Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - People smuggling - The defence of sudden or extraordinary emergency under s 10.3 of the Criminal Code (Cth) - Whether the trial judge misdirected the jury in relation to the nature of an extraordinary emergency - Whether the trial judge may have confused or misled the jury about the burden and standard of proof or their application to the elements of the defence of sudden or extraordinary emergency

Acts Interpretation Act 1901 (Cth), s 15AB(1)

Criminal Code (Cth), s 8.4, s 10.3, s 13.1, s 13.3

Migration Act 1958 (Cth), s 42(1), s 232A

Cooper v The State of Western Australia [2010] WASCA 190

Cox v The State of Western Australia [2011] WASCA 30

CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440

Kia v The Queen [2011] WASCA 104

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

Mason v The State of Western Australia [2005] WASCA 125; (2005) 30 WAR 205

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

Morris v The Queen [2006] WASCA 142; (2006) 201 FLR 325

Mule v The Queen [2005] HCA 49

Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193

Nguyen v The Queen [2005] WASCA 22

Oblach v The Queen [2005] NSWCCA 440; (2005) 65 NSWLR 75

Quartermaine v The Queen [1980] HCA 29; (1980) 143 CLR 595

R v Kanaveilomani [1995] 2 Qd R 642

Rogers (1996) 86 A Crim R 542

Smith v The State of Western Australia [2010] WASCA 205; (2010) 204 A Crim R 280

Tran v Commonwealth [2010] FCAFC 80; (2010) 187 FCR 54

1 PULLIN JA: Buss JA has set out the facts and the relevant parts of the trial judge's direction which are alleged to reveal error. It is unnecessary for me to repeat them. The grounds of appeal allege that errors were made by the trial judge in his directions to the jury about the only issue of significance in the trial. The issue was whether the prosecution had proved beyond reasonable doubt that the appellant did not 'reasonably believe' that circumstances of 'sudden or extraordinary emergency' existed and did not have the other belief referred to in s 10.3 of the Criminal Code (Cth). If that was not proved by the prosecution then it meant that the appellant was not criminally responsible for facilitating people smuggling. In particular (a) it is alleged that the trial judge wrongly gave the impression to the jury that delay was determinative in relation to the applicability of the defence.

2 The first criticism is about the directions given in response to a question posed by the jury. It is not necessary for a trial judge to explain words of ordinary meaning: Smith v The State of Western Australia [2010] WASCA 205 [169] (Mazza J) and sometimes it is wise not to attempt to do so. The words 'emergency', 'sudden' and 'extraordinary' are words of ordinary meaning. Clearly the concepts of 'sudden emergency' and 'extraordinary emergency' can overlap. An emergency can occur 'suddenly' and require immediate action. An 'extraordinary' emergency may develop over time but even an extraordinary emergency will eventually require some degree of immediacy in response to it as the trial judge correctly said.

3 After some attempt at explaining what an 'extraordinary emergency' was, the trial judge retreated to a direction, in effect, that the words were words of ordinary meaning and that it was for the jury to determine whether there was a sudden or extraordinary emergency in this case. Specifically the trial judge said that the jury was to attribute to the words 'extraordinary' and 'emergency' the meaning they would ordinarily attribute to those words and that phrase. That was correct. The effect of the whole of the directions given in answer to the question from the jury was that the jury was to make their assessment as to whether there was a sudden or extraordinary emergency. The directions read as a whole rather than read piecemeal do not reveal error.

4 Secondly, the appellant contends that examples of extraordinary emergencies given by the trial judge and referred to in Buss JA's reasons were inappropriate in the circumstances of the case. It is not disputed that the examples given were examples of emergencies and what might be seen as sudden emergencies. However, the fact that the trial judge gave examples of sudden emergencies when referring to extraordinary emergencies, although potentially misleading, was eventually overcome by the trial judge indicating that the words had their ordinary meanings and it was for the jury to determine what was meant. Because the words 'sudden', 'emergency' and 'extraordinary' have their ordinary meaning and the trial judge told the jury that this was so, the jury must plainly have understood that the examples given were examples of sudden emergencies and not extraordinary emergencies (although depending on circumstances it may not be incorrect to describe them also as extraordinary emergencies). As a result, the jury was not misled. Read as a whole, the directions given did not give rise to any erroneous direction. The concentration on only some of the words is not the appropriate way to consider the trial judge's directions.

5 The third particular involves an allegation by the appellant that the trial judge erroneously directed the jury to consider the reasonableness of the appellant's actions rather than the reasonableness of his beliefs. The error is said to have occurred at ts 474. Once again, the appellant concentrates not on the whole of the directions but on three or four sentences. The appellant submitted that if attention is paid to those sentences, they reveal error. However, beginning at ts 473, the trial judge made it plain that the onus was on the prosecution to satisfy the jury beyond reasonable doubt that the appellant did not hold the belief that circumstances of sudden or extraordinary emergency existed. Then at ts 474 the trial judge said that:

Whether what [the appellant] did; that is, committing the acts which would on the face of it comprise the offence, was the only reasonable way to deal with the circumstances which he believed to exist is a matter for you. (emphasis added)

6 There then followed immediately after this sentence, the sentences which are the subject of complaint by the appellant. His Honour said:

Whether what he did was a reasonable response to the circumstances which he believed to exist is similarly a matter for you to determine. In other words, his own assessment of the reasonableness or otherwise of what he did is neither here nor there. The question is an objective one for you to judge. (emphasis added)

7 The words 'he did' is clearly a reference to whether the appellant 'believed' the circumstances existed. In my view, what was said by the trial judge and recorded at ts 474 would have given the jury the impression that the question which was 'an objective one' for the jury to judge was the question about whether the appellant 'believed' that there existed a sudden or extraordinary emergency. Later at ts 502 the trial judge referred again to the task of the prosecution in excluding beyond reasonable doubt the existence of the defence. The trial judge again referred to the question being about whether there was 'a belief' that there were circumstances of sudden or extraordinary emergency. This was repeated again at ts 516. Reading the summing up as a whole, the jury could have had no doubt that the question was whether the prosecution had proved beyond reasonable doubt that the appellant did not have the requisite belief.

8 Finally, the fourth particular alleged that the trial judge failed to sufficiently link the onus and standard of proof to the elements of the defence of emergency.

9 Once again the appellant concentrates on a small portion of the directions. The passage was in the sentence where the trial judge said:

[T]here must as a matter of fact be a belief that organising or facilitating the bringing or coming to Australia of the people onboard the vessel was the only reasonable way to deal with the emergency, and secondly, there must as a matter of fact be a belief that doing so was a reasonable response to the emergency (ts 474).

