Taru Ali v R

Elements of the offence 21The wording of the charge in the indictment mirrored the terms of s 233C(1): (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. Penalty: Imprisonment for 20 years or 2,000 penalty units, or both. 22Subsection (2) provides that absolute liability applies to paragraph (1)(b). Subsection (3) provides for an alternative verdict for the basic offence of people smuggling in s 233A if the trier of fact is not satisfied beyond reasonable doubt of the circumstance of aggravation in s 233C ("at least 5 persons"). 23The provision that "absolute liability applies to paragraph (1)(b)" means that the prosecution simply had to establish that "at least 5 of the other persons are non-citizens". There is no fault element and no availability of a defence of mistake of fact. 24Subsection (1)(c) is a physical element; it is a "circumstance in which conduct occurs": s 4.1(1)(c) of the Criminal Code Act 1995 (Cth) ("the Code"). No fault element for subsection (1)(c) is provided in s 233C. Accordingly, and by default, the fault element is recklessness: s 5.6(2) of the Code. 25The question in the present case involves the construction of subsection (1)(a). It is also a physical element of the offence. It involves "conduct": s 4.1(1)(a) of the Code. As no fault element is provided for it in s 233C, the default fault element of intention in s 5.6(1) applies. Intention is established by proof that a person meant to engage in the conduct in question: s 5.2(1) of the Code. 26The elements of the offence were set out in the judgment of the Court of Criminal Appeal of the Northern Territory in The Queen v Ahmad [2012] NTCCA 1; (2012) 256 FLR 423. That was a case concerned with the predecessor of s 233C, namely s 232A of the Migration Act, but there is no relevant difference between the two provisions. 27In Ahmad, a stay of proceedings had been granted by the trial judge on the basis that the prosecution could not prove what she considered to be an essential element of the offence. The facts of the case included that the respondent said and did things to indicate that he understood that the boat upon which he was either the master or a crew member was destined for Australia. The trial judge thought that it was fatal to the prosecution that it could not establish that the relevant persons had actually entered Australia; the boat had been intercepted before it did so. It was held in the Court of Criminal Appeal (Mildren J at [17]-[19]; Southwood and Martin JJ at [40], [46]), in effect, that s 232A was intended to have territorial effect beyond Australia's boundaries and that proof that the people concerned entered Australia was not required. Southwood and Martin JJ set out the elements of the offence (at [47]) which, deleting reference to the facts of that case, were:

1. The accused facilitated the bringing to Australia of a group of five or more passengers.
2. The accused meant to facilitate the bringing of the passengers to Australia.
3. At least five of the passengers were people to whom s 42(1) of the Migration Act applies. That is, the passengers were not Australian citizens; and at the relevant time they did not have valid visas permitting them to enter Australia.
4. The accused was reckless as to whether the passengers had a lawful right to come to Australia. 28I respectfully agree with that distillation of the elements of the offence.

