Criminal law - Appeal against conviction - Migration offences - Defence of sudden or extraordinary emergency - Whether sufficient direction as to nature of defence

Migration Act 1958 (Cth), s 232A

Respondent : Commonwealth Director of Public Prosecutions

Perka v The Queen (1984) 14 CCC (3d) 385

BRK & Ors v The Queen [2001] WASCA 161

R v Abdul-Hussain [1998] EWCA Crim 3528; [1999] Crim LR 570

R v Loughnan [1981] VicRp 43; [1981] VR 443

R v Mathebula [2004] VSCA 74

R v Rogers (1996) 86 A Crim R 542

R v Wright [1999] VSCA 145; [1999] 3 VR 355

Winning v The Queen [2003] WASCA 245

1 MURRAY J: The reasons published by Templeman J, with which I agree, express sufficiently for me the reasons why I joined in the final orders made on the hearing of the appeal.

2 TEMPLEMAN J: The appellant was convicted on 17 March 2004, following a trial by Judge and jury in the District Court, on a single count of contravening s 232A of the Migration Act 1958 (Cth). The appellant's appeal against that conviction was allowed at the hearing on 16 December 2004. The conviction was quashed and a retrial ordered: reasons were to be given later. These are my reasons for joining in that decision.

3 It was alleged against the appellant that he had organised the bringing to Australia of a group of five or more people to whom s 42(1) of the Migration Act applied - that is, people who were not Australian citizens and had no visas - and that he had so acted, reckless as to whether the 53 persons within the group had a lawful right to enter Australia.

4 The appellant and his group came to Australia by boat from the Socialist Republic of Vietnam. They left Vietnam on about 3 June 2003 and sailed to Australia via Indonesia. On 1 July 2003, they were apprehended some 12 nautical miles from Port Hedland.

5 It is not necessary to refer in any detail to the facts giving rise to the charge. Those facts were admitted. However, the appellant claimed to have a defence arising under s 10.3(1) of the Criminal Code Act 1995 (Cth): he contended that he had brought his group to Australia in response to circumstances of sudden or extraordinary emergency and was not, therefore, criminally responsible for the offence he had committed.

6 Before referring to the detail of s 10.3, it is necessary to summarise the facts and matters relied upon by the appellant as giving rise to his defence.

7 The appellant was an Australian citizen of Vietnamese origin who had originally entered Australia as a refugee from Vietnam in about 1993.

8 In March 2003, the appellant travelled to Vietnam from Australia for purposes which included the dissemination of anti-government propaganda in Vietnam. As part of that activity, the appellant organised others to distribute pamphlets. It may be assumed, for present purposes, that those activities were illegal under Vietnamese law.

9 On about 15 May 2003, a few weeks after the pamphlets had been distributed, the appellant was telephoned by his sister and told that the Vietnamese authorities had discovered the activities of his group.

10 This information caused the appellant considerable concern. It was the appellant's case that he had suffered at the hands of the communist government. The appellant said he had joined the South Vietnamese Army in 1974, at the age of 18 and risen to the position of a commander of the Eastern Special Zone of South Vietnam. In 1975, after the North Vietnamese communist government came to power, the appellant fled to the jungle and began to fight against the communist regime. He remained in the jungle for much of the next six years, during which period his father, who was also a member of the South Vietnamese Army, was killed by the communist regime.

11 In September 1981, the appellant and others were captured by the communist government and charged with treason. The appellant was held in custody for some four years without trial.

12 In 1985, the appellant was convicted of treason and sentenced to 20 years' imprisonment. Two of his co-accused were executed. While in prison, the appellant was held in chains for some six years.

13 The appellant did not complete his sentence. In 1991 he escaped from a Vietnamese prison and made his way to Thailand where he remained as a refugee until 1994, when he was granted a visa to enter Australia. He was granted Australian citizenship in 1997.

14 The appellant's concern, on being informed by his sister that the authorities were aware of his and his group's political activities, arose from a fear that if apprehended, he would be subjected to the same kind of treatment that he had suffered previously. The appellant was concerned also that his relatives (whether or not they had been involved in his political activities) might also be pursued by the Vietnamese authorities and made to suffer in the same way. This concern extended to all of the 53 persons whom the appellant subsequently brought to Australia. It was in those circumstances that the appellant decided to organise their escape.

15 Shortly after his arrest, in the course of an interview with police officers, the appellant said:

"Just because of my love for my country and thinking of the people involving (sic) ... political activities in Vietnam I have to take them out to protect their safety and if that causing (sic) me to be in prison or anything I accepted on (sic) that."

16 Section 10.3 of the Criminal Code Act provides:

"(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency.

(2) This section applies if and only if the person carrying out the conduct reasonably believes that:

(a) circumstances of sudden or extraordinary emergency exist.

(b) committing the offence is the only reasonable way to deal with the emergency.

(c) the conduct is a reasonable response to the emergency."

17 Relevantly, for present purposes, it is necessary to make the following observations.

(a) The circumstances in which the defence may be raised include a sudden emergency or an extraordinary emergency. It is not necessary for the emergency to be both sudden and extraordinary.