10 The appellant submitted that the trial judge's reference to whether or not some belief existed 'as a matter of fact' was to indicate to the jury that the accused was required to establish that fact. The appellant submits that this error was repeated in the trial judge's subsequent response to the jury's question in which he stated that:

If you conclude as a matter of fact that he didn't hold that belief, then the defence itself doesn't get off the ground, so to speak (ts 516).

11 After reading the summing up as a whole, the jury could have had no doubt that the burden was on the prosecution to prove beyond reasonable doubt that the appellant did not have the requisite belief. Correct directions about the onus and burden of proof were given by the trial judge six times during his summing up at ts 459, 461, 472, 473, 502 and in the answer to the jury's question at ts 516.

12 As already indicated, this appeal proceeded by concentrating on statements made by the trial judge either in parts of sentences or in short passages extracted from a lengthy summing up. It is necessary when considering a contention that there was an erroneous direction, to take into account the overall effect of the summing up. It is erroneous to take parts of a judicial communication with a jury in isolation from the context:

Cooper v The State of Western Australia [2010] WASCA 190 [23]; Cox v The State of Western Australia [2011] WASCA 30 [62]; R v Kanaveilomani [1995] 2 Qd R 642, 648, 651 - 652; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 291; Mule v The Queen [2005] HCA 49 [24]. The overall effect of the summing up was that the jury was correctly directed about how to deal with what was, in effect, the only issue in the case and that was whether the prosecution had proved beyond reasonable doubt that the appellant did not have the requisite belief. The appeal should be dismissed.

13 BUSS JA: On 17 November 2010, the appellant was convicted, after a trial in the District Court before Eaton DCJ and a jury, on one count in an indictment which alleged that between about January 2009 and 22 April 2009 at Negombo, Sri Lanka and the seas between Sri Lanka and Barrow Island, Western Australia, the appellant organised or facilitated the bringing or coming to Australia of a group of five or more people to whom s 42(1) of the Migration Act 1958 (Cth) (the Act) applied, namely, a group of 31 Sri Lankan people, and did so reckless as to whether the people had a lawful right to come to Australia, contrary to s 232A of the Act.

14 On 19 November 2010, the appellant was sentenced to 5 years' immediate imprisonment, with a non-parole period of 3 years. The sentence was backdated to 22 April 2009.

15 The appellant appeals to this court against his conviction.

16 The Crown's case at trial alleged that the appellant had organised or facilitated 31 Sri Lankan people coming to Australia.

17 The appellant had collected money from these 31 people and had applied the money towards the purchase of a vessel, the 'Ritmi Leticia Due'.

18 On 31 March 2009, the 31 people and the appellant embarked on the vessel at Negombo and departed for Australia.

19 On 22 April 2009, the vessel was intercepted by the Australian Navy after it had entered the Australian contiguous zone.

20 None of the 31 people had a lawful right to come to Australia. The Crown alleged that the appellant was reckless as to whether they had such a right.

21 The appellant's case at trial was that, even if the Crown proved the elements of the offence under s 232A of the Act, he was not criminally responsible for the offence in that he carried out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency within s 10.3 of the Criminal Code (Cth) (the Code).

Relevant evidence of various prosecution witnesses

22 Various prosecution witnesses, who had travelled from Sri Lanka to Australia on the vessel, gave evidence that they feared for their safety as a result of violence that was occurring in Sri Lanka. For example:

(a) Mukunthan Paransothi gave evidence that he had been arrested by the Sri Lankan police on many occasions, that he had been subjected to violence, and that his mother and brother had been killed in a bomb blast caused by the Sri Lankan Government (ts 185 - 186);

(b) Chandrasekarander Ganeshan gave evidence that a friend had been killed and that he had received threatening telephone calls in Sri Lanka (ts 202); and

(c) Jayam Subramaniyam gave evidence that he was placed in a van in Sri Lanka and had a gun held to his head (ts 235) and that when he left Sri Lanka the civil war between the government of Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE) was at its peak (ts 237, 240).

23 The appellant said, relevantly, in examination-in-chief:

(a) Between 2002 and 2005, the appellant was involved in Sri Lankan politics and elections in Negombo. He was working for politicians who were helping fishermen along the coast (ts 299).

(b) The political party (the UNP), for which he worked, lost the election in November 2004 (ts 300, 302).

(c) In January or February 2005, he was tied up, blindfolded and taken in a white van by men associated with the party that won the election. When the appellant asked why he had been taken, the men told him not to work during elections, not to work for the UNP and that if he did his life would be in danger (ts 301 - 303).

(d) When he argued with the men about why he should not work for the UNP, the 'small finger' on his left hand was cut off (ts 302 - 303).

(e) He was then dumped on the roadside of a forest area, and two days later he was found by people who lived in the area and was taken to get medical assistance (ts 303).

(f) After this incident he did not continue to work in politics because he was filled with fear (ts 303).

(g) He then purchased a boat and began fishing in Negombo, where he would catch fish, cut them into pieces and sell them (ts 304).

(h) In 2007, he moved to an island called Baththalangunduwa, to an area named Kalpitiya, which was controlled by the government and the LTTE (otherwise known as 'the movement') (ts 304 - 305).

(i) In 2007, he witnessed representatives of the LTTE arrive by speedboat and then stab and shoot people (ts 305 - 306).

(j) He was working with 'a youngster' on a boat at the time (ts 305).

(k) The appellant begged for his life when confronted by the representatives of the LTTE, and said that he would do anything not to be killed. He agreed to help them (ts 306 - 307).

(l) About 10 days later, he assisted the LTTE by taking goods from another boat and delivering them to a place called Mannar. The boxes contained items including weapons, oil cans, batteries and chemicals (ts 307 - 308).

(m) He transported goods for the LTTE on a second occasion. He was not paid for these trips (ts 308 - 311).

(n) On a third occasion, he refused to help the LTTE. He was then tortured by representatives of the LTTE and was bashed in the head with a rifle (some sutures were made subsequently), and he was warned that if he did not help them again, he would be killed (ts 312).

(o) He did not want to continue to help the LTTE because, if the government found out, he feared the government would kill him (ts 312).

(p) He agreed to continue to help the LTTE after he was tortured, but he did not do a transportation job they had requested. He instead went back to Negombo (ts 313 - 315).

