosen as the destination. The person who paid him was on board when the passengers arrived, but he did not know his name. Until this job, he had not met Bin Radimin. He did not know where to go, but the passengers told "us where to go". APPEAL Ground 1: The trial judge erred in his directions to the jury in that the direction as to the accused's knowledge as to the ultimate destination of the voyage was not sufficient. Ground 1: The trial miscarried as the judge erred in failing to direct the jury it must be satisfied beyond reasonable doubt that: (a) The accused intended that the five or more persons be brought to a destination that was a part of Australia; and (b) That the accused knew the destination was part of Australia. 23The offence of which the applicants were convicted arises under s233C of the Act. It provides: "233C Aggravated Offence of People Smuggling (at least 5 people) (1) A person (the first person) commits an offence if: (a) the first person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of at least 5 persons (the other persons); and (b) at least 5 of the other persons are non-citizens; and (c) the persons referred to in paragraph (b) who are non-citizens had, or have, no lawful right to come to Australia. (2) Absolute liability applies to paragraph (1)(b). (3) If, on a trial for an offence against subsection (1), the trier of fact: (a) is not satisfied that the defendant is guilty of that offence; and (b) is satisfied beyond reasonable doubt that the defendant is guilty of the offence of people smuggling; the trier of fact may find the defendant not guilty of an offence against subsection (1) but guilty of the offence of people smuggling, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt." 24By way of further background, towards the end of the trial, an application was made by counsel for Bin Radimin for a specific direction to be given by the trial judge to the jury. "DAVID: That is that I have a copy of Zahra DCJ's written directions at law which I have just marked the point where I would ask that that other direction be made, but the other matter is the issue as to whether or not the Crown must also prove not only that the intention was to bring them to an island but to bring them to Australia. I say in this case it's now become relevant, because the Crown's case is there is much reference to Ashmore Island, that therefore it enlivens the need for the prosecution to not only prove if they are suggesting that the accused were endeavouring to go to Ashmore Island that they must prove that the accused also knew that Ashmore Island was a part of Australia. I make that submission ..." (AB 1048.36) "DAVID: Yes it is intention and my submission is, and I think that the Crown would clearly agree, that if it meant to do something the accused must know, it's not just intent - it's not just simply the physical facilitation, there must be that mental element of knowledge to have had that intention. You can't intend something if you don't know it. HIS HONOUR: If they intended to facilitate bringing the people to Australia and they did, where they hit on the continent is irrelevant. Is that - DAVID: That's correct, your Honour, but for abundant caution, I am suggesting that because we have the issue raised that there's been lots of references to Ashmore Reef, and that the accused, or I speak for my client, but the references to the accused or to Ashmore Reef and that he's supposed to have known about Ashmore Reef, whether - it may well be the jury could reject all about that he knew anything about Australia, but they might think Ashmore Reef is quite a specific thing to say. I'm asking that - HIS HONOUR: I'll hear submissions on that, I understand what you are saying to me." (AB 1049.40) 25His Honour rejected that submission and said: "HIS HONOUR: ... My comfortable view about the law is that a prosecution must prove that the accused intentionally facilitated the bringing to Australia of the group. The intention that has to be established by the prosecution is the intention to facilitate bringing them to Australia, no particular point in Australia. If the jury are satisfied beyond reasonable doubt he facilitated bringing them and intentionally did so, in that, he meant to bring the group to Australia, it doesn't matter whether he was intending to go to Ashmore Reef and ended up in Browse Island or ended up in Perth or ended up on Bondi Beach. That's the direction I'll be giving the jury if that assists. ..." (AB 1268.46) 26In fact the direction which his Honour gave was: "HIS HONOUR: So that first element, members of the jury, is that the accused facilitated the bringing or coming to Australia of a group of five or more people ... The other matter I tell you in relation to that essential element is that Browse Island is part of Australia. Browse Island is said in the evidence to be the name of the island which the boat eventually came into contact with. ... If you are satisfied beyond reasonable doubt of that first essential element that the accused facilitated the bringing or coming to Australia of a group of five or more people, you then consider the second element. You might think to yourself that the first element does not appear to be in issue, that there was a facilitation of the bringing of the people to Australia. But the second element that the accused did so intentionally has formed the basis of many submissions by the legal representatives for the accused. An accused does an act intentionally if he meant to do it. In this case the accused "meant to do it" if he knew he was facilitating bringing the people to Australia, that is, that it was his intention. It is necessary for the prosecution to prove that the accused intended to facilitate the bringing or coming to Australia of a group of five or more people. ... The prosecution does not have to prove that the accused's intention was to facilitate the group to Browse Island. What the prosecution has to prove is that the accused's intention was to facilitate bringing the group to anywhere in Australia and in fact brought the group to Browse Island." (SU 10-11, AB 1565-1566) 27Later in the summing up, his Honour explained to the jury how intention and knowledge could be proved: "But intention or knowledge can be proved by having regard to the conduct of the person and the words uttered by the person in any conversation that was recorded. Seeking to prove the state of mind of the accused, the prosecution can put before you various circumstances, including evidence of acts and words of the accused. But if you find those acts occurred or words were spoken the prosecution can then invite you to draw an inference as to what the accused's intention was or what the accused's knowledge was. Under our system that is a permissible approach to prove the state of mind of an accused person. ... What is permissible is to look at what the person was doing and saying at the time and permit you, the jury, to draw an inference as to what that person's intention was." (SU 14-15, AB 1569-1570) 28The applicants submitted that the direction given by his Honour to the jury was correct insofar as it went, but that it was deficient in that it did not go far enough. The applicants submitted that given their alleged references (according to the passengers) to Ashmore Island, for the Crown to establish its case, it had to establish that they knew that Ashmore Reef or Ashmore Island was part of Australia. 29On behalf of Bin Zakhria, the submission was put in this way: "The Crown case depended on proving either: (a) The accused believed the passengers were bound for "Australia" (and therein facilitated their journey) and it did not matter where the boat ended up, or (b) The accused believed the passengers were bound for Ashmore Island and that the accused knew that Ashmore Island was part of Australia, but happened to land at Browse Island. In those circumstances the trial judge had correctly directed the jury in relation to the first proposition but not the second. His Honour had been asked to do so by counsel but had declined." 30The same submission was put by the applicants in another way. They submitted that the words attributed to them of "Australia" and "Ashmore Island" gave rise to two methods of proof: either belief that Australia was the destination or belief that Ashmore Island was the destination and that it was part of Australia. They submitted that it was open to the jury to use one and not the other to infer belief or knowledge and that it was open to the jury to reject reliance on the use of the word "Australia" (because of the lack of context). Instead, it was open to the jury to rely upon the use of the phrase "Ashmore Island" to infer belief as to the specific intended destination. They submitted that in that latter case, the jury should have been directed that it was necessary for the Crown to establish that the applicants knew that Ashmore Island was part of Australia. 31The applicants submitted that it was open to the jury to use the alleged use of the word "Australia" by them in one of two ways: Either to infer knowledge that Australia was the ultimate destination, or to infer knowledge that Ashmore Reef/Island was part of Australia. If it were the former - that they believed the ultimate destination of the passengers was Australia, irrespective of the use of the term "Ashmore Island", then the directions were sufficient. If it were the latter - and the jury did not know what to make of the alleged use of the word "Australia" by them, then the jury needed to be directed that they must be satisfied that, if they knew or believed the destination was Ashmore Island, they knew that Ashmore Island was part of Australia. 32The applicants noted that the trial judge did not have the benefit of the recent appellate decisions in PJ v R [2012] VSCA 146, Sunada v R; Jaru v R [2012] NSWCCA 187, Alomalu v R [2012] NSWCCA 255 and Zamudin v R [2013] NSWCCA 120. 33The applicants relied upon the observation of this Court (Macfarlan JA; Price and McCallum JJ) in Sunada v R: Jaru v R at [5]: "5 In their grounds of appeal against conviction filed on 3 May 2012, the appellants contended that the trial judge's direction was erroneous. On 29 June 2012 the Victorian Supreme Court delivered judgment in PJ v R [2012] VSCA 146, holding that proof of an offence under s 233C of the Migration Act requires proof that the accused intended that relevant persons be brought to a destination that was a part of Australia and that the accused knew was a part of Australia" (emphasis added). 