The appeal 29The ground of appeal is concerned with the first and second elements. The trial judge combined them into the one element and directed the jury as to the fault element (element 2 above) that: The Crown must establish not only that the accused physically facilitated the voyage to Australia but that he did so with the knowledge that what he was doing was assisting in bringing the group of at least five persons to Australia. That is he must have acted intentionally. In order to act intentionally the accused must have meant to do what he did. In this case the accused meant to do what he did if he knew that by steering the boat and taking the group to the place that he did he was helping to take the group to Australia. (AB1 6-7) 30The contention of counsel for the appellant on the appeal is encapsulated in a single paragraph of his written submissions: It is submitted that the trial judge's direction to the jury was not sufficient. Given the evidence in this case and the reference by the passenger witness Fida Hussain to the use of the words "Ashmore Reef/Island" or in the context of what the appellant was said to have stated the use of the words "Palau Pasir"[sic - Pulau Pasir is Indonesian for Ashmore Reef], the direction in this case needed to address the issue of the appellant having knowledge that Ashmore Reef/Island or [Pulau] Pasir [was] part of Australia. (AWS [29]) 31Reliance was placed upon a number of appellate decisions which post-dated the appellant's trial: PJ v The Queen [2012] VSCA 146; 268 FLR 99; Sunada v R; Jaru v R [2012] NSWCCA 187; and Alomalu v R [2012] NSWCCA 255. 32PJ v The Queen was an appeal against an interlocutory judgment concerned with the construction of the phrase "facilitate the bringing or coming to Australia of a group of at least five persons" in s 233C(1)(a) of the Migration Act. The Crown had contended before the trial judge that it was sufficient if it were established that the intended destination, Christmas Island, was a place within Australian territory, whether or not the accused was aware that Christmas Island was part of Australia. The defence had contended that it was a necessary element of proof that the prosecution establish that the applicant was aware that the destination of the journey that he was alleged to have facilitated was Australia. The trial judge upheld the Crown's submission and the accused sought leave to appeal. 33The Victorian Court of Appeal (Maxwell P, Redlich and Hansen JJA) held (at [5]; 101): 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. 34Given that it was an appeal against an interlocutory judgment given at a pre-trial hearing, the judgment of the Court of Appeal was confined to the statutory construction point without any consideration of the factual issues in the case itself. 35Having regard to the provisions of s 233C as a whole, I consider that the above statement by the Court of Appeal should be understood as if the words "of the relevant persons" were added to the end of the second sentence. It is the destination of those persons, rather than the destination of a particular step in their journey, that is what the provision is concerned with. 36Sunada v R; Jaru v R was an ex tempore judgment of this Court (Macfarlan JA, Price and McCallum JJ) given two months after PJ v The Queen was handed down. It was concerned with the now-repealed s 232A(1) of the Migration Act. That provision was in the following terms: (1) A person who: (a) organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of 5 or more people to whom subsection 42(1) applies; and (b) does so reckless as to whether the people had, or have, a lawful right to come to Australia; is guilty of an offence punishable on conviction, by imprisonment for 20 years or 2,000 penalty units, or both. 37The trial judge directed the jury: It is enough if the Crown can prove that the accused knew that they were coming to Ashmore Reef, however called. The Crown does not have to prove that they knew that it was part of Australia. 38It was submitted that this direction was erroneous but the trial judge declined to redirect the jury. The appellants were found guilty and appealed against their convictions. On the appeal, the Court's attention was invited to PJ v The Queen. The Crown accepted the correctness of that authority; conceded that the trial judge's direction was erroneous; and submitted that the convictions should be quashed. The Court accepted those concessions and upheld the appeal. There was no occasion to discuss the evidence in the trial or the factual or legal issues that arose. 39In Alomalu the appellant was a member of the crew of a boat that conveyed asylum seekers from Indonesia to Ashmore Reef. He submitted that his conviction for aggravated people smuggling (s 233C) was unreasonable and not supported by the evidence on the basis that the Crown had failed to prove to the requisite standard that he knew that the boat was destined for Australia; and, even if he did know that it was destined for Ashmore Reef, he did not know that Ashmore Reef was part of Australia. 40McClellan CJ at CL, with whom Rothman and Adamson JJ agreed, reviewed the evidence in the trial and said (at [37]) that "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." His Honour continued (at [38]): In the last decade the arrival to Australia of asylum seekers via boat from Indonesia is an issue that has received considerable focus in the Australian media. As a result, many Australians would be aware of the location of Ashmore Reef, know that it is part of Australia and be conscious of its significance as a port of entry for asylum seekers. Many Australians would readily infer that a boat that departs from a port in Indonesia with 78 passengers from Middle Eastern nations and charts a course in a southerly direction is likely to have a final destination of Australia. However, it is a different matter for a poor, itinerate worker from Indonesia. Knowledge that an Australian would have cannot be attributed without evidence to an Indonesian. The inevitable outcome is that I have a doubt about whether the appellant knew that he was facilitating the bringing of persons to Australia and that is a doubt that the jury should have had. The issue is not capable of being resolved adversely to the appellant by any advantage which the jury may have had. It follows that the verdict is unreasonable and cannot be supported by the evidence. 41Another ground of appeal in Alomalu was to the effect that the trial judge had erred in failing to direct the jury that they must be satisfied beyond reasonable doubt that the accused intended that the five or more persons be brought to a destination that was a part of Australia and that the accused knew that the destination was a part of Australia. The trial judge had directed the jury that the accused intended to do something if he meant to do it and: In this case, the accused meant to do it if the accused knew he was helping to take people to Australia. (Alomalu at [70]). 42McClellan CJ at CL held (at [82]): To my mind his Honour's direction was not sufficient to effectively isolate the issue that the jury had to determine. It is the source of the problem identified in Ground 3 [the unreasonable verdict ground]. 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. If I was not of the opinion that the appeal should otherwise be upheld I would have granted leave under Rule 4 and allowed this ground of appeal. (Emphasis added) 43The Crown, rightly in my view, pointed to a discrepancy between what was actually said in PJ v The Queen and what this Court has said about it in the two subsequent cases. 44The passage I set out above from the judgment in PJ v The Queen speaks of an intention that "the relevant persons be brought to Australia" and that the accused be aware "that Australia was the intended destination". But in Sunada, this Court referred (at [5]) to it having been held in PJ v The Queen that "relevant persons brought to a destination that was a part of Australia and that the accused knew was a part of Australia". The slight misstatement of what was said in PJ v The Queen is liable to focus attention on the actual destination of the voyage and give it an emphasis that in some cases is unnecessary. In some cases, such as the present on the Crown submission, the actual destination of the journey was not a critical matter. 45In Alomalu, McClellan CJ at CL referred to Sunada v R; Jaru v R (at [72]) and PJ v The Queen (at [73]). Later, when identifying the inadequacy of the trial judge's directions because of the factual contest in the case at hand, his Honour said (at [82]): 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. 46I respectfully accept the correctness of what his Honour said. But it must be understood as a necessary consideration in the factual circumstances of that case (and of Sunada). 47The rationale for the decision in Alomalu in respect of both grounds turned on the factual issue in the case: that the evidence was capable of establishing that the appellant knew the destination was Ashmore Reef but there was a question as to whether he knew that Ashmore Reef was a part of Australia. It is pertinent that there was no evidence to establish anything other than the appellant's awareness of the destination being Ashmore Reef. What the Crown needed to prove was that the appellant meant to facilitate the bringing (etcetera) of people to Australia. If the appellant's awareness of the destination was not that it was "Ashmore Reef" but "Australia", the case would undoubtedly have had a different outcome. The direction given by the trial judge was correct, as noted in the emphasised words in the extract from the judgment above (at [41] and [42]) and no more would have been required. 48The submissions for the Crown on this appeal were to the effect that the appellant's argument is based upon an incorrect understanding of the law. Putting the argument briefly, it is not the law that a person must know of a destination within Australia to be guilty of people smuggling or aggravated people smuggling offences. The statutory provisions are only concerned with people who facilitate the bringing or coming of unlawful non-citizens to Australia. Simply because there is mention of a particular destination does not create an additional element of the offence, or necessarily require directions beyond those that were given in the present case.

The relevant issue at trial 49The Crown Prosecutor addressed the jury on a number of aspects of its case in support of the proposition that the appellant knew that the boat was destined for Australian waters. The points he sought to make included the following: The appellant played a substantial role in controlling the direction of the boat. He must have known where it was going. (AB2 497; 500) The conditions under which the passengers were housed must have made it obvious that this was "no tourist boat" or "pleasure cruise". (AB2 498; 500) The appellant was seen by one passenger witness looking at a map. He was asked by another passenger witness where the boat was going and he pointed to Ashmore Reef, or Pulau Pasir. (AB2 501) The appellant was asked on multiple occasions about when they were going to reach Australian waters and was responsive to these questions. (AB2 503) The appellant, and other crew members, told passengers that when they arrived in Australian waters, at Ashmore Reef, the Australian Navy would come and collect them. (AB2 503) The appellant spoke about text messages on his mobile phone and spoke of the police coming from a particular direction and that they would need to change their course. This showed a knowledge of the illegality of the voyage. (AB2 504) The appellant told a passenger that when the Australian Navy arrived, the crew would be put in gaol and the passengers would be free. (AB2 504) The appellant was overheard speaking with another crew member about being apprehended by the Australian Navy and saying that they had been forced to go on the journey. (AB2 504) When the boat was intercepted by the Navy, the appellant reminded a passenger of his earlier promise to pay US$100 if the boat arrived at its destination safely. (AB2 511) The appellant made a gesture with his hands as if in handcuffs, demonstrating knowledge that the voyage was illegal and that he would be going to gaol. (AB2 511) When it was intercepted, the boat was on a direct course for Ashmore Reef and the appellant was steering. This also supported the proposition that he knew where it was going. (AB2 512) 50The Crown Prosecutor submitted that the jury would have "no reasonable doubt that the [appellant] knew that the destination of the boat was Australia". (AB2 514) 51The foregoing demonstrates that the Crown case as to the first two elements of the offence was squarely focussed on the question of whether the appellant was aware that he was facilitating the bringing or coming of a group of at least five persons "to Australia". 52The appellant's evidence included that he had never heard of Australia or of Ashmore Reef (AB2 376; 385). He did not know where Australia was (AB2 397). He had heard of a place called Pulau Pasir but he did not know where it was (AB2 385-6). When he embarked upon the voyage he thought he was being paid to steer a boat to Bali (AB2 393). After the boat had passed Bali he had no idea where the boat was going (AB2 394). After the two principals disembarked at Rote Island, he was told to maintain a southerly course but still did not know where they were going (AB2 395-7). He denied certain aspects of the prosecution case such as being involved in conversations that the Crown said demonstrated his knowledge and intention. 53Counsel who appeared for the appellant at trial, but not on the appeal, submitted to the judge that she should direct the jury along the lines suggested in the ground of appeal. Her Honour responded to the effect that whilst such a direction might be appropriate in a particular case, the issue with which such a direction is concerned did not arise in this case. 54Counsel's response included, "I agree your Honour that on the facts of this case that's a long shot." Nevertheless, counsel maintained that such a direction should be given. The jury might reject the [appellant's] denials but conclude that because there was reference to Ashmore Reef, that he was only aware of this as the place he was taking the passengers to and was not aware it was part of Australia.

