Border Protection (Validation and Enforcement Powers) Act 2001 (Cth)

Crimes Act 1914 (Cth), s 16A, s 19B

Customs Act 1901 (Cth)

Migration Act 1958 (Cth), s 232A, s 233B, s 233C

Respondent : Commonwealth Director of Public Prosecutions

Castlemaine Tooheys Ltd v South Australia [1990] HCA 1; (1990) 169 CLR 436

Fencott v Muller (1983) 152 CLR 570

Hoy & Ors v The Queen [2002] WASCA 275

Huddart Parker & Co Pty Ltd v Appleton & Moorhead [1909] HCA 36; (1909) 8 CLR 330

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Kable v The Director of Public Prosecutions for the State of New South Wales [1996] HCA 24; (1996) 189 CLR 51

Leeth v Commonwealth of Australia [1992] HCA 29; (1992) 174 CLR 455

Lim v Minister for Immigration, Local Government & Ethnic Affairs (1992) 176 CLR 1

Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173

Pinkstone v The Queen [2003] WASCA 66

Punevski v The Queen [2000] WASCA 71

R v Bedingfield (1879) 14 Cox CC 341

R v Darby [1982] HCA 32; (1982) 148 CLR 668

R v Ferrer­Esis (1991) 55 A Crim R 231

RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620

Subramaniam v Public Prosecutor [1956] 1 WLR 965

Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283

Wynbyne v Marshall [1997] NTSC 120; (1997) 7 NTLR 97

1 MURRAY J: I have had the advantage of reading in draft the reasons for decision now published by Wheeler J. I agree entirely with her Honour that the appeal against conviction should be allowed on the basis of ground (i).

2 I agree also that it would be inappropriate to apply the proviso so as to preserve the conviction on the ground of the inevitability of conviction having regard to the evidence remaining after that the subject of ground (i) is excluded. The Crown case was, it seems to me, very strong, but nonetheless it was a circumstantial evidence case and the question whether it was proved beyond reasonable doubt that the purpose was to bring the vessel to Australia, or whether the proposed destination may have been New Zealand, was a matter for the jury upon which, properly instructed, it would be open to draw the inference sought by the Crown, but not inevitable that they would do so.

3 It follows that although the conviction should be quashed, a retrial should be ordered. That outcome makes the application for leave to appeal against sentence moot and I agree that in those circumstances it would be inappropriate for this Court to address the important arguments raised upon that application. The proper course is simply to refuse the application for leave to appeal against the sentence imposed.

4 Finally, as to the appeal against conviction, I would only add in relation to ground (iv) that, not only do I agree that it would be inappropriate, the witness Gray not being called by the Crown, for the trial Judge to direct the jury that they were entitled to infer that his evidence would not have assisted the Crown, but it seems to me that it would have been positively wrong as a matter of law to give such a direction.

5 While it may not inevitably be wrong to give a direction based on Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 in respect of the failure of either party to call a witness in criminal proceedings before a jury, it will generally be the case that it will be an error to give such a direction and the cases where a Jones v Dunkel direction would be appropriate or required would, in my opinion, be very rare: see Dyers v The Queen (2002) 192 ALR 181 at 183 [4] - [6]. This case, however, does not require any detailed examination of that question.

6 The appellant was charged with an offence against s 232A of the Migration Act 1958 (Cth). The allegation in the indictment was that between 1 November 2001 and 10 December 2001 he facilitated the bringing to Australia of a group of five or more people to whom subs 42(1) of the Migration Act applied, and that he did so reckless as to whether the people had a lawful right to come to Australia. He was originally jointly charged on an indictment with four other co-accused, but was granted an application for separate trial. His trial commenced at the conclusion of the trial of the co-accused on 9 August 2002. The other four co-accused were acquitted and the appellant was convicted by a jury on 13 August 2002.

7 Broadly, the evidence concerned a boat which left Sri Lanka on or about 23 November 2001 carrying 68 persons. The appellant, a Sri Lankan citizen, travelled on the boat. Also on the boat was one Silva, a co-accused and the only Sri Lankan witness called by the Crown at the trial of the appellant. The boat was discovered by police officers attached to the Australian Federal Police travelling in a damaged condition in the region of the Cocos (Keeling) Islands on 9 December 2001.

8 Part of the case against the appellant was circumstantial. The vessel had arrived at Cocos (Keeling) Islands with barely any food or water on it, and with little fuel. It was in poor condition. There was a GPS on board, the coordinates of which were consistent with the vessel heading towards Cocos and with no coordinates indicating a destination past the Cocos Islands. There was no sail and the pole mast was rotten. Those factors, among others, were relied upon by the Crown as indicating that the destination was Australia.