(q) The appellant feared that if he stayed on the island he would have to help the LTTE or they would kill him, but he also feared that if he helped the LTTE the government would kill him, as it had killed other people who had helped the LTTE (ts 320).

(r) He stayed in Negombo until he left on the boat for Australia, which was a little over 12 months later (ts 320).

(s) In November or December 2007, the appellant received a message to report to the Negombo police in Sri Lanka. He reported and was allowed to leave (ts 321 - 322).

(t) In January 2008, he went to the police station again and was questioned by police about whether he had any Tamil friends. He said 'no' out of fear. He was photographed and released (ts 322 - 323).

(u) He became aware that two people who had helped 'the movement' had been killed. One of these people, a man named Christie, had worked on the island where the appellant had worked (ts 327 - 328).

(v) The appellant feared for his life and wanted to travel to another country (ts 329).

(w) A close friend of his named Kumaran was killed after being abducted. The appellant believed he was abducted by the government, in a white van, in August 2008. This made the appellant feel very scared (ts 330 - 331).

(x) In about September 2008, the appellant moved to his sister-in-law's house, which was about half an hour away in Nainamadama, and stayed there for one to two months, and stopped working (ts 330 - 333).

24 The appellant made a number of admissions at trial and in an interview with police before trial which, together with other evidence at trial that was not seriously in question, established each of the elements of the offence.

25 The trial judge ruled, over objection by the prosecutor, that the appellant had satisfied the evidential burden in relation to s 10.3 of the Code and that the defence of sudden or extraordinary emergency should be left to the jury (ts 455).

26 The real issue at trial was whether the Crown had negatived the defence beyond reasonable doubt.

The closing address of the prosecutor at trial

27 The prosecutor submitted in his closing address at trial that the crucial question for the jury was whether the Crown had negatived at least one of the elements of the defence of sudden or extraordinary emergency.

28 According to the prosecutor, the case was about 'extraordinary', as distinct from 'sudden', emergency.

29 It was submitted, on behalf of the Crown, that there was no evidence that the appellant had engaged in any of the conduct that constituted the offence in response to the situation of the 31 Sri Lankan people who were his fellow passengers on the vessel, as opposed to his own situation.

The closing address of defence counsel at trial

30 Defence counsel submitted in his closing address at trial that the Crown had failed to discharge the burden of negativing beyond reasonable doubt the defence of sudden or extraordinary emergency.

Section 232A and other relevant provisions of the Act

31 At the material time, s 232A of the Act provided:

(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.

32 Section 232A is in subdivision A of div 12 of pt 2 of the Act.

33 At the material time, s 228A of the Act provided that subdivision A of div 12 of pt 2 applies 'in and outside Australia'.

34 Section 4A of the Act provides that ch 2 of the Code (except pt 2.5) applies to all offences against the Act.

Section 10.3 and other relevant provisions of the Code

35 Chapter 2 of the Code is headed, 'General principles of criminal responsibility'. Chapter 2 comprises s 2.1 - s 16.4.

36 Section 10.3 appears in ch 2, pt 2.3, div 10 of the Code. Part 2.3 is headed, 'Circumstances in which there is no criminal responsibility'. Division 10 is headed, 'Circumstances involving external factors'. Each of the sections in that division contains a statement of circumstances in which a person is not criminally responsible for an offence.

(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; and

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

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

38 Section 10.3(2) requires that the accused have a reasonable belief as to the matters specified in pars (a), (b) and (c).

39 Section 8.4(2) states that if any part of a defence is based on reasonable belief, in determining whether that reasonable belief existed, regard must be had to the standard of a reasonable person who is not intoxicated.

40 By s 13.3(2), a person who wishes to deny criminal responsibility by relying on a provision of pt 2.3 (other than s 7.3) bears an 'evidential burden' in relation to that matter. In s 13.3(6), the term 'evidential burden', in relation to a matter, is defined to mean 'the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist'. Section 13.3(5) provides that the question whether an evidential burden has been discharged is one of law.

41 By s 13.1(2), relevantly, the prosecution bears a 'legal burden' of disproving any matter in relation to which the accused has discharged an evidential burden of proof imposed on him or her. In s 13.1(3), the term 'legal burden', in relation to a matter, is defined to mean 'the burden of proving the existence of the matter'.

42 Section 13.2(1) provides that a legal burden of proof on the prosecution must be discharged beyond reasonable doubt.

Section 10.3 of the Code: relevant legal principles

43 As Rares J noted in Tran v Commonwealth [2010] FCAFC 80; (2010) 187 FCR 54, the concept of a person not being criminally responsible for an offence because of a provision such as s 10.3 of the Code has a long history in the Australian criminal law [93]. See also CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440 [1] - [3] (Gleeson CJ, Gummow, Crennan & Kiefel JJ). For example, s 25 of the Criminal Code (WA) contains a provision with respect to 'sudden or extraordinary emergency' that is analogous to s 10.3.

44 Chapter 2 of the Code had its genesis in the report of the Criminal Law Officers Committee of the Standing Committee of Attorneys-General (the Committee) entitled Model Criminal Code Chapter 2: General Principles of Criminal Responsibility, Final Report December 1992, Commonwealth of Australia, 1993.

45 Section 10.3 was enacted in the form recommended by the Committee. The Committee's commentary on the draft provision which became s 10.3 reads:

This section recognises that an accused person is excused from committing what would otherwise be a criminal act in very limited circumstances. Like duress, the necessity of the occasion and the response to it are both subject to an objective test. The Committee's proposal is an amalgam of the principles underlying the common law of necessity and the Griffith Code equivalent (67).

See Oblach v The Queen [2005] NSWCCA 440; (2005) 65 NSWLR 75 [32] - [37] (Spigelman CJ).

46 Section 10.3(1) confers the defence. It states that 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.

47 Section 10.3(2) specifies the elements of the defence. If the accused satisfies the evidential burden in relation to each of the elements (see s 13.3) and the Crown fails to negative beyond reasonable doubt at least one of the elements, then the accused will be taken to have carried out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency within s 10.3(1).

48 As to s 10.3(2)(a), it is an element of the defence that, at the material time, the accused reasonably believed that 'circumstances of sudden or extraordinary emergency [existed]'. This element incorporates a subjective component and an objective component. The subjective component is the existence of a belief by the accused that circumstances of sudden or extraordinary emergency existed. The objective component is that any such subjective belief by the accused must have been reasonable.