34The applicants also relied upon the following statements from PJ v R (Maxwell P, Redlich and Hansen JJA): "5 For reasons which follow, we would grant leave to appeal and allow the appeal. For the applicant to be found guilty of the offence under s 233C, he must be shown to have intended that the relevant persons be brought to Australia. That is, he must have been aware that Australia was the intended destination." "44 Unsurprisingly, this definition of "no lawful right to come to Australia" is concerned with - and only with - rights of entry into Australia. It follows, in our view, that by requiring proof of the defendant's recklessness as to the absence of that lawful right, Parliament intended to require proof that the accused was "aware of a substantial risk" that none of the relevant persons had a lawful right to come to Australia. That is, the defendant must have turned his mind to the existence of that risk, in relation to that particular country, and decided, unjustifiably, to take the risk. On this view, the word "Australia" when used in para (c) does not mean "the intended destination of the voyage, provided that it is in fact part of Australia". It means a place known to the accused as Australia."(Emphasis added) 35The applicants also relied upon Alomalu v R. In that case the direction given by the trial judge was that the relevant intention would be proved if "the accused knew that he was helping to take people to Australia". McClellan CJ at CL (with whom Rothman and Adamson JJ agreed) said: "82 To my mind his Honour's direction was not sufficient to effectively isolate the issue that the jury had to determine. ... Although it was correct to instruct the jury that they must be satisfied that the appellant knew that he was helping to take people to Australia, the issue in this case was whether, although he knew the boat was going to Ashmore Reef, he knew that Ashmore Reef was a part of Australia. The emphasis in both Sunada and PJ was on the accused knowing that the intended destination of the voyage was a place known to the accused as Australia. His Honour's direction did not achieve that objective." (Emphasis added). 36On the basis of those statements of principle, the applicants submitted that the trial judge's direction to the jury was not sufficient. They submitted that given the evidence in the case, and the extensive references by passenger witnesses to their alleged use of the words "Ashmore Reef/Island" the direction by the trial judge needed to address the issue of the applicants having knowledge that Ashmore Reef/Island was part of Australia. 37The Crown challenged the applicants' submissions on two bases. The first was that the applicants' submissions depended upon a factual matrix which did not arise. The Crown submitted that its case never depended upon proving one of two alternative scenarios as suggested. It submitted that at all times its case was that the applicants' state of mind was that they intended to facilitate the bringing of the passengers to Australia. The Crown submitted that from a factual point of view, the first ground of appeal was not a live issue at trial. 38The Crown submitted that the evidence of the passengers to the effect that the applicants from time to time during the voyage used the words "Australia", "Ashmore Reef", "International waters" and "federal police" in the context in which those words were said, was compelling evidence as to their state of mind, i.e. that they intended to facilitate the bringing of the passengers to Australia. The Crown also noted that it was the applicants' case at trial that they did not at any time on the voyage use those words. 39The Crown submitted that if the jury accepted the evidence of the passengers (as they must have done), there was no basis to isolate, as the applicants sought to do on the appeal, the references to "Ashmore Reef/Island". The Crown submitted that there was no factual basis for the submission that the applicants may have intended to have facilitated a trip to Ashmore Reef/Island, but did not intend to facilitate the bringing of passengers to Australia. The Crown submitted that the fact that Ashmore Reef/Island was referred to, did not of itself give rise to a need for a direction of the kind suggested by the applicants, nor did it give rise to an alternative basis of liability for the Crown case. The Crown submitted that the context in which the words "Ashmore Reef/Island" were used was such that it was clear that the intent was to bring the passengers to Australia. 40The second basis on which the Crown challenged the applicants' submissions was that they were based on a wrong interpretation of the second element which needed to be established to make out an offence under s233C of the Act. The Crown submitted that to satisfy that second element, it was not necessary that the Crown prove "that the accused intended that relevant persons be brought to a particular destination and that the accused knew that was a part of Australia". The Crown submitted that the correct statement of the second element was that set out in The Queen v Ahmad [2012] NTCCA 1; 256 FLR 423: "2 The accused meant to facilitate the bringing of the passengers to Australia (fault element - intention)." 41The Crown noted that special leave to appeal to the High Court was refused in Ahmad on the basis that the Court was "not persuaded that there is any reason to doubt the correctness of the order made by the Court of Criminal Appeal" in relation to each of the proceedings sought to be appealed (Mahendra v The Queen; Ahmad v The Queen [2012] HCA Trans 249 at lines 486-488). 42The Crown submitted that such an approach was fully consistent with PJ, i.e., the intention of the applicants must relate to Australia. It followed that if an accused only intended to facilitate the bringing of passengers to some place which they did not know was Australia, he was not intending to facilitate the bringing to Australia of the passengers. That element as a matter of fact would not be satisfied. The Crown submitted that PJ did not create a different or additional element. It submitted that there could only be one fault element for each physical element and in this case the fault element was intention. 43The Crown submitted that PJ needed to be read in its proper context and if so read, was not authority for the proposition that for the necessary intention to be demonstrated under s233C(1)(a), the Crown must prove that the accused intended to go to a particular destination and that the accused must know the destination to which they were travelling was part of Australia. 44On the particular facts of Sunada, Alomalu and Zamudin for the necessary intention to be demonstrated under s233C(1)(a), a two stage level of proof was required, i.e. that the applicants intended the relevant persons to be brought to a destination and that the applicants knew that the destination was a part of Australia. That was because the evidence in those cases was to the effect that the accused intended to take the relevant persons to a particular destination, i.e. Ashmore Reef and Christmas Island. The Crown submitted that the effect of the evidence in this case was not that the applicants intended that the passengers be brought to a particular destination, but that they intended, in a general sense, that the passengers be brought to Australia. 45In order to resolve that issue, it is necessary to examine more closely the relevant evidence of the passengers concerning what was said and done by the applicants. Evidence of the passengers 46Only four of the seven passengers gave evidence relevant to this issue. MAG said that he only spoke with the "Indonesian crew" on the "last days". He said that he communicated with the older man, who told him that he had lost his way. This evidence was given: "After the - the older guy said we lost and he tried to turn the steering wheel in different direction, but I saw the younger crew member told him "no, no, no don't do that". I understood he was saying this is the Australian water and the police was come. So I - he make him to stop, not to turn the boat back." (AB 360.23) 47Later it was established that MAG had said "federal police" in English in that answer (AB 361.35). Under cross-examination MAG confirmed that he had heard the word "lost" used by Bin Radimin in English (AB 390.26, .41, .48). 48In cross-examination MAG said: "Q. Of course, the conversation we're talking about, that we're referring to, is a conversation in which you say the older crewman of the Indonesian crewmen said something about being lost and the younger of the crewmen said something apparently in reply to that. This is the conversation we're talking about isn't it? A. Yes. When the older guy said "Look we lost" and he tried to turn the steering wheel and the younger crew member said "no, no, no federal police so don't turn". HIS HONOUR: Q: Said "no, no, no" what was the rest of the answer about federal police? Said "no, no, no". A. No, no, no. Federal police" pointed above. Q. Federal police and pointed above? WITNESS: Yeah. COUNSEL: Q: When you say that pointed above are you saying it's this younger crewman, the younger of the Indonesian crewmen who pointed above did he? A. Yeah, he pointed above the air and he said "federal police is coming"." (AB 399.8) "Q. ... You tell us this morning that you saw the younger crewman pointing up in the air at the time he was saying these words. Is that right? A. Yes when he was trying to turn the steering wheel and he just pointed above and he said "federal police coming. That's why we understood"." (AB 399.46) 49SMD said that he could not speak the crew's language. His evidence relevantly was: "Q. ... Did you ever have any discussion with the older crew member about what you believed the intended destination of Australia was for the voyage? Did you ever discuss that with the older crew member? A. Myself, I didn't discuss this much or I didn't talk about this matter with him but I heard other boys, they were talking about a destination or going