9 It was accepted in the court below that it was necessary for the Crown to prove that Australia was the intended destination of the vessel, in order to establish that the appellant facilitated the bringing of people to this country.

10 In addition to those circumstantial matters, the Crown also relied upon evidence of a Sgt Kildey, in relation to a conversation which he had with a person on board the boat. This evidence was admitted over objection from the appellant's counsel. The evidence of Sgt Kildey was that he was in the police vessel which went alongside the boat when it was within Australian territorial waters. He said that "for welfare reasons" he spoke to one of the male persons on the vessel. The person could speak only broken English, but was "well understandable" by the sergeant. He said that he asked where the vessel had come from and this person told him that the vessel had come from Sri Lanka. Sgt Kildey then said:

"And I asked him where they were going to and he told me they were going to Australia."

11 Sgt Kildey made no notes at the time, and was not able to identify the person to whom he spoke. However, evidence from Silva, which was given during the course of his cross-examination, established that the person to whom Sgt Kildey spoke was a John Derrick Gray, nicknamed "Bimbo". This person had been deported by the time of the trial and was never one of the accused persons.

12 Silva had made a statement to investigating officers indicating the appellant as the person in charge of the direction of the vessel. At trial, Silva was a reluctant witness, indicating in response to questions on a number of occasions to the effect that "Currently my mental state is confusing." He was, quite properly, declared a hostile witness. At various points during his evidence, he gave evidence to the effect that the appellant was the "captain" of the vessel, that the appellant told Silva how to steer it, that the appellant used maps on the vessel, that the appellant used the GPS and pressed the buttons to set it, and that the appellant spoke on the radio and took messages. Silva also said however, that his understanding was that the vessel was going to New Zealand, and that after arguments and fights on the boat after the engine stopped, three people volunteered to "take responsibility and go to the nearest land". It was also his evidence that those three people agreed to tell lies (the nature of which were not clearly specified) about the enterprise to any authorities they might encounter. The appellant also in his record of interview, told the police that he thought the vessel was going to New Zealand.

13 The grounds of appeal fall into a number of categories. It is convenient to deal with them in groups. The first group, consisting of grounds (i) - (iii) is in my view the most significant, since it is my view that the appeal must be allowed, and a retrial ordered, on the basis of ground (i).

14 It is submitted by the appellant that the evidence of Sgt Kildey should not have been admitted. Ground (ii) alleges that it was not relevant; that is, that it was simply not evidence against the appellant at all. Alternatively, ground (iii) asserts that it should have been excluded on the ground that it was unreliable, since no notes had been taken by Sgt Kildey, and the person Gray was speaking broken English without an interpreter. Ground (i) also points to the fact that the evidence was hearsay and submits that it should have been excluded on that basis.

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

16 I would also not accept ground (iii). The fact that Sgt Kildey had taken no notes and the fact that the person to whom he spoke had broken English were plainly factors capable of going to the weight of the evidence which he gave. However, he purported to be clear in his recall of the conversation, and it was his evidence that he was well able to understand the person to whom he spoke. Further, the question of where the vessel was headed is not apparently an inherently difficult concept to convey, even in relatively basic English. These were all in my view jury questions, if the evidence was admissible at all.

17 However, Gray was not the appellant. Any evidence of what Gray said to another person as to the destination of the vessel might have been admissible against Gray as an exception to the rule against hearsay, but it is difficult to see how it could be admissible against this appellant. The way in which the Crown could have proved Gray's state of mind, was by calling him to give evidence. Calling another person, to whom he had spoken about his state of mind, in order to prove his state of mind; that is, in order to prove the truth of the statement which he made to that other person about what he believed to be his destination, appears to me to be the plainest case of hearsay.

18 The respondent submits that although it appears on its face to be hearsay, the evidence of Sgt Kildey of what Gray had said was admissible either as part of the res gestae, or under what is said to be the "Tripodi" principle. In my view, neither of these submissions can be sustained. So far as the res gestae is concerned, it is necessary only to refer to the pre-condition of the admissibility of such evidence explained by the Judicial Committee in Ratten v The Queen [1972] AC 378 at 389 per Lord Wilberforce:

"... it must be for the judge ... to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it."

19 The statement made by Gray to Sgt Kildey was made effectively at the time of arrival at Cocos Island. Whatever the original intended destination of the vessel, the voyage was at that time at an end. The voyage had plainly taken a considerable period of time, during which there would have been ample opportunity for those on board to consider the possibility that they might at some stage be asked to explain their voyage, and to consider what, if anything, they should say. Indeed, it was in effect Silva's evidence that this had occurred; that a number of persons on the vessel at some stage had volunteered to "tell lies" about the voyage. It is difficult to imagine a circumstance less likely to be "free from the possibility of concoction" than a statement made to a person in authority at a time when there has been ample opportunity for the person making the statement to consider that he may be called upon to speak and to consider what it would be advisable to say.