(b) In determining whether an emergency is sudden or extraordinary it may be relevant to have regard to the time which elapsed between the offender becoming aware of the emergency and his or her acting in response to it. However, delay is not a determinative factor.

(c) The prosecution cannot exclude the defence by proving that no sudden or extraordinary emergency actually existed. Although that fact may be relevant, the ultimate question is whether the offender reasonably believed in the existence of the emergency.

18 In the present case, the learned trial Judge held that the s 10.3 defence should go to the jury. However with all respect to the Judge, I consider that in charging the jury, her Honour did not have sufficient regard to the considerations I have summarised as (a) to (c) above.

19 In relation to (a), the Judge referred on numerous occasions in her charge to the need for the jury to consider whether there was a sudden and extraordinary emergency. Although her Honour referred also to a sudden or extraordinary emergency, and left the jury with the printout of a PowerPoint presentation in which reference was made to sudden or extraordinary emergency, it seems that the jury may not have appreciated the significance of the difference. That concern arises from the fact that after the jury had been deliberating for some six hours, they sent the following question to the Judge:

"We are deliberating on the point of sudden and extraordinary circumstances. Please would you clarify their legal meaning." (emphasis supplied)

20 In redirecting the jury, the Judge again referred, apparently indiscriminately, both to sudden or extraordinary emergency and sudden and extraordinary emergency. Indeed, the jury were left with the last expression at the end of her Honour's redirection.

21 In relation to point (b) above, the Judge said in her charge:

"The Crown also says that (the appellant) learned the police were suspicious some eight days before they ever left Vietnam and that there was nothing sudden or extraordinary about that. The Crown also says that this was not a sudden and extraordinary emergency as such."

22 In my view, this part of the Judge's charge, would have left the jury with the impression that the passage of time might be determinative: at least, on the Crown case.

23 The following passage in the redirection, would, I think, have reinforced that impression:

"They heard about this apparently on the - was it the 17th of the month, I think the evidence was, that they knew the police were after them, sometime like that, and they didn't actually get underway in the boat until into the next month, so there were days that went by.

I can't remember the dates exactly, but you have heard the evidence. So was it a sudden and extraordinary emergency that was operating on their minds at the time they organised and facilitated the bringing of people to Australia, and did they genuinely believe that?"

24 The difficulty arising from the last passage quoted above is compounded by the Judge's reference to a sudden and extraordinary emergency. However, I consider that in any event, the direction placed too much emphasis on the passage of time and did not take into account the fact that an emergency may be extraordinary even though the anticipated danger is not imminent.

25 As to (c) above, it is sufficient to note that on several occasions during the course of her charge, including the redirection, her Honour directed the jury that the defence of sudden or extraordinary emergency would be negatived if the Crown proved that there was in fact no such emergency. For example, during the course of the redirection the Judge said:

"The Crown would have to satisfy you there really was not anything that could be described as a sudden or an extraordinary emergency, and the Crown would have to satisfy you that they didn't reasonably believe that." (emphasis supplied)

" ... has the Crown satisfied you beyond reasonable doubt either that there was no extraordinary emergency, they did not honestly believe it, or this was just not the only reasonable way to deal with it?" (emphasis supplied)

27 The appellant complains of all these matters in his grounds of appeal. In my view, for the reasons set out above, each of those grounds is made out. Indeed, at the hearing of the appeal, counsel for the Crown (who was not counsel at the trial) very properly conceded that, having regard to the way in which the trial Judge dealt with point (c) above, the appeal must be allowed unless it could be demonstrated that the misdirection had not resulted in a miscarriage of justice.

28 In my view, it is impossible to exclude a miscarriage of justice. Having regard to the way in which the Judge directed the jury, it would have been open to them to convict the appellant if they were satisfied that there was, in fact, no sudden or extraordinary emergency. On that basis alone, I concluded that the appeal must be allowed. Furthermore, I considered that the combination of errors made by the Judge were such that the appellant was denied his right to a fair trial.

29 MCLURE J: I have had the advantage of reading the reasons to be published by Templeman J. I joined in the orders made at the hearing generally for the reasons he gives save on the matter of delay. In that regard, I am not satisfied the trial Judge directed the jury that delay was or might be determinative.

30 For the sake of completeness it is appropriate to record that the appeal was argued on the basis of a concession by the Crown that the necessity defence was open on the evidence in this case and properly left to the jury. In particular, the Crown accepted a ruling by the trial Judge that the defence of necessity was open even if the appellant (or persons for whom he accepted responsibility) created the situation said to constitute the emergency, the risk of which was reasonably foreseeable. There is Canadian authority for the proposition that such a situation does (or may) not constitute an emergency within the ordinary meaning of that term: Perka v The Queen (1984) 14 CCC (3d) 385 at pars 53 and 55 per Dickson J. However, the correctness or otherwise of the trial Judge's ruling accepted by the Crown is not a matter for the Court in this appeal.