49 It is unnecessary for an emergency to be both sudden and extraordinary. The emergency may be either sudden or extraordinary. See Nguyen v The Queen [2005] WASCA 22 [17] (Templeman J, Murray J agreeing & McLure J agreeing generally).

50 However, the concepts of a 'sudden' emergency and an 'extraordinary' emergency may, in a particular case, overlap. That is, an emergency may, in a particular case, be both 'sudden' and 'extraordinary'.

51 In my opinion, the phrase 'sudden or extraordinary emergency' in s 10.3 bears its natural and ordinary meaning. This is apparent from the statutory text and the decision of the Parliament not to define the phrase or any of the words that comprise it.

52 By s 15AB(1) of the Acts Interpretation Act 1901 (Cth), relevantly, in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision, taking into account its context in the Act and the purpose or object underlying the Act.

53 The Committee, in its commentary on the draft provision which became s 10.3, made these comments in relation to the phrase 'sudden or extraordinary emergency':

In response to the submission of the Northern Territory Criminal Law Association, the section has been redrafted so that the words 'sudden or extraordinary emergency' are not defined in terms of 'an urgent situation of imminent peril' (see Discussion Draft s 312.1) but left to the jury as ordinary words in the English language (67).

54 Similar comments also appear in the explanatory memorandum to the Bill which, upon enactment, became the Code. The memorandum states in relation to the proposed s 10.3, relevantly:

The proposed section has been redrafted so that the words 'sudden or extraordinary emergency' are not defined in terms of 'an urgent situation of imminent peril' but are left to the jury as ordinary words in the English language (31).

55 The provisions of the Committee's commentary and the explanatory memorandum, to which I have referred, are capable of assisting in the ascertainment of the meaning of s 10.3(2)(a). They confirm that the phrase 'sudden or extraordinary emergency' in s 10.3(2)(a) bears its natural and ordinary meaning. This is consistent with the context in which the phrase appears and the purpose or object underlying s 10.3.

56 It has been held, in relation to s 25 of the Criminal Code (WA), that a trial judge is not bound to instruct the jury that the words 'sudden or extraordinary emergency' in s 25 have their natural and ordinary meaning or to draw a distinction, in his or her summing up, between the word 'sudden', on the one hand, and the word 'extraordinary', on the other, or to give any examples in his or her summing up as to what may constitute a sudden or extraordinary emergency. See Smith v The State of Western Australia [2010] WASCA 205; (2010) 204 A Crim R 280 [41] - [42] (McLure P, Owen JA agreeing).

57 In Nguyen, Templeman J (Murray J agreeing & McLure J agreeing generally) made these observations about s 10.3:

(a) It may be relevant, in deciding whether an emergency is sudden or extraordinary, to have regard to the time which elapsed between the accused becoming aware of the emergency, on the one hand, and his or her acting in response to it, on the other. However, delay is not a 'determinative factor'.

(b) The Crown cannot negative the defence by proving that no sudden or extraordinary emergency in fact existed. Although the absence of an actual sudden or extraordinary emergency may be a relevant factor, the ultimate question is whether the accused reasonably believed, in terms of s 10.3(2)(a), that circumstances of sudden or extraordinary emergency existed [17].

58 As to s 10.3(2)(b), it is an element of the defence that, at the material time, the accused reasonably believed that 'committing the offence [was] the only reasonable way to deal with the emergency'. The term 'the emergency' in s 10.3(2)(b) refers to the circumstances of sudden or extraordinary emergency within s 10.3(2)(a) that the accused reasonably believed existed. The element in s 10.3(2)(b) incorporates a subjective component and an objective component. The subjective component is the existence of a belief by the accused that committing the offence was the only reasonable way to deal with the circumstances of sudden or extraordinary emergency that he or she reasonably believed existed. The objective component is that any such subjective belief by the accused must have been reasonable.

59 As to s 10.3(2)(c), it is an element of the defence that, at the material time, the accused reasonably believed that 'the conduct [was] a reasonable response to the emergency'. The term 'the emergency' in s 10.3(2)(c) refers to the circumstances of sudden or extraordinary emergency within s 10.3(2)(a) that the accused reasonably believed existed. The element in s 10.3(2)(c) incorporates a subjective component and an objective component. The subjective component is the existence of a belief by the accused that the conduct (that is, the conduct constituting the offence) was a reasonable response to the circumstances of sudden or extraordinary emergency that he or she reasonably believed existed. The objective component is that any such subjective belief by the accused must have been reasonable.

60 If an accused satisfies the evidential burden in relation to the defence of sudden or extraordinary emergency under s 10.3, the Crown may discharge the legal burden of negating the defence by proving beyond reasonable doubt that:

(a) the accused did not subjectively believe that circumstances of sudden or extraordinary emergency existed; or

(b) it was not objectively reasonable for the accused subjectively to believe that circumstances of sudden or extraordinary emergency existed; or

(c) the accused did not subjectively believe that committing the offence was the only reasonable way to deal with the emergency; or

(d) it was not objectively reasonable for the accused subjectively to believe that committing the offence was the only reasonable way to deal with the emergency; or

(e) the accused did not subjectively believe that the conduct constituting the offence was a reasonable response to the emergency; or

(f) it was not objectively reasonable for the accused subjectively to believe that the conduct constituting the offence was a reasonable response to the emergency.

61 It is unnecessary, in this appeal, to examine the scope of the objective components embodied in s 10.3(2). See, generally, Oblach [74] (Sully J); Morris v The Queen [2006] WASCA 142; (2006) 201 FLR 325 [135] - [140] (McLure JA), [168] - [169] (Buss JA); Kia v The Queen [2011] WASCA 104 [20] - [23] (McLure P, Martin CJ & Mazza J agreeing); s 8.4(2) of the Code.

The trial judge's summing up: the directions on sudden or extraordinary emergency

62 The trial judge directed the jury, in his summing up, that the defence of sudden or extraordinary emergency under s 10.3 is 'founded upon a belief, on the part of the accused, in effect, that he can only respond to the sudden or extraordinary emergency faced by him by committing the offence' (ts 460).

63 His Honour explained the operation of the burden and standard of proof borne by the Crown, as follows:

The question for you is, 'Am I satisfied beyond reasonable doubt that the Commonwealth has proven the various elements that go together to make up this particular offence?' and 'am I satisfied beyond reasonable doubt that the Commonwealth has excluded that particular defence, sudden or extraordinary emergency?' So there's two parts to the Commonwealth's role. One is to prove the elements of the offence itself, to the requisite standard. And the other one is to exclude the operation of the defence to which I've referred, to the requisite standard (ts 461).