to Australia with him. I heard that." (AB 455.7) "Q. ... Mr D, we left off on Friday. I wanted to ask you a question. Did you ever hear any person on the boat use the word or say the word "Australia" during the whole journey on the boat? A. Yes, yes. Q. So are you saying yes you did hear somebody say the word "Australia" on the boat? A. Yes. Q. Can you tell us who you heard using or saying the word "Australia"? A. Yes I heard this from both the crews. And especially from the younger one and while we were there on the boat a group of us were sitting there and the young one was saying that after I spent my sentence, after I get arrested and spend my sentence then I will go back to Indonesia and the money that I'm getting from this journey, I will use it to get married ... Q. Did you hear anyone else say the word "Australia"? A. Yes and especially after a few days, after three days, that we got lost in the water and other people who were pointing out, like in the sign language, asking and pointing to the clock, to their wrist watch, and saying that where is Australia, what's happening, and you said that you would get us to Australia in about three days and what's happening, where is Australia. Q. So are you saying that the passengers were saying this? A. The passengers were speaking to the crew and questioning them when they would get to Australia. Q. Did you ever hear the older man say the word "Australia" himself? A. Yes. Q. Was it on one occasion or more than one occasion? A. On multiple occasions ... Q. Was that from the - near the beginning of the time that you first boarded the boat or was it at a particular time through the journey, or was it throughout the journey? A. We were speaking, actually we were speaking and also the other people were speaking the word "Australia" from the time we got on board saying that how is the people of Australia and how the flag of Australia look like and all about matters related to Australia were the focus of the conversations. ... Q. My question if I wasn't clear Mr D, was I'm only talking about this last boat, the last boat that you were on that came to Australia? A. Yes I'm talking about this last boat, that these two people are the crew. Q. Thank you. You have made mention a little while ago about some money I think you said being paid or a reference to money by the younger man. Did you hear him say anything about the amount of money? A. He was doing his hand like this but once I finish my sentence I would go to prison for one year, after that I would go and get married for this money, but he did not mention about the sum of money. Q. You mentioned that he did his hand like this, I think. Can you describe how he did his hand, how he moved his hand? A. He said like he - he - he crossed his hands like this, then he pointed with the index finger one, and this finger, saying that one meaning one year, and at the same time he was showing his finger around the ring saying that he would get married." (AB 492.6 - AB 493.45) 50In cross-examination, he said: "Q. So when you said this morning that the older man was actually or said the word "Australia" would you agree that he, in fact, just was using gestures? A. If he in relation to the nouns, it's very common everywhere Australia - the name of Australia is understood and he said the word "Australia" but when it comes to how many days, he would gesture by hands - by fingers." (AB 517.48 - 518.3) "Q. What I'm saying to you is you were asked a lot of times, "Did the crew talk about Australia" weren't you? A. Yes and I have replied that many times we were gesturing and responding about Australia. Q. Yes, there was a lot of times where you were gesturing and talking about Australia to passengers. That's correct, isn't it? A. Yes. Q. But you did not in your statement or telephone note, say anything about Australia, about the older person going to Australia, sorry using the word "Australia"? A. No, I just said my solicitor that this person, the older man, was talking about Australia and gesturing about Australia. Q. The older man. I'm suggesting to you that you - that this is what you said about the older man with Australia. Sorry, just excuse me. You see I am suggesting that you did not say anything at all about the older man using the word "Australia"? A. No, no I have said it." (AB 539.43 - 540.11) 51HAA gave evidence. He said: "Q. Mr A, did you ever hear the word "Australia" used on the boat during the five days and five nights you were on the boat? A. Yes I did. ... Q. Who did you hear say the word "Australia"? A. I heard once from the captain mouth, that he said Australia. Q. Did he say or do anything else when he said the word "Australia"? A. He was saying that Ashmore Reef. Q. Did you hear him say those words, is that what you are saying? A. I heard the words "Australia" and "Ashmore Reef" from him." (AB 660.15) "Q. Are you able to say at what point during the five days and five nights you were on that boat you heard the captain say "Australia" and "Ashmore Reef"? A. On the fifth day he pronounced the word "Ashmore Reef" and "Australia" and then we asked the - that Afghan passenger, what he was talking about." (AB 663.9) 52Under cross-examination HAA said: "Q. You told us earlier today that the older person had used the words "Ashmore Reef"? A. Yes. Q. And that he also used the word "Australia"? A. Yes. Q. You heard a lot of the passengers talking about Ashmore Reef didn't you through the course of the trip? A. No, not much. ... Q. Not much? What did you hear from the other passengers? A. Not much. Q. Did you hear them say "Ashmore Reef"? A. At that point of time in relation to Ashmore Reef when this man, specifically this man, when he said that "Ashmore Reef" then I asked from that Afghan who was speaking Indonesian language - I asked what is he talking about Ashmore Reef. Q. Can you answer yes or no. Did you hear passengers utter words: "Australia" or "Ashmore Reef"? A. No. Q. Never is that what your evidence is here today, is it? A. No. Q. So just to be clear that you never heard them say "Ashmore Reef" is that what you're telling us in court today? A. No. ... Q. So is what you're saying is that the only person who ever said "Ashmore Reef" or "Australia" was the older person? A. Yes. Q. So you never discussed this with any of the passengers on the way? A. I just said before, you know, that this word, I asked about this word, which was pronounced before from the Afghan man who would know Indonesian and he explained it to me ... Q. Would you agree then that you did hear the word "Ashmore Reef" from that Afghan man, those words from the Afghan man? A. When I asked him the question. Q. So now it's your evidence here today is it that as a result of you hearing it from the older man the term "Ashmore Reef", you then asked someone else? A. Yes." (AB 689.48 - 691.47) "Q. Now you told us this morning that you didn't hear any of the passengers talking about Ashmore Reef didn't you? A. No I did not. Q. So you did not hear them talk about Ashmore Reef, is that correct? A. Not until that captain pronounced the word "Ashmore Reef" then after that I asked from that Afghan man who knew Indonesian then he said Ashmore Reef. Q. Because I want to say to you that do you recall in your statement then some people were asking when we would arrive at Ashmore Reef. Do you recall saying that? A. The passengers you mean? Q. Yes. A. I hadn't heard it myself but if for example I had said it, that was one year and a half ago. I don't remember." "Q. I want to see whether you recall saying this: "Some people were asking when we would arrive at Ashmore Reef" then: "The passengers said the word "Ashmore Reef" to the crew and used fingers to point? A. Maybe I have said it. Q. Do you agree that that was correct at the time that that is correct? A. That's possible yes. ... Q. You also said this do you recall saying this to the officer when you made the statement: "We asked the crew why don't you take us to Ashmore Reef. The crew said they were instructed by a person in Indonesia to take us somewhere else." A. Yes I have said that. Q. That was the case wasn't it, the crew never suggested to the passengers to go to Ashmore Reef at all did they? A. You mean these two people? Q. I speak for the older person. I will rephrase that question. The older person never said at any stage that - sorry I withdraw that. You've heard from the passengers, didn't you, that in fact the crew didn't want to take you to Ashmore Reef? A. Yes. Q. It was the passengers who were the ones that were - I would suggest to you it was the passengers were the only ones that used the words "Ashmore Reef"? A. I had heard it from that man who knew the language but overall I was suffering from seasick and I was asleep. Q. So could it be fair to say that you were really relying on what the other man told you and not what you heard? A. If the statement which I given a year ago or something, I have forgotten many events." (AB 698.26) "Q. Looking back on this matter Mr A, could it be the case that in fact you were mistaken and that it was the fact that other people were using the words "Ashmore Reef" that made you think that the captain knew something about Ashmore Reef and used those words? A. No the captain a hundred percent I'm sure that he pronounced and said the words "Ashmore Reef". Q. You said also here today that you heard the person you refer to as the captain use the word "Australia"? A. Yes. Q. But you didn't say that in your statement did you? A. Whatever had been asked in relation to that statement I answered to that effect. Whatever hadn't been asked so I didn't respond to that effect." (AB 699.26) "Q. Because I'm suggesting that in fact one of the passengers hit him over the head? A. I did not see. ... Q. Scared of his predicament, scared of the passengers? A. No that was not true that as soon as he turned the boat around the younger man said "look Australia police". Q. See I'm suggesting that that just did not happen and it was the passengers who made the older man turn the boat around? A. No, that's not true because when we were talking, they were liaising about this dialogue whether to return or go to Australian destination." (AB 705.31 - 706.8) "Q. That when it became apparent to the passengers that the older man was lost, there was some