20 So far as the "Tripodi" or "co-conspirators" principle is concerned, the respondent says, correctly, that where the case for the prosecution is that an accused is guilty by participation in an arrangement, combination or preconcert to commit an offence, certain evidence not otherwise admissible against the accused may become admissible. Such evidence is evidence of the utterances and acts of the other parties "in furtherance of the common purpose". It is important to recall that evidence of utterances and acts of other parties are admissible only when they are utterances and acts in furtherance of the common purpose. As Dixon CJ, Fullagar and Windeyer JJ noted in Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1, at 7:

"From the nature of the case it can seldom happen that anything said by one which is no more than a narrative statement or account of some event that has already taken place, that is to say, some statement which would be receivable in evidence against the man who made it as an admission and not otherwise, can become admissible under this principle against his companions in the common enterprise."

21 In my view, for the reasons which I have endeavoured to explain in relation to the res gestae submission, what was said by Gray was no more than a narrative statement or account of an event which was already by then at its conclusion. An explanation to authorities of what the purpose had been cannot in my view be admissible as itself an utterance or act in furtherance of the common purpose. It would be otherwise if the words attributed to Gray had been, for example, something along the lines of: "Is this Australia? Are we there yet?" or some other question directed to the issue of whether landfall had been made in Australia rather than elsewhere. However, the words attributed to him by Sgt Kildey are not words of that kind. They were in my view, inadmissible.

22 The respondent submits that even if the first ground of appeal is successful, the appeal should nevertheless be dismissed on the basis that there has been no substantial miscarriage of justice. The respondent points to the various circumstances to which I have already referred as indicating that the intended destination of the vessel was Australia, and submits that they overwhelmingly established that, even in the absence of the evidence of Gray, that was the only conclusion open to a reasonable jury properly instructed. However, there was evidence, and particularly from Silva, tending to explain a large number of those circumstances. For example, in relation to the absence of food and water, Silva's evidence was that there had been water in bottles and big tanks of water and that the people on the vessel either had fished or would be able to fish to sustain themselves. In relation to the absence of fuel, Silva said that while there was not a sail at the time of arrival at Cocos, that there had been one and that it had been usable. In relation to the GPS, there was some evidence which suggested that one could plot a trip on a GPS "map by map" - that is, one portion at a time - and there was also some evidence that the most expeditious way of getting to New Zealand would be by following the Leeuwin current down the Australian coast and from there sailing east to New Zealand. Whether any of this evidence was accepted, and the effect which it would have upon the circumstantial case built up by the respondent, would be matters for the jury. However, I am unable to form the view that the Crown case was so strong that the success of the first ground of appeal should not result in the success of the appeal overall and the quashing of the appellant's conviction.

23 It is not strictly necessary to deal with the remaining grounds of appeal, since in my view the appeal should be allowed on the basis of ground (i). However, it is desirable that I briefly explain the view which I have reached that none of the remaining grounds of appeal should succeed.

24 Ground (iv) complains of the learned trial Judge's failure to direct the jury that, since the Crown had not called the witness Gray then, in the absence of explanation, the jury was entitled to infer that that witness's evidence would not have assisted the Crown case. The short answer to this submission is that it was common ground before us that Gray had been deported prior to trial, and was not available to be called. As I have already noted, it was only during the course of the trial that it became apparent that the person to whom Sgt Kildey had spoken was Gray. A "Jones v Dunkel" direction would therefore have been entirely inappropriate.

25 Grounds (v) and (vi) complain about the admission of questions and answers in the transcript of the appellant's audio-taped record of interview which referred to allegations of his involvement in "organising" the bringing to Australia of the persons on the vessel. It was submitted that the questions and answers in relation to those matters were evidence of uncharged acts which were not admissible and that, further, given the questioning in relation to organising, a jury might be led to speculate that the authorities had some basis for the questioning of the appellant which could not be cured by his bare denials.

26 It appears that the questioning took the form that it did because of the wording of s 232A of the Migration Act, which provides that a person who "organises or facilitates the bringing or coming to Australia ... of a group of five or more people to whom subsection 42(1) applies" and does so recklessly as to whether the people had lawful right to come to Australia, is guilty of an offence. At the time of investigation, the appellant's precise role in the bringing of the vessel to Australia was not clear. The questioning was therefore directed generally to that topic.