64 The trial judge gave this account of the general operation of s 10.3:

The defence applies if, and only if, the person carrying out the conduct reasonably believes (a) that circumstances of sudden or extraordinary emergency exist, and (b) that committing the offence is the only reasonable way to deal with the emergency, and (c) that the conduct is a reasonable response to the emergency. It is important that you bear in mind that it is the Commonwealth which must satisfy you beyond reasonable doubt that [the appellant] is not relieved of criminal responsibility by this provision (ts 472).

[T]he defence is founded on the existence of a belief. What a person believes at any given time is a matter of fact ...

It is, as I say, not for [the appellant] to satisfy you that he did hold the requisite belief, but rather it is for the Crown to satisfy you beyond reasonable doubt that he did not hold such a belief. The belief must be that circumstances of sudden or extraordinary emergency existed. Please note that the requisite belief is not as to sudden and extraordinary emergency but as to sudden or extraordinary emergency. The belief may be as to a sudden emergency or as to an extraordinary emergency.

It is important to realise that there need not actually be, objectively speaking, a sudden or extraordinary emergency but rather a belief on the part of [the appellant] that such circumstances existed at the relevant time ...

[Y]ou must first consider as a matter of fact what [the appellant's] belief at the time was. So you've got to decide whether or not you conclude as a matter of fact that he did hold the requisite belief as to the existence of the circumstances. If so it is not a question of whether he thought it was reasonable [to] hold that belief but rather whether you objectively consider, having regard to his circumstances and those which surrounded him at the time, it was reasonable for him to hold such a belief; in other words, were there at the time reasonable grounds for holding the belief that circumstances of sudden or extraordinary emergency existed.

You will need to consider the context in which [the appellant] found himself at the time ... What is required for the defence to operate is a belief in addition that committing the offence is the only reasonable way to deal with the emergency, and that the conduct is a reasonable response to the emergency (ts 473 - 474).

66 The trial judge dealt with the elements of the defence, in the context of the facts and circumstances of the case, in this manner:

The circumstances involved ... it would seem, a country in the grip of a crisis in which two groups, the LTTE, the Liberation Tigers of Tamil Eelam, or in brief the Tamil Tigers or otherwise referred to as the movement, on the one hand and the Government and its army and policing services on the other. Those two groups appear on the evidence to have been in a conflict akin to a civil war. You've heard evidence of there being conflict between two ethnic groups present in Sri Lanka, the Tamils and the Sinhalese. It would appear that the Government forces were predominantly Sinhalese, and that the Tamil community or members of it were from time to time under suspicion for assisting or being members of the Liberation Tigers of Tamil Eelam.

There must be more to the belief than just a belief as to the existence of a sudden or extraordinary emergency. What is required for the defence to operate is a belief in addition that committing the offence is the only reasonable way to deal with the emergency, and that the conduct is a reasonable response to the emergency.

Firstly, there must as a matter of fact be a belief that organising or facilitating the bringing or coming to Australia of the people onboard the vessel was the only reasonable way to deal with the emergency, and secondly, there must as a matter of fact be a belief that doing so was a reasonable response to the emergency.

Whether what [the appellant] did; that is, committing the acts which would on the face of it comprise the offence, was the only reasonable way to deal with the circumstances which he believed to exist is a matter for you.

Whether what he did was a reasonable response to the circumstances which he believed to exist is similarly a matter for you to determine. In other words, his own assessment of the reasonableness or otherwise of what he did is neither here nor there. The question is an objective one for you to judge.

You should bear in mind that he was not in our country at the relevant time but in a country where very different circumstances to those which we experience existed. The ordinary way in which an Australian citizen responds to an emergency is to seek the help of police or emergency services, if that is reasonably possible or practical. More often than not it is, particularly for those in our urban communities. The circumstances faced by [the appellant], and perhaps many of his fellow passengers on the boat, were, you might think, very different.

The Commonwealth submits to you that committing the offence was not the only reasonable way to deal with the emergency and was not a reasonable response to the situation in which the accused man found himself.

The defence says that [the appellant's] only reasonable means of escape from the circumstances in which he found himself was by boat bound for Australia. That exercise, says the defence, could only be achieved in the manner that it was, because the journey to Australia could not be undertaken by the accused man alone, that it had to be undertaken in a larger vessel capable of reaching Australia with the assistance of others onboard. In effect, the number involved in the journey, says the defence, represented approximately the cost of the vessel, its provisioning and readiness, and did not involve any profit element on the part of [the appellant] or others (ts 473 - 475).

67 His Honour completed his summing up at 11.45 am on 17 November 2010, and the jury retired to consider its verdict (ts 510).

68 Neither defence counsel nor the prosecutor sought any redirection or additional direction (ts 508, 510).

The jury's questions and the trial judge's answers

69 At about 2.17 pm on 17 November 2010, the trial judge received two questions from the jury, as follows:

The first is: Can we please have the Judge's definition of extraordinary emergency again, please? And the second is: Is it correct that if the accused believed or thought that he acted as a result of an extraordinary emergency by coming to Australia, that he had a reason/case for leaving Sri Lanka? (ts 514)

70 His Honour discussed the questions and his proposed answers with defence counsel and the prosecutor. His Honour said, in the course of this discussion, that the jury had requested 'the Judge's definition of extraordinary emergency again', and he noted (correctly) that:

(a) he did not think he had given the jury a definition of 'extraordinary emergency' in his summing up (ts 511); and

(b) it was apparent that the jury 'don't have a problem with sudden' (ts 512).

71 The jury returned at 2.26 pm and the trial judge gave these answers:

The very short answer to that second question is no. But I'll come back to that in a moment, because what I'd like to deal with is the first question, which is the Judge's definition of extraordinary emergency.

I didn't actually define those two words or that phrase because they're words in everyday usage. We use the word 'extraordinary', generally speaking, to mean something that is not ordinary, something that's out of the ordinary, something that is unusual or remarkable or out of the usual course. We use the word 'emergency' to describe a circumstance that requires that there be some immediate action. So in a medical situation, it may be that somebody has to have emergency surgery to deal with a problem that has presented itself and needs to be dealt with with some immediacy rather than being put off until later. So an extraordinary emergency in that sense is something that's out of the ordinary, something that's unusual or remarkable, and is something which needs to be dealt with by some degree of immediacy, actions sooner rather than later. We have in Australia, of course, a body called Fire and Emergency Services. And that body is trained to act to situations of emergency, to deal quickly with, for example, a fire, something that can't be dealt with that. So there we are. I can't take that phrase or those two words much further, because, as I say, they're words in ordinary usage and you attribute to them the meaning that you would ordinarily attribute to those words and that phrase.