lively discussion between or among the passengers over whether the boat should continue or the boat should turn back. That's correct, isn't it? A. Yes. Q. is it during this period, this time, that you say the older man said the word or the words "Australia" and "Ashmore". Is that right? A. Yes. Q. Now at that time when the older man appeared worried and, you say, said the words "Australia" and "Ashmore" or "Ashmore Reef" where do you recall, or if you can tell us, where do you recall the younger man or the younger Indonesian man? A. At that point of time when the elder man pronounced the word "Australia" and "Ashmore Reef" the younger one was standing in the end of the boat, we were there on the top of the roof." (AB 735.8) "Q. But you also told us yesterday that this younger man, as this was going on, did not say anything. That's what you told us wasn't it? A. You know everything did not happen in a split of a second but we turned around and the younger man, Indonesian young man, said "Australian police". Q. ... So you tell us, do you, that at the time that this younger man was waving and pointing that he also said some words which you recognised containing the words "Australia police" is that right or "Australian police"? A. No I clearly stated yesterday and you did not let me elaborate on it then you - you continued. Q. No I'm not asking you that Mr A. Are you telling us now - are you telling us now - that when the older man changed the direction of the boat that the younger man was standing at the back of the boat and that he waved and pointed and that at that time he said some words which included words that you heard as "Australia" or "Australian police". Is that what you tell us now? A. Yes he was waving and pointing towards the sky giving the impression that the Australian police is coming and we should not return. Q. ... You see all you understood Mr A, wasn't - all you heard and all you understood - were words in the language you thought might be Indonesian, which included words you understood which included "Australia" or "Australian police". That's right isn't it? A. The first time he said "Australian police", second time he said "federal police". First time I heard him federal police, the word federal I heard from him." (AB 736.1) "Q. That there was this discussion between the passengers about whether to turn back or to continue; that's right isn't it? A. Yes. Q. And this is also the time you tell us that you heard - you say you heard the older man say the words "Australia" and "Ashmore Reef", that's right isn't it? A. Yes. Q. And throughout all this time the younger man was standing at the back end of the boat, that's right isn't it? A. Yes. Q. And that when the younger was standing at the back of the boat he said some words in a language you did not understand, waved with his hands and pointed; that's right isn't it? A. Yes. Q. And it was at that time you say the younger man said words to the effect of in English, or that you recognised as "Australian police" and you also heard him say "federal police"? A. Yes." (AB 736.49 - 737.19) 53The only other passenger to give evidence on this issue was AR. He said that at the time the passengers transferred from the larger boat onto SIEV 207, he heard a conversation between the Indonesian crew members on both boats. "Q. Did you see the crew members from the second boat speaking to the crew members from the third boat at this point in time? A. Yes. Q. Could you understand anything that was being said between the two crews or not at all? A. No those two crewmen were speaking to the other two crewmen and one of the crewmen of the second big ship was talking to them through one of the passengers who was my friend and who knew some of the language. Q. What I was asking you was whether when the two crews were speaking, were there any words that they were saying that you could understand? A. Yes I understood when they said "international waters"; I understood that. And also when they were using the word "Australia", I was under impression that they were speaking as to Australia." (AB 794.32) "Q. Mr R you were saying that this was a conversation or a communication that was happening when all four crew members, the two crew members from the second boat and the two crew members from the third boat and you and others were present together. Is that right? A. Yes. Q. You said earlier in your evidence that they said the words 'international waters" and "Australia". Do you recall that was what you said earlier? A. Yes. (AB 749.49) ... Q. At the time this communication's happening on the boat, at the time of transfer of the passengers, at that point in time, what did you see or hear the crew members from the third boat say or do, what did you see them say or do? A. I heard that they said they would take us to Australia and after some time they would get us to Ashmore Reef." (AB 795.49 - 796.32) "Q. At this time when this conversation is happening about international waters or Australia, did you see whether or not the crew members from the third boat said anything? Were they talking to the other crew members or not, or were they just standing quietly? A. Yes in their own language. ... Q. Yes, so the third large boat has come next to the second large boat. All the passengers have transferred onto the third boat and you said that there was a communication about international waters and Australia. I'm asking what happened next, what else happened? A. They said Australian police will take you." (AB 798.50 - 799.46) "Q. On the journey of five days and five nights in the boat did you at any stage hear either of the Indonesian crewmen say the word "Australia"? A. Yes. Q. Are you able to say which of the two Indonesian crew members you heard say the word "Australia"? A. I heard from both of them but I don't know how many times. Q. Over the journey of five days and five nights on that boat, did you at any stage hear either of the two Indonesian crew members say the words "Ashmore Reef"? A. Yes. Q. Are you able to say which of the two crew members you heard say the words "Ashmore Reef"? A. Both of them. Q. Are you able to say at which stage of the voyage over that five days and five nights? A. I don't remember the stage at what stage they said it. Q. Are you able to say whether it was just once or more than once? A. Many times." (AB 875.33 - 876.2) "Q. If I could ask that the Crown agree that on the last page of those notes, that the notes reflect "I can't remember if captain said Ashmore but heard other passengers ask captain about Ashmore Reef. Remembers captain holding up ten fingers". TRIAL ADVOCATE: That's what's recorded on the notes your Honour." (AB 895.21) 54Under cross-examination AR said: "Q. Along the way you had a number of conferences didn't you with the prosecution as we've discussed before? A. Yes. Q. You were asked, you agree, many times whether either of the crew used the words "Australia" and "Ashmore Reef"? A. Yes. ... Q. Well I am suggesting to you that there was a lot of focus on it, wasn't there? A. Yes. Q. I'm suggesting that you have in fact changed your version at times along the way? A. Just give me an example, for example. Q. I'm suggesting that at that some stages you have said that the older man has said "Ashmore Reef" and/or "Australia" and at other times you have expressed doubt about what he said? A. I have said it before and I'm telling you right now that I'm positive that they pronounced those words." (AB 903.9) 55AR was referred to the occasion when the passengers were transferring to SIEV 207 when a conversation took place between the two Indonesian crews. AR maintained that certain words were used in the conversation between the crew members: "Q. Mr R you're telling us are you, that in this conversation involving one or more of the crew from the second boat, the second large boat, the boat that took you to Australia, was conducted in a language that you did not understand, other than two words "international waters". Is that what you're saying to us? A. Yes. No there - no there were three words. One was "international water", the second was "federal police" and the third was "Australia". (AB 917.35) "Q. ... Nevertheless Mr R you tell us in court today do you that you have a quite distinct recollection of hearing one of these crew members, or use the words or say the words in English "international waters"? Is that what you tell us? A. I'm not sure about my memory but I am positive that he said "international waters"." (AB 920.19) 56In re-examination AR said: "Q. And then you were further asked about when you had heard the word "Australia" and you said that you were transferring from the second boat to the third boat initially and you said "when we transferred to the third boat the crewmen of the second boat pointed to the crewmen of the third boat and said "these people are taking you to Australia" and these people pointed fingers at their chests and said "we are taking you to Australia". Do you remember giving that evidence? A. Yes. Q. Who were the people that you were saying were pointing their fingers at their chest and saying "we are taking you to Australia"? A. The elder man." (AB 1019.30) 57As can be seen from the above extracts of evidence, but which was more obvious in cross-examination on other issues and in counsel's submissions at trial, the credibility of these witnesses was seriously challenged. Discrepancies between their oral evidence and what they had said in statements was highlighted. The limitations of the above evidence was also stressed, i.e., that the passengers did not speak Indonesian and that communication took place by the use of a few English words and gestures. The limitations of this evidence was again stressed in proceedings in this Court. 58There is no ground of appeal to the effect that the verdict of the jury was unreasonable or cannot be supported having regard to the evidence. Accordingly, despite the imperfections in the evidence identified by counsel, the effect of the extracts of evidence set out above has to be assessed on the basis that it was accepted by the jury. The issue is whether that evidence gave rise to the problems identified in Sunada, Alomalu and Zamudin. 