27 So far as the "uncharged acts" ground is concerned, as his Honour the learned trial Judge noted, the appellant made no admissions in relation to organising the bringing of the vessel to Australia. There was therefore no evidence of uncharged acts of any kind contained in the audio-taped record of interview. In any event, the questioning was clearly not directed at any separate and uncharged offence. The questioning was directed to establishing the appellant's culpability and role in relation to the bringing of the vessel to Australia. The terms "organises" and "facilitates" are overlapping terms, and questions directed to whether he had an organising role in relation to bringing the vessel to Australia could plainly elicit answers which revealed a facilitation of that voyage. The questioning was directed in my view, not at some separate uncharged acts but at the very offence with which the appellant was charged.

28 Turning to the ground directed at potential speculation by the jury, his Honour directed the jury that what was said to the police by the appellant was part of the evidence which they could "take on board". There was no suggestion made by anyone during the course of the trial that the questions could themselves be evidence. Further, although the questioning was lengthy, and tested aspects of the appellant's account in detail, the allegations in relation to his organising role were in very broad terms. A summary of the question which was asked on three to four occasions in the course of a lengthy interview is the question which is number 449 which reads:

"Now I've got to put it to you that you organised some people to come on this vessel from Sri Lanka, you organised people to come on the vessel and you were paid money for those people to come onto the vessel, what have you got to say to that?"

29 It is not in my mind the type of question which would suggest to the jury that there was a detailed account which was being withheld from them suggesting that the appellant had such a role. Further, his Honour gave the jury a clear and firm direction that they were not to speculate about any matters which were not before them in evidence. In my view the admission of the questioning of the appellant was proper and gave rise to no potential miscarriage of justice.

30 In relation to Silva's evidence, grounds of appeal (vii) and (viii) are to the effect that his Honour erred in failing to give an accomplice warning in relation to Silva's evidence, and in failing to give a direction to the jury regarding the use to be made of evidence of a hostile witness.

31 At the time at which the trial of the appellant commenced, Silva had already been acquitted of the charge of contravening s 232A of the Migration Act. He was not facing any criminal charges, and it is not suggested that there was any additional charge which could have been brought against him, although he was in detention as an unlawful non-citizen and could therefore expect to be deported. He was not the subject of any cooperation undertaking with the Director of Public Prosecutions or granted any indemnity or immunity in relation to any future prosecution.

32 At the time at which Silva gave evidence, then, he had by verdict of the jury, been determined not to be an accomplice of the appellant. Further, there was nothing to suggest that he was subject to any of the incentives to falsely implicate the appellant which give rise to the risks in relation to the evidence of an accomplice, which risks would not necessarily be apparent to the jury. I note that no corroboration warning was sought by counsel for the appellant at trial, no doubt for the reasons which I have outlined above.

33 At the time at which Silva was initially interviewed, there was obviously a prospect that he would be charged with the offence with which he and the appellant were in due course charged. At that time, he may well have had an interest in minimising his own involvement and implicating the appellant. In court, he was plainly a reluctant witness, as his Honour commented, and adopted only part of what it was put to him in cross-examination that he had said in his initial interview with the authorities. His Honour explained to the jury in detail that the out of court statements made by Silva and put to him during the course of his cross-examination were not themselves evidence. In my view there was no need for his Honour to give any further direction in relation to Silva's role.

34 So far as the final ground is concerned, it is amplified in the written submissions by a submission that his Honour failed to give a direction to the jury that no evidentiary weight should be given to the prior inconsistent statement of Silva. However, his Honour did explain to the jury that the prior out of court statements of Silva were not evidence, and

he also explained to the jury that the answers which Silva gave in court were evidence but not the questions which were put to him about what he had said to the police on a prior occasion. It is my view that his Honour gave the jury the direction which the appellant contends should have been given.

35 The grounds of the proposed appeal against sentence, while they include what one might call the "usual" grounds that insufficient weight was given to certain mitigating factors, are concerned principally with important questions of principle. The major issue of principle raised is the question of whether, notwithstanding the decision of the High Court in Palling v Corfield [1970] HCA 53; (1970) 123 CLR 52, this Court should hold that s 233B and s 233C of the Migration Act 1958 are invalid in requiring the learned sentencing Judge to proceed to conviction, and to impose a minimum sentence of imprisonment. There is also an issue raised as to whether it is an error to treat differently an offender who pleads guilty and an offender who pleads not guilty. Both of those questions have implications extending well beyond the present case. In my view it is not appropriate to answer them in circumstances where, as here, they are presently hypothetical, since the appellant's appeal against conviction is upheld. I would therefore not deal with the issues raised by the application for leave to appeal against sentence.

36 For the reasons which I have set out above, it is my view that the appellant's appeal against conviction must be allowed, the conviction quashed, and a new trial ordered.

37 HASLUCK J: I have had the advantage of reading in draft the reasons for decision of Murray J and Wheeler J. I agree that the appeal against conviction should be allowed on the basis of ground (i). I agree also that it would be inappropriate to apply the proviso. There is nothing further I wish to add.