Coming to the second of the two questions, I want to reiterate what I said about the defence of sudden or extraordinary emergency. It's provided for in the Commonwealth Criminal Code. In particular, the Code says that 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. The defence applies if, and only if, the person carrying out the conduct reasonably believes that (a) circumstances of sudden or extraordinary emergency exist, and (b) committing the offence is the only reasonable way to deal with the emergency, and (c) the conduct is a reasonable response to the emergency.

And I pointed out that it's important that you must bear in mind that it is for the Commonwealth to satisfy you beyond reasonable doubt that [the appellant] is not relieved of criminal responsibility by this provision. It's not for him to prove this defence. It's for the Commonwealth to exclude it to the requisite standard.

So coming back to your question, 'if the accused believed or thought', well, believed and thought are probably synonymous. What one thinks or one believes is about the same, I would imagine. It's a state of mind. It's what you have in your mind about a particular state of affairs. In everyday experience, we either believe things or we don't believe things. And what's required in relation to this matter is a belief that circumstances of a sudden or extraordinary emergency exist, and that committing the offence is the only reasonable way to deal with the emergency, and the conduct is a reasonable response to the emergency. So they're the three facets of the belief, so to speak. As I said to you, it's not a question of whether [the appellant] thought it was reasonable to believe these things, if he did have that belief, but rather whether you, the jury, having regard to the circumstances in which he found himself at that time, think it's reasonable for him to hold those beliefs. So the first part of your deliberations will involve that question of fact; whether he held a belief in those terms or not, because the defence is predicated on he believing certain things, the things that I outlined when I mentioned (a), (b) and (c). If you conclude as a matter of fact that he didn't hold that belief, then the defence itself doesn't get off the ground, so to speak. If he did, then it's a question of whether there were reasonable grounds for him so believing. Was it reasonable for him, in all the circumstances as you find them to be, to hold those beliefs? So the second question that you've raised somewhat simplifies it, because the question that you ask is: Is it correct that if the accused believed or thought he acted as a result of an extraordinary emergency by coming to Australia, that he had a reason/case for leaving Sri Lanka?

Well, the answer, as I say, in simple terms is no, because one doesn't necessarily result in or acquaint with the other. But I can only come back to the way in which the Commonwealth Criminal Code stipulates - or defines the offence - the defence; that is, as I say, it's predicated on - it applies if, and only if, the person carrying out the conduct reasonably believes that (a) circumstances of sudden or extraordinary emergency exist, and (b) committing the offence is the only reasonable way to deal with the emergency, and (c) the conduct is a reasonable response to the emergency. So as I say, the first part of your analysis is whether or not he had those beliefs. That's a subjective question, I suppose, because you're looking at what he said and did. You're perhaps employing inferential reasoning to arrive at a conclusion based on all of those circumstances and what he said and did at a particular time to arrive at a conclusion of fact as to what it was he believed at that time. I mean, a person can say what they believe. And if you accept them to be truthful and accurate and reliable, then you can accept what they say. Otherwise, as I say, you might rely on inferential reasoning. The second part, having decided that question of fact, is to decide whether you think, objectively speaking, it was reasonable to hold those beliefs having regard to all the circumstances in which he found himself at that time. Now, if I go on, I'm in danger of simply repeating myself (ts 515 - 517).

72 Neither defence counsel nor the prosecutor sought any redirection or additional direction in relation to his Honour's answers (ts 517).

73 At 2.36 pm, the jury retired to further consider its verdict (ts 517).

74 At 6.40 pm on 17 November 2010, the jury returned with a unanimous verdict of guilty (ts 522).

75 The sole ground of appeal asserts that the trial judge misdirected the jury on the defence of sudden or extraordinary emergency.

76 The appellant relies on four particulars of the ground:

(a) Particular (1): by referring to an 'emergency' as an event requiring 'immediate action', his Honour wrongly gave the impression to the jury that delay was determinative in relation to the availability of the defence.

(b) Particular (2): his Honour gave the jury a definition of 'emergency', and examples of what constitutes an emergency, that were inappropriate to the circumstances of the case.

(c) Particular (3): his Honour failed adequately to direct the jury to consider the reasonableness of the appellant's beliefs, rather than the reasonableness of his actions.

(d) Particular (4): his Honour failed adequately to link the burden and standard of proof to the elements of the defence.

77 On 20 March 2011, Mazza J granted leave to appeal on the sole ground.

The Crown's concession as to the satisfaction of the evidential burden

78 At the hearing of the appeal, counsel representing the Crown conceded for the purposes of the appeal, consistently with the trial judge's ruling, that the appellant had satisfied the evidential burden at trial (appeal ts 25). The appeal was argued on that basis.

Particulars (1) and (2) of the ground of appeal: their merits

79 It is convenient to consider particulars (1) and (2) of the ground of appeal together.

(a) by referring to an 'emergency' as an event requiring 'immediate action', the trial judge wrongly gave the impression to the jury that delay was determinative in relation to the availability of the defence; and

(b) his Honour gave the jury a definition of 'emergency', and examples of what constitutes an emergency, that were inappropriate to the circumstances of the case.

81 The trial judge, in answering the jury's question about the meaning of 'extraordinary emergency', instructed it:

(a) The word 'extraordinary' means 'something that is not ordinary, something that's out of the ordinary, something that is unusual or remarkable or out of the usual course' (ts 515).

(b) The word 'emergency' describes 'a circumstance that requires that there be some immediate action' (ts 515).

(c) An 'extraordinary emergency' is therefore 'something that's out of the ordinary, something that's unusual or remarkable, and is something which needs to be dealt with by some degree of immediacy, actions sooner rather than later' (ts 515).

82 His Honour illustrated his instructions as to the meaning of 'extraordinary emergency' by the following examples:

(a) In 'a medical situation', someone may require 'emergency surgery to deal with a problem that ... needs to be dealt with with some immediacy rather than being put off until later' (ts 515).

(b) In Australia, there is 'a body called "Fire and Emergency Services" ... [and] that body is trained to [react] to situations of emergency, to deal quickly with, for example, a fire ... ' (ts 515).

83 The trial judge then told the jury that he could not 'take that phrase or those two words much further, because ... they're words in ordinary usage and you attribute to them the meaning that you would ordinarily attribute to those words and that phrase' (ts 515).