59What is clear from the extracts of evidence is that the references to Ashmore Reef/Island (which came from only two of the four passengers) were largely incidental and in context were used with other words such as "Australia". The preponderance of evidence was to the effect that the applicants were heard to use the word "Australia" and other expressions such as "federal police" in a context which allowed the jury, if it accepted that evidence, to conclude that the applicants intended to facilitate the coming to Australia of the passengers. In that regard, the characterisation of the evidence of these witnesses by the Crown should be accepted. 60This was not a case like Alomalu where the Crown conceded "there is no evidence that the appellant was told or otherwise had knowledge that Ashmore Island was part of Australia. That is as high as I can put it." As McClellan CJ at CL said in that case: "37 ... Accordingly, the most that can be established from the evidence is that the appellant was told that the passengers would be taken to Ashmore Reef. As was conceded by the Crown there is no evidence to establish that the appellant knew that Ashmore Reef was a part of Australia." 61In this case, there was the use of the word "Australia" on a number of occasions by the applicants which in context, together with other evidence, allowed the jury to conclude that the applicants intended to facilitate the coming to Australia of the passengers. The facts of this case accorded closely with those in Taru Ali v R [2013] NSWCCA 211. The reasoning of RA Hulme J at [60] - [62] is equally applicable to this case. 62On the facts of this case, the trial judge was not required to give the additional direction that it needed to be proved that the applicants knew Ashmore Reef/Island was part of Australia. The factual basis which would require the additional direction was not established by the evidence. It follows that the direction given by the trial judge was appropriate. In the case of each applicant, therefore, the first ground of appeal has not been made out. Ground 2: The trial miscarried as the summing up by the trial judge was unbalanced and unfair. 63The applicants submitted that the trial judge summarised the prosecution evidence at length and then indicated in one sentence that "you will note there was extensive cross-examination". The applicants submitted that this was the approach which was followed in relation to all of the prosecution witnesses. 64The applicants submitted that an important issue in the trial was the reliability of the passenger witnesses in general and that this reliability, and their credit, had been the subject of lengthy cross-examination of each of them. The applicants submitted that in such circumstances it was not sufficient for the trial judge to dismiss that cross-examination by saying "he was cross-examined extensively by Ms David and Mr Wallach. Each of them have taken you to what they submitted are the important parts of that cross-examination" (SU 37.5). 65Bin Radimin submitted that when his evidence was summarised by the trial judge, specific attention was given to the prosecution critique of his evidence. Bin Radimin accepted, however, that his cross-examination was treated in the same way by the trial judge as was the cross-examination of the prosecution witnesses. In relation to Bin Zakhria, he submitted that his Honour had not set out any of the detail of his case as disclosed in the DIAC interview. He noted that the interview had been tendered as an exhibit and there was no limitation on its use. Bin Zakhria submitted that in such circumstances its content necessitated some comment by the trial judge in order to properly summarise the defence case. 66The applicants accepted that a trial judge was not bound to discuss all the evidence, or to analyse all of the conflicts in the evidence, but submitted that "nevertheless, the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury" (Domican v R [1992] HCA 13; 173 CLR 555 at 560-561). 67The applicants also relied upon Healey v Regina [2006] NSWCCA 235 where Smart AJ (with whom McClellan CJ at CL and Rothman J agreed) said: "62 There is a substantial body of authority that a summing-up must put the defence case fairly and adequately to the jury. The jury must be given an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence. See Stokes v The Queen (1960) 105 CLR 279 at 284, R v Sukkar [2005] NSWCCA 54 at [93] and the cases there cited. ..." 68In summary, the applicants submitted that because the trial judge had unfairly emphasised the detail of the evidence of the witnesses for the Crown, and had not properly put the defence case, the summing up was unfair and unbalanced and resulted in a miscarriage of justice. This was so, notwithstanding the lack of complaint by counsel at trial. 69In order to assess the correctness of the applicants' submissions on this ground, it is necessary to set out in some detail the structure and content of the summing up. In doing so, it needs to be kept in mind that in submissions at trial, counsel for the applicants had set out in considerable detail contradictions and discrepancies which they said existed in the evidence of the passengers. The effect of the submissions was not so much to put forward a positive case on behalf of the defence, but rather to establish that the evidence relied upon by the Crown was so unreliable as to not be capable of establishing guilt beyond reasonable doubt. 70In the summing up (SU 3) his Honour gave the conventional direction concerning the jury's capacity to accept part of the evidence of a witness, but to reject other parts of the evidence of the same witness. He explained the distinction between the honesty of a witness and the reliability of that witness' evidence. Because of the issues in this case, that conventional direction was important. 71His Honour set out and discussed the elements of the offence which the Crown had to establish. Some of that part of the summing up can be seen at [26] and [27] hereof. His Honour then summarised the response by the defence: "The way the matter has been conducted before you by each counsel for the accused is that, consistent with the opening addresses that counsel gave to you at the start of the trial, each accused disputes that he intentionally facilitated the bringing or coming of the group to Australia. Each accused is not disputing that he was on the boat and that the boat came to Australia with twenty-three non citizens but each accused disputes element 2, that he had intentionally so facilitated, and as you have heard the submissions of counsel for the accused, there is no dispute as regards element 3 that five or more of the twenty three people were non citizens who had no lawful right to enter Australia. But, consistent with the opening address by counsel for each of the accused, element 4 is in issue: whether the accused has been shown beyond reasonable doubt to have known or believed that at least five of them had no lawful right to come, or else he was reckless as to the fact that at least five of them had no lawful right to come to Australia. Members of the jury as you can see the major source of the submissions by counsel for the accused, and the issues that appear to be in dispute in this trial, are those mental elements of whether the accused intentionally facilitated bringing the group to Australia and whether the accused knew or believed, or was reckless to the issue, that at least five of them had no lawful right to come to Australia. Those elements that you might think are in dispute concern proof of the mental awareness of an accused person. Members of the jury you are required in your fact finding to make findings of fact in relation to element 2 and element 4 as to the state of the mind of the accused at the time of the alleged conduct. ... But intention or knowledge can be proved by having regard to the conduct of the person and the words uttered by the person in any conversation that was recorded. Seeking to prove the state of mind of the accused, the prosecution can put before you various circumstances, including evidence of acts and words of the accused. And if you find those acts occurred or words were spoken the prosecution can then invite you to draw an inference as to what the accused's intention was or what the accused's knowledge was. Under our system that is a permissible approach to prove the state of mind of an accused person. In other words because we do not have the technology to examine the mind of a person and say, "This person had a particular intention or had particular knowledge at any particular time", what is permissible is to look at what the person was doing and saying at the time and permit you, the jury, to draw an inference as to what that person's intention was. As jurors you are entitled to draw inferences. ... In this case the prosecution has said to you that of course you will be satisfied of the mental elements 2 and 4: when you look at all of the evidence and have regard to all of the circumstances in which the accused was saying and doing things, you would conclude beyond reasonable doubt that the accused did have the intention and/or knowledge to which I have referred. In some cases circumstantial evidence might turn out to be thin and ambiguous and you could not place any reliance upon it; but in other cases circumstantial evidence may be strong and may be compelling. ... You may not, as a matter of law, find the accused guilty on a count unless you are satisfied beyond reasonable doubt that there is no reasonable explanation of the evidence other than the guilt of the accused. That is, when you look at the evidence as a whole relating to the charge, you should ask yourself the question: "Has the prosecution proven beyond reasonable doubt that there is no reasonable explanation or theory of the evidence consistent with the innocence of the accused?" ... If the prosecution seeks to prove an element such as one relating to the state of mind of the accused, by using circumstantial evidence, then that conclusion as to the existence of that state of mind of the accused must be the only rational inference available to be drawn on all of the evidence." (SU 13 - 17) 72The trial judge put the "duress" and "sudden or extraordinary event" defences of Bin Radimin to the jury and no complaint is made about that (SU 22 - 25). 