Submissions and determination 55Reference to Ashmore Reef in the evidence did not convert the defence case to something beyond what the appellant had said in his evidence or make a question of whether he knew Ashmore Reef was part of Australia an issue in the trial. 56It was put to counsel for the appellant at the hearing of the appeal that there appeared to be two cases presented to the jury: the Crown case being one which sought to demonstrate the accused's knowledge and intention about the boat going to Australia; and the defence case being the exact opposite, that the appellant had no knowledge of the destination at all, let alone an intention to facilitate the passage of persons to Australia. Counsel was asked to identify how the jury could possibly have taken a middle course of deciding that the appellant was aware that the boat was going to Ashmore Reef but did not know that it was part of Australia. Counsel responded by inviting the Court's attention to certain passages in the evidence of the prosecution witness, Fida Hussain. 57Mr Hussain said he saw in the captain's cabin a map, a GPS, a compass and some tools to fix the engine. He was asked about the map: Q. What did you see depicted on the map? A. INTERPRETER: On the map it was drawn like places, like islands, mainly Indonesian. Also it was point which way in which direction we're going and up to Ashmore Reef or Pulau Pasir and I saw Ashmore. They had the map, I could see. ... Q. You mentioned another place that sounded something like Pulau Pasir, is that correct? A. INTERPRETER: Because he was talking in his language like he was mentioning that name Pulau Pasir and I wasn't quite sure what that means and he was just pointing at the Ashmore Reef island and he was saying the Navy will come and collect you guys from there. Q. Why were you talking in particular about Ashmore Reef? A. INTERPRETER: The crew, actually they were telling me or telling us so when you get to Australia water so there will be Ashmore Reef and Australian Navy will come and collect you guys. Q. When you say "the crew" are you able to identify who exactly within the crew said that to you? A. INTERPRETER: All of them. When we are asking questions they were all answering the same answer, so all of them. (T161-162). 58A little later, the witness spoke of the appellant receiving SMS messages on his mobile phone: Q. Did you have any further conversation with him in relation to those messages? A. INTERPRETER: Nothing much. It was just try to keep us calm down and it was give us hope, so said you'll be fine and safe and I try to, we try get you there safe. Q. When he said "get you there safe", was there or was there not ever any specific mention of the destination of the boar? A. INTERPRETER: Yeah, of course, he was saying Pulau Pasir. ... Q. Did you have any other conversations with the accused, other than simply looking at the map or so on, that were relevant to the fact of your ultimate destination? A. INTERPRETER: No, not really but it's just like I was, they, just myself and every other passengers keep asking how long, how long is the journey is, how many days and when we getting to get to Australia's waters. (T166) 59The witness was then asked about conversations he may have overheard between the appellant and other crew members about where the boat was going: A. INTERPRETER: Yeah. I heard conversation between him and Ahmad and the other guy, the older guy, and when they were talking about, where you want me to say about what? I heard a lot of conversations. Q. In particular about when the boat reached its destination? A. INTERPRETER: They were talking about, they have conversation about when we get to Australia's water and when the navy ask us, asked us we will tell them look, we've been forced to come here. Q. Who used those words? A. INTERPRETER: The person who's here and also the older guy. Q. Are those the exact words that were used? A. INTERPRETER: Yeah, I really can't remember, it was a long time ago, exactly sentence by sentence, but that was the conversation I heard, we will tell the Australian Navy we've been forced to come here. Q. And did you personally have any conversation with the accused about what would happen if and when the Australian Navy arrived? A. INTERPETER: Yes, he told me when the Australian Navy came and they will put us in jail and you guys will be free. (T 167) 60I am unable to discern from this evidence that the jury could have concluded that the appellant knew that the boat was going to Ashmore Reef and that there was, as a result, a question as to whether he knew that Ashmore Reef was a part of Australia. The evidence set out above certainly contains reference to Ashmore Reef, but it was in the context of conversations about it being in Australian waters, and of the boat being intercepted by the Royal Australian Navy. 61This evidence, and the other items of circumstantial evidence relied upon by the Crown at trial, makes it clear that the question for the jury was whether the appellant knew that the boat was destined for Australia. This was not a case, as Alomalu was, where "the most that can be established from the evidence is that the appellant was told that the passengers would be taken to Ashmore Reef": Alomalu at [37]. 62Put succinctly, the submissions for the Crown were that the trial judge correctly directed the jury as to the elements of the offence and that, on the facts of this case, no further directions were required. Those submissions should be accepted. The appeal should be dismissed.

Order 63I propose the following order: Appeal against conviction dismissed.

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