84 In my opinion, his Honour misdirected the jury in answering its question about the meaning of 'extraordinary emergency'.

85 The term 'extraordinary emergency', in its natural and ordinary meaning, does not necessarily connote circumstances involving an existing, imminent or anticipated danger that requires immediate action. Circumstances involving an existing, imminent or anticipated danger may constitute an 'extraordinary emergency' even though the danger does not require immediate action.

86 Delay by an accused in responding to alleged circumstances of emergency, which he or she allegedly reasonably believed existed, is a relevant factor in deciding whether the Crown has negatived beyond reasonable doubt a matter specified in par (a), (b) or (c) of s 10.3(2), but the delay is not, of itself, decisive.

87 The trial judge's answer was likely to have conveyed to the jury the impression that the circumstances pointed to by the appellant, as constituting an 'emergency', would not be an 'extraordinary emergency', for the purposes of the defence, unless those circumstances required that some immediate action be taken.

88 This misdirection was compounded by the examples his Honour gave the jury. They were likely to have reinforced the impression that circumstances would not constitute an 'extraordinary emergency', for the purposes of the defence, unless those circumstances demanded some immediate action.

89 The impression likely to have been conveyed to the jury by the trial judge's answer and examples would have materially affected, adversely to the appellant, the jury's assessment as to whether the Crown had negatived beyond reasonable doubt the defence of extraordinary emergency.

90 His Honour's answer to the jury's question occurred at a significant point in the trial. The summing up was completed at 11.45 am on 17 November 2010, and the jury then retired to consider its verdict. The answer to the jury's question was provided at 2.26 pm. The verdict of guilty was returned at 6.40 pm. As Mason and Wilson JJ observed in Quartermaine v The Queen [1980] HCA 29; (1980) 143 CLR 595:

A misdirection at a stage when a jury has returned to seek an answer to a specific question will generally be a matter of grave import, requiring serious consideration in any appellate review, for the reason that being isolated from the charge itself it is likely to carry great weight with the jury (612).

See also Mason v The State of Western Australia [2005] WASCA 125; (2005) 30 WAR 205 [39] (Steytler P, Wheeler & Roberts-Smith JJA).

91 Particulars (1) and (2) of the ground of appeal have been made out.

Particular (3) of the ground of appeal: its merits

92 Counsel for the appellant submitted that the trial judge failed adequately to direct the jury to consider the reasonableness of the appellant's beliefs, as distinct from the reasonableness of his actions.

93 Counsel for the appellant referred to this passage in his Honour's summing up:

There must be more to the belief than just a belief as to the existence of a sudden or extraordinary emergency. What is required for the defence to operate is a belief in addition that committing the offence is the only reasonable way to deal with the emergency, and that the conduct is a reasonable response to the emergency.

Firstly, there must as a matter of fact be a belief that organising or facilitating the bringing or coming to Australia of the people onboard the vessel was the only reasonable way to deal with the emergency, and secondly, there must as a matter of fact be a belief that doing so was a reasonable response to the emergency.

Whether what [the appellant] did; that is, committing the acts which would on the face of it comprise the offence, was the only reasonable way to deal with the circumstances which he believed to exist is a matter for you.

Whether what he did was a reasonable response to the circumstances which he believed to exist is similarly a matter for you to determine. In other words, his own assessment of the reasonableness or otherwise of what he did is neither here nor there. The question is an objective one for you to judge (ts 474). (emphasis added)

94 It was submitted, on behalf of the appellant, that the jury was likely to have understood from this passage that it was required to consider whether the appellant's actions were objectively reasonable, rather than whether he reasonably believed, in terms of s 10.3(2)(b) and s 10.3(2)(c), that:

(a) committing the offence was the only reasonable way to deal with the emergency; and

(b) the conduct was a reasonable response to the emergency.

95 It was submitted, on behalf of the appellant, that the misleading character of the passage was exacerbated by other passages in the summing up, namely:

(a) His Honour made these comments about arguments put by the prosecutor and defence counsel:

The Commonwealth submits to you that committing the offence was not the only reasonable way to deal with the emergency and was not a reasonable response to the situation in which [the appellant] found himself. The defence says that [the appellant's] only reasonable means of escape from the circumstances in which he found himself was by boat bound for Australia' (ts 475);

(b) His Honour said, in summarising the Crown's case, that the questions for the jury to consider were:

Was there, [the prosecutor] said, a belief that there were circumstances of sudden or extraordinary emergency? Was the response in organising 31 other people the only other reasonable response to the emergency? (ts 502)

96 According to counsel for the appellant, the terms of the jury's second question indicated that the jury erroneously understood that it was necessary to assess the reasonableness of the appellant's conduct, rather than the reasonableness of his beliefs.

97 It is, of course, essential to examine the impugned passage by reference to the whole of the summing up. See Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193 [72] (Kirby J).

98 Earlier in his summing up, the trial judge had directed the jury that the defence was 'founded upon a belief, on the part of [the appellant], in effect, that he [could] only respond to the sudden or extraordinary emergency faced by him by committing the offence' (ts 460). (emphasis added)

The defence applies if, and only if, the person carrying out the conduct reasonably believes (a) that circumstances of sudden or extraordinary emergency exist, and (b) that committing the offence is the only reasonable way to deal with the emergency, and (c) that the conduct is a reasonable response to the emergency (ts 472). (emphasis added)

100 On the page of the transcript immediately before the page containing the impugned passage primarily relied on by counsel for the appellant, his Honour said:

[T]he defence is founded on the existence of a belief. What a person believes at any given time is a matter of fact ...

It is, as I say, not for [the appellant] to satisfy you that he did hold the requisite belief, but rather it is for the Crown to satisfy you beyond reasonable doubt that he did not hold such a belief. The belief must be that circumstances of sudden or extraordinary emergency existed. Please note that the requisite belief is not as to sudden and extraordinary emergency but as to sudden or extraordinary emergency. The belief may be as to a sudden emergency or as to an extraordinary emergency.

It is important to realise that there need not actually be, objectively speaking, a sudden or extraordinary emergency but rather a belief on the part of [the appellant] that such circumstances existed at the relevant time.