73While it is true that his Honour did not set out the particular challenges made by the defence to the evidence of each passenger, he did provide a strong warning as to the unreliability of the passenger evidence generally, and specifically mentioned the language difficulties: "Now members of the jury in this case the prosecution substantially relies upon evidence given by persons who were passengers upon the boat and, members of the jury, when you think about the role played by the passengers, you could conclude that the passengers might reasonably be supposed to have been criminally concerned in the events that give rise to these proceedings. ... So the law of our country requires that I give you certain warnings and directions concerning the evidence of the passengers. I give such warnings in every case in which reliance is had upon a witness' evidence where that witness might reasonably be supposed to be criminally concerned in the events that give rise to the proceedings that are before the court. They are not given in this case because I have formed any particular view about the passengers, or that I have formed any particular view of the evidence of any passenger or witness. The need to give such directions arises because the courts have over many years accumulated a considerable amount of experience concerning reliability of evidence given by a witness who might reasonably be supposed to have been criminally concerned in the events that give rise to the proceedings before the court. That experience would not readily be known to general members of the public or members of the jury. That experience of the courts over many years has shown that the evidence given by a witness who might be considered to be reasonably involved in the conduct that brings the passengers to Australia - and the accused before the court - that such evidence is often shown to be unreliable. I do not intend to suggest however that such evidence is always unreliable. My purpose in giving these directions is to warn you that evidence of such a witness - and you will recall I am saying such a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to these criminal proceedings - that such a witness may be unreliable and you therefore should approach the evidence of such witnesses with caution in the way in which I will outline shortly. I am referring to each of the seven passengers when I give you this direction. There are no doubt many reasons why the evidence of such a person may be unreliable; and possible reasons may be that you may think it is natural that a witness, who might reasonably be supposed to have been criminally concerned in the events giving rise to these proceedings, might want to shift the blame from himself onto others or to justify his conduct and in that process the witness may construct untruthful stories; those stories might be to play down his own part in the activities and play up the part of others. ... There may be reasons why false evidence could be given by such a person. It is not for the accused to establish that reason as to why the witness is not to be believed. Experience of the courts has shown that once such a witness has given a version to the police inculpating an accused person he may feel locked into that version even if it contained inaccuracies, or even if it was substantially untrue. In relation to the evidence of such a witness a number of motives for being untruthful were explored; you should bear in mind that there may be unknown motives which cannot be explored in cross-examination. Therefore I say to you, members of the jury, when you assess the evidence of each passenger you must remember the warnings and directions I have just given you. I am not saying to you that the evidence of a passenger or any passenger or all passengers is unreliable; I urge that you treat their evidence carefully and approach it with caution. I also say this to you members of the jury about potentially unreliable evidence - and that relates to evidence that is led by the prosecution as regards the interpretation of gestures by the passengers. And as you are aware, on the prosecution's case, the witnesses were not able to speak Indonesian and the accused were not able to speak the Afghan language either. And so a number of the passengers have given evidence of their interpretation of certain communications they had with one or both of the accused. Now you must be cautious about that members of the jury, when you think about what I am saying to you. You should approach it with caution, you might think that is only common sense. Sometimes when people are seeking to communicate by gestures, one person might form the view that the person means certain things and he is wrong and the other person might also be mistaken. So you will approach with caution your interpretation of gestures and, similarly, you will approach with caution the evidence given by passengers as to whether there were words spoken in a language foreign to the language of the accused, in this case in English. You will recall it was suggested by some passengers that he and other individual passengers, not all of them, had heard certain words being uttered such as "Australia" or other words including "Ashmore Reef" and the like - I am not meaning to suggest all passengers gave the same evidence on the topic, they did not. But you would approach with some caution - it does not mean that you cannot accept the evidence - but you would approach it from a cautious approach as to whether that evidence was reliable and as to whether you could rely upon, for instance, a person who spoke the Afghani language understanding a word uttered in English by a person who spoke only the Indonesian language." (SU 26 - 29) 74In relation to the applicants' evidence, his Honour gave the conventional direction that even if their evidence were not accepted by the jury, it was still necessary for the Crown to prove its case and if there remained a reasonable doubt in accepting the Crown's case, there had to be an acquittal. His Honour also gave the conventional direction as to an accused choosing not to give evidence. His Honour referred to the DIAC statement which Bin Zakhria had given to the Immigration Authorities. In relation to that statement, his Honour said: "You will recall however, that Mr Bin Zakhria made those statements when he was not on oath or under an affirmation and he was not subject to cross-examination in the sense that ordinary evidence would be subjected to." (SU 31) 75His Honour gave a conventional direction as to the use which the jury could make of the good character of both accused. No criticism is made of those directions, except that his Honour did not summarise the evidence of the applicants. 76When his Honour came to the evidence in the prosecution case, he directed the jury that they could take into account that only seven of twenty three passengers had been called by the prosecution to give evidence. His Honour said: "Now members of the jury I am going to very briefly summarise to you the evidence in the trial, and it is going to be very brief." (SU 33) 77His Honour's treatment of the evidence of the four passengers who gave evidence as to intention is illustrative of his approach to the evidence of the passengers generally. In relation to MAG, his Honour recounted evidence which was uncontroversial. In relation to the contentious material, his Honour said: "He alleged that he had heard the younger of the crew utter the word "federal police." He described being on the island. Now members of the jury that's a brief summary of what he said in his evidence- in-chief. He was cross-examined extensively by Ms David and Mr Wallach. Each of them have taken you to what they submitted are the important parts of that cross-examination." (SU 37) 78In relation to SMD, his Honour set out the uncontroversial evidence. He made no reference at all to the evidence which was controversial and subject to challenge. His Honour said: "He was subjected to an identification process and purported to identify the two crew members that travelled on the boat with him to Australia. He also was cross-examined at length. Both counsel for the accused have taken you to portions of his evidence; you have regard to those submissions." (SU 38) 79His Honour set out the uncontroversial evidence of HAA. In relation to the evidence which was challenged, his Honour did not refer to his evidence in chief, but to the evidence which he gave under cross-examination. His Honour said: "His cross-examination continued. He said that the older man controlled the steering of the boat, by his feet on occasions. He also saw the older crew member and "his assistant" go into the engine compartment; on very rare occasions that assistant steered the boat. He did not hear the crew utter an English word, but he did hear the captain once say "Australia" and "Ashmore Reef". You have had a lot of submissions to you about that evidence and you will have regard to the submissions Ms David, Ms Crown and Mr Wallach made to you. He said that on the fifth day, as he understood it, the passengers became upset. He said he did not see any gestures. He thought the passengers were upset because they had lost their way. It was he who described the boat apparently changing course and then the younger crewman gesturing and pointing to the sky and the boat changed direction. It continued until about 2pm and later they saw some lights and they arrived at the island about 2am. They slept on the boat until 7am and with daylight they saw the other Indonesian fishing boats around. Again you will take into account his cross-examination." (SU 39) 80His Honour set out the uncontroversial evidence of AR. In relation to the controversial evidence, he said: "All the passengers were transferred to second big boat; there were two crew only on that boat. He alleged he heard certain words spoken in English by the crew, being "international waters" and "Australia". When I say by the crew he nominated one or other of the accused. He alleged that the final boat he was on for four days and some four nights and the boat arrived on the island about 11pm. He described the older man as driving the boat. He was cross-examined in detail. You will take into account all of that evidence." (SU 42) 81His Honour set out in detail the evidence in chief of Bin Radimin. His Honour said: "His allegation is that he was going to Bali to obtain work. He had never been the captain of the boat. He said he was walking around the beach looking for some work and a stranger approached him and offered him some work. He asked what type of work it was and the man said "You are taking people on a holiday." He said he did not understand the English word "holiday" and the man eventually said "You are taking people on a holiday just to look at the beautiful ocean around here." The man would not tell him his name and said to call him Bapak - he said that is a term you use for an older person. He thought his job was just to take the people on holidays around the area of Bali. He needed the money. He said the man said it would take ten days or so "just around Bali". He was given 5,000,000 Rupiah; the prosecution has submitted to you that such is a very substantial sum of money. You will recall that the accused said that he would be paid varying sums; sometimes he could go a week without working. I think I asked him whether he could earn more than 100,000 rupia in a week and, as I recollect, his evidence was he could not expect to earn that kind of money. ... So the prosecution, effectively, submit to you that he was given more than one year's salary in cash from a complete stranger, who did not even ask him whether he could steer a boat. The prosecution has put to you, effectively, that you will not believe Mr Bin Radimin's account. Ms David puts to you that you will accept that he had led a simple life - he is not a sophisticated individual. He was trying to do the best to earn money for his wife and children and he was "the innocent dupe" of the persons who had approached him. They are all the arguments you will weigh up, members of the jury. They are entirely matters for you as the jury." (SU 44 - 45) 82His Honour then set out in further detail the evidence of Bin Radimin as to how the voyage progressed and Mr Bin Radimin's denial that he had ever heard or used words such as "Australia", "Ashmore Reef" or "federal police". His Honour concluded the review of the evidence of Mr Bin Radimin by saying: "Members of the jury, he was cross-examined at length. You will take into account all of that material. You have heard what I have said to you about what use you can make of his evidence. It is a fact he was not obliged to submit himself for evidence." (SU 46) 83His Honour concluded his summing up as follows: "Members of the jury, the submissions will be strongly in your mind. I do not intend to repeat them. The prosecution says that it has established each of the elements beyond reasonable doubt and in particular has drawn your attention to the evidence that establishes, in the Crown Prosecutor's words, the elements of the mental state of each accused in carrying out what the Crown says is the offence. You will give such weight as you think is appropriate to the prosecution submissions. The prosecution submissions are particularly dismissive of Mr Bin Radimin's account that a stranger approaches him at a beach and offers him what - it is a matter for you - might be more than a year's salary in cash. You will remember though that Ms David made submissions to you that this is a simple person. He has not got his own passport. He is not aware of the wider world. He had not, according to him, met people from Afghanistan before. He had only very limited geographical knowledge. He did not know where he was going. She puts to you, effectively, that the true people smugglers "duped" him and of course they are "using" someone like him. He is just mere fodder to them - they send him off to Australia with currency which in our country is a small sum, hardly more than A$500, and he is expendable effectively. I do not know if that was the word she used but she was saying that he had been duped, he is a victim. He did not have the intent to bring these people to Australia, nor did he know or believe nor was he reckless that they did not have an entitlement to come to Australia. He had never had a visa himself; he had never had a passport himself and she urged upon you that the prosecution has failed to prove its case beyond reasonable doubt. She asked that you return a verdict of not guilty. You have heard detailed submissions from Mr Wallach today. He has submitted to you that he effectively had embraced a number of the submissions of Ms David. She had drawn your attention to the unreliability of the passengers. She drew your attention to the fact there was one passenger who told immigration that he had fought for six months in the Afghan army. When confronted in the witness box, he said, "Oh there must have been an interpreting problem." You will recall that the Crown then had access to the recording of the interview and had a new interpreter interpret it; and it did have some variations but it did not have a variation about him telling Immigration that he had been in the Afghan army for six months. Now all of those submissions have been made to you by Ms David; and Mr Wallach today in detail took you through a number of the witnesses. He put to you they are unreliable. As an example he said to you that one witness denied that he had said that he had an Afghanistan passport - he said the interpreter must have misinterpreted, that actually he had a "taskira", which is an identity card. In due course there has been tendered before you the interview and the police officer - the case officer - gave evidence that in that interview by that passenger he did mention the word "passport" and he never mentioned "taskira" or identity card. Now they are all matters for you. ... Do not think that I have sought to summarise all of the submissions. There are limits to a summing-up, and you are aware that if you wish to have any evidence re-read that can be achieved." (SU 47 - 48) 84I have set out parts of the summing up in considerable detail. I have done this to set out the basis for my conclusion that the summing up was not unbalanced in the way submitted. In particular, it is not correct that his Honour summarised the prosecution evidence at length and then briefly dismissed the defence case. On the contrary, as the analysis of the passengers' relevant evidence makes clear, if anything, his Honour only briefly dealt with those parts of the Crown case which were important to establish the mental state of the applicant. The summary of the competing cases at the end of the summing up highlighted the issues in the trial and the respective cases of the parties. 85I am not satisfied that the summing up of the trial judge was unbalanced in that it unduly favoured the prosecution case and did not fairly set out the defence case. A fair reading of the summing up simply does not support that submission. 86It is true, however, that his Honour did not go into the specific detail of the evidence of the passengers, either in chief or in cross-examination. That, however, does not establish that the summing up was unbalanced or that the respective defence cases were not put fairly so as to give rise to a miscarriage of justice. 87This issue was considered in Huynh v The Queen [2013] HCA 6; 295 ALR 624. The Court (French CJ, Crennan, Kiefel, Bell and Gageler JJ) said in relation to the trial judge's summing up of the defence cases: 45 ... his Honour drew attention to the criticisms made by each appellant of those parts of the evidence that were relevant to the case against him. What his Honour did not do was to deal separately with the case of each appellant, instructing on how liability might arise in each of the ways the case was put and reminding the jury of the evidence as it applied to each appellant's case. At the completion of the narrative review of the evidence, his Honour reminded the jury of the submissions of counsel. 46 The reasons of the Full Court contain a detailed analysis of the summing-up. There is no need to repeat that analysis in these reasons. Doyle CJ said that the trial judge's approach to summing-up the case in this respect was not "the usual approach" but that despite that circumstance it was adequate. In this Court, the appellants submit that the Full Court erred in so concluding. The failure to sum up the cases separately was said to be contrary to a requirement of the fair trial of multiple accused. The authority on which the appellants relied for this proposition was R v Towle. Street CJ, giving the judgment of the New South Wales Court of Criminal Appeal, said that, save for unusual cases, where two or more persons are being tried together: "it is the clear duty of the trial judge to separate for the jury's consideration the evidence properly relevant and material in the case of each, and to present the case made against each of the accused separately." 47 That statement was made in the context of a trial at which the evidence against each accused differed. This was not such a trial. With the exception of Sem's statement, all of the evidence at the trial was admissible against each appellant. There is no template for summing-up a case involving multiple accused any more than for a trial of a single accused. Doyle CJ was right to reject the submission that it was an error for the trial judge to depart from structuring his summing-up in "the usual way". 48 Doyle CJ considered that to have summed up the case for each appellant separately on each of the alternative bases of liability would have added considerably to the length and complexity of the charge. Huynh was critical of this aspect of his Honour's reasons. He submitted that the task of separately distilling the evidence against him would have added little time. The submission wrongly assumed that the evidence relevant to consideration of whether Huynh's liability had been established (whether as an aider and abettor, a party to a joint enterprise to murder or a party to an agreement to assault with the necessary foresight) was that of the witnesses who gave an account of the things Huynh did at the scene. The whole of the evidence (save for Sem's statement) was relevant to the consideration of Huynh's liability in each of the ways the case was left. 49 It was the responsibility of the trial judge to structure the summing-up in a way that he assessed would most effectively distil the issues for determination in each case and, to the extent that it was necessary to do so, to remind the jury of the evidence bearing on the determination of those issues. Given that the whole of the oral evidence was common to the three cases, and that many of the factual issues were common to liability in each case, the approach that his Honour adopted was one which avoided a deal of needless repetition. Critical to the appellants' separate cases were the suggested weaknesses in the evidence that implicated each as engaged in the assault on the deceased and in other acts of violence at the scene. The trial judge drew attention to these criticisms of the evidence and to their significance to the case against each appellant in the course of reviewing the evidence." 88Observations to similar effect were made by Wood J (with whom Gleeson CJ and Badgery-Parker J agreed) in Williams v R (1990) 50 A Crim R 213 at 214: "There is a risk that the real purpose of summing up has been lost. It is not to deliver an immaculate lecture, or even an explanation of legal principles and the philosophies behind them, for the benefit of the lay members of the community who are selected on juries. It should involve no more and no less than a clear and manageable explanation of the issues which are left to the jurors in the particular case before them. There is no need to venture beyond a clear statement of the relevant legal principles as they affect the particular case and against which they are to apply their decisions on the factual questions which arise. Simple and concise summings up which leave the jury in a position to come to a verdict upon a proper basis should be the aim. Two things should not be overlooked. The first is that by the time of the summing up the jury has had the benefit of addresses from the Crown and counsel for the accused which can be assumed to have focused on the factual issues, and advanced reasons for the jury concluding that the guilt of the accused either has or has not been proved beyond reasonable doubt. The second is that jurors are expected to apply their common sense and experience of life in assessing the evidence and deciding the factual issues. It should therefore not be necessary, certainly in routine cases, for there to be extensive reference to the evidence or the arguments advanced by counsel. Nor should there be any need to emphasise the obvious or to underline what really are matters of common sense. The aim of judges should be to identify and summarise simply and concisely for the jury the issues which arise in the trial, the legal principles to be applied to those and no other issues, and the relevant evidence, so as to ensure that the jurors direct their minds to the true questions to be decided before a verdict is reached." 89In my opinion, the summing up by the trial judge satisfied the criteria discussed in Huynh and Williams. The respective cases were accurately and fairly put to the jury after the jury had head detailed closing submissions from counsel directed to whether the two elements of the charge that were in dispute were proved beyond reasonable doubt on the evidence of the passengers whose evidence was the subject of direct challenge. In these circumstances, the jury would have been under no misapprehension as to the respective cases and as to the issues at trial. As the applicants properly conceded, counsel at trial did not submit the contrary. Whilst that is not determinative of whether there is an imbalance in a summing up, or a failure on the part of the trial judge to adequately and fairly put the defence case, in this case the fact that neither trial counsel sought redirections is at least strongly suggestive that there was not perceived to be a lack of balance in the summing up or that there needed to be a more elaborate reference to the cross-examination of the passengers in order that the defence case be put. 90One final matter ought be noted. In relation to the criticism that the trial judge should have said something about the contents of the DIAC interview of Bin Zakhria, each member of the jury had been provided with an individual copy of that interview. 91This ground of appeal has not been made out and I would not grant leave, pursuant to rule 4 of the Criminal Appeal Rules, for this ground of appeal to be relied upon. SENTENCE APPEAL Ground 3: The sentence was, in all the circumstances, manifestly excessive. 92The factual background to the sentencing of Bin Radimin has already been largely set out when reviewing the Crown case in the conviction appeal. Bin Radimin played a more senior role by being in control of the boat, whereas Bin Zakhria was mainly involved in preparing food for the passengers and supplying them with water and tea. Nevertheless, from time to time Bin Zakhria took over the steering of the boat. 93Bin Radimin came before the trial judge for sentencing on 25 May 2012. His Honour found that he knew that he was bringing illegal immigrants to Australia and undertook that task because of the substantial amount of money offered to him. His Honour was satisfied that he was motivated by financial advantage in accepting this role. His Honour was also satisfied that he was very much at the lower end of the people smuggling hierarchy. His Honour found that his superiors in the hierarchy of people smuggling considered the fishing boat and him as disposable items. 94In the absence of any evidence to the contrary, his Honour accepted that Bin Radimin was a person of good character and had no convictions in Indonesia. He was aged 35 at the time of the offending, whereas Bin Zakhria was aged 18. He was married with 5 children. 95His Honour identified two possible approaches to s236B of the Act which provides for a minimum head sentence of imprisonment for 5 years and a minimum non-parole period of imprisonment for 3 years. A challenge to that section of the Act being applied to offences contrary to s233C was rejected by this Court in Karim & Ors v R. 96Nevertheless, the application of s236B is not without controversy. In the sentencing proceedings his Honour pointed out that in the absence of authority, he would have arrived at an appropriate sentence in respect of Bin Radimin in the normal way, i.e. by taking account of all of the factors and then by a process of intuitive synthesis formulating a sentence. If that sentence were below the minimum specified by s236B he would have increased the sentence so as to reach the minimum level specified in the section. 97His Honour noted, however, that there was authority to the contrary (Bahar v R [2011] 255 FLR 80 and R v Karabi [2012] QCA 47). The effect of that authority is that s236B in effect provided that the minimum sentence for an offence under s233C was 5 years and the maximum was 20 years. Accordingly, an offence in the lowest range would attract a sentence of 5 years imprisonment and an offence in the most serious range or category would be accommodated by a maximum 20 years. It follows that the start point for any sentence imposed pursuant to s236B would be imprisonment for 5 years. His Honour, as he was bound to do, followed those authorities. I should interpolate at this point that those two cases have been followed in a series of later cases - R v Nitu [2012] QCA 224; R v Latif; Ex parte CEPPP, [2012] QCA 278; R v Selu; Ex parte CDPP [2012] QCA 345 and Karim v R to which I have already referred. 98By reference to those authorities, his Honour set out his reasoning as follows: "Therefore I start on the basis that five years is the penalty for the minimum category of criminal behaviour that responds to s233C. I conclude that Mr Bin Zakhria should receive that penalty. Mr Bin Radimin was shown to play the more senior role and was more experienced in life. Having regard to parity I would impose a sentence of five years and six months upon him. Section 236B requires a minimum period of three years. I think I should slightly increase the minimum period to reflect the greater head sentence that I am imposing upon Mr Bin Radimin." (Sentence 15) It was on that basis that his Honour imposed the sentence of imprisonment for 5 years and 6 months with a non-parole period of 3 years and 3 months on Bin Radimin. 99In challenging that sentence, Bin Radimin accepted that in order to make out a ground that a sentence is manifestly excessive, it was necessary for an applicant to show that the sentence was unreasonable or plainly unjust (Vuni v R [2006] NSWCCA 171). 100Bin Radimin submitted that the only difference between the function performed by him and Bin Zakhria was that he steered the boat and was older, otherwise there was no relevant distinction. He also submitted that by comparison with other cases which involved sentencing for offences contrary to s233C, this involved the smallest number of passengers, i.e. 23 and therefore the lowest level of criminality. The nearest case was R v Selu where the number of passengers involved was 46. He also relied upon the findings of the sentencing judge to the effect that both he and Bin Zakhria were at the bottom of the people smuggling hierarchy and had been regarded by their superiors as expendable. Consideration 101While one cannot help but feel considerable sympathy for both applicants, given the heavy sentences prescribed by s236B of the Act, and the considerations identified in Karim v R by Allsop P at [116] and [121], it is not possible to ignore sentencing principles and principles applicable to appeals based on a submission of "manifest excess". 102No specific error has been identified by the applicants. No challenge is made to the trial judge's factual findings. There was a real distinction between the roles played by Bin Radimin and Bin Zakhria, which was reflected in the money which they were paid. The difference in their sentences is small and reflects that distinction. 103I am not satisfied that this ground has been made out. 104I would refuse leave to appeal. Conclusion 105The orders which I propose are as follows: (1) In relation to Grounds 1 and 2 I would grant leave to appeal but I would dismiss the appeal. (2) In relation to Ground 3 raised by the applicant, Agus Bin Radimin, I would refuse leave to appeal. 106HIDDEN J: I agree with Hoeben CJ at CL. 107FULLERTON J: I agree with Hoeben CJ at CL.