The Code provides that if any part of a defence is based - that is, the Criminal Code - the Commonwealth Code provides that if any part of a defence is based on a reasonable belief, in determining whether that reasonable belief existed, regard must be had to the standard of a reasonable person who is not intoxicated. Now, there's no suggestion in this case that [the appellant] at any relevant time was intoxicated. The reference to a reasonable person, however, makes it clear that in considering this matter, you must first consider as a matter of fact what [the appellant's] belief at the time was (ts 473). (emphasis added)

101 His Honour instructed the jury, in answering its second question:

In everyday experience, we either believe things or we don't believe things. And what's required in relation to this matter is a belief that circumstances of a sudden or extraordinary emergency exist, and that committing the offence is the only reasonable way to deal with the emergency, and the conduct is a reasonable response to the emergency. So they're the three facets of the belief, so to speak. As I said to you, it's not a question of whether [the appellant] thought it was reasonable to believe these things, if he did have that belief, but rather whether you, the jury, having regard to the circumstances in which he found himself at that time, think it's reasonable for him to hold those beliefs. So the first part of your deliberations will involve that question of fact; whether he held a belief in those terms or not, because the defence is predicated on he believing certain things, the things that I outlined when I mentioned (a), (b) and (c) ... If he did, then it's a question of whether there were reasonable grounds for him so believing. Was it reasonable for him, in all the circumstances as you find them to be, to hold those beliefs? ...

[T]he defence ... applies if, and only if, the person carrying out the conduct reasonably believes that (a) circumstances of sudden or extraordinary emergency exist, and (b) committing the offence is the only reasonable way to deal with the emergency, and (c) the conduct is a reasonable response to the emergency. So as I say, the first part of your analysis is whether or not [the appellant] had those beliefs. That's a subjective question, I suppose, because you're looking at what [the appellant] said and did. You're perhaps employing inferential reasoning to arrive at a conclusion based on all of those circumstances and what [the appellant] said and did at a particular time to arrive at a conclusion of fact as to what it was [the appellant] believed at that time. I mean, a person can say what they believe. And if you accept them to be truthful and accurate and reliable, then you can accept what they say. Otherwise, as I say, you might rely on inferential reasoning. The second part, having decided that question of fact, is to decide whether you think, objectively speaking, it was reasonable to hold those beliefs having regard to all the circumstances in which [the appellant] found himself at that time (ts 516 - 517). (emphasis added)

102 In my opinion, there is no reasonable possibility that the impugned passages may have caused:

(a) the jury to have formed the impression that the focus of its attention should be the reasonableness of the appellant's actions, rather than the reasonableness of his alleged beliefs; or

(b) the jury to have been confused or misled as to the elements of the defence.

103 I am of that opinion for the following reasons. First, when the impugned passages are read in the context of the summing up as a whole (in particular, the other passages that I have set out), it is apparent that his Honour adequately explained to the jury the distinction between the subjective and the objective components of the defence. Secondly, his Honour referred, on several occasions, to the appellant's 'belief' (and not his 'actions') in directing the jury about the subjective components. Thirdly, his Honour referred, on several occasions, to the reasonableness of any 'belief' held by the appellant (and not the reasonableness of his 'actions') in directing the jury about the objective components. Fourthly, in the impugned passages his Honour was concentrating, at those points in his summing up, on the objective components. Although s 10.3(2) is concerned with whether the accused reasonably believed the matters specified in pars (a), (b) and (c), the reasonableness of his or her actions in response to the alleged circumstances of sudden or extraordinary emergency are relevant in assessing the reasonableness of any belief held by the accused in relation to the matters specified in pars (b) and (c). Fifthly, it is apparent from the terms of the jury's second question that it was seeking clarification in relation to the application of the elements of the defence to the facts of the case. It is not apparent, however, that the jury were likely to have required clarification as a result of having been led into error by the impugned passages. Sixthly, in any event, any conceptual or linguistic deficiencies in the impugned passages were unequivocally remedied in his Honour's answer to the jury's second question. The return of the jury to seek an answer to this question indicates that the answer was likely to have carried significant weight with it.

104 Particular (3) of the ground of appeal is without merit.

Particular (4) of the ground of appeal: its merits

105 Counsel for the appellant submitted that the trial judge failed adequately to link the burden and standard of proof to the elements of the defence.

106 It was submitted, on behalf of the appellant, that his Honour's directions on the burden and standard of proof were likely to have confused the jury.

107 The trial judge said, unexceptionally, in his summing up, that '[t]here is a defence raised which must be excluded beyond reasonable doubt by the prosecution' (ts 502) and that '[t]he Crown [carries] the burden of proof throughout ... [t]he standard of proof being proof beyond reasonable doubt' (ts 506).

108 However, counsel for the appellant complained about the following directions of his Honour in relation to the defence under s 10.3.

[T]here must as a matter of fact be a belief that organising or facilitating the bringing or coming to Australia of the people onboard the vessel was the only reasonable way to deal with the emergency, and secondly, there must as a matter of fact be a belief that doing so was a reasonable response to the emergency (ts 474).

110 It was submitted that the reference to whether or not the relevant belief existed 'as a matter of fact' was likely to have conveyed to the jury that the appellant was required to establish the belief as a matter of fact.

111 Secondly, in answering the jury's second question, his Honour said:

If you conclude as a matter of fact that he didn't hold that belief, then the defence itself doesn't get off the ground, so to speak. If he did, then it's a question of whether there were reasonable grounds for him so believing (ts 516).

112 It was submitted that the reference to the defence not '[getting] off the ground' if the appellant did not hold the relevant belief, was also likely to have conveyed to the jury that the appellant was required to establish the belief as a matter of fact.

113 Counsel representing the Crown acknowledged, with commendable frankness, the deficiencies in the directions about which counsel for the appellant complained.

114 The critical question is whether there is a reasonable possibility that the impugned directions, upon evaluation in the context of the summing up as a whole, may have confused or misled the jury about the burden and standard of proof or their application to the elements of the defence.

115 In my opinion, the directions complained about by counsel for the appellant were material misdirections. My reasons for that opinion are these.

116 First, although the elements of the defence in s 10.3(2) are expressed positively as matters in respect of which the appellant must have a reasonable belief, if the accused satisfies the evidential burden then the Crown has the legal burden of negativing beyond reasonable doubt at least one element of the defence. In the present case, his Honour ruled that the appellant had satisfied the evidential burden. Accordingly, the issue for the jury was whether the Crown had negatived the defence beyond reasonable doubt.

117 Secondly, his Honour's statement to the jury, in his summing up, that 'there must as a matter of fact be a belief' by the appellant that the appellant's conduct was 'the only reasonable way to deal with the emergency', and was 'a reasonable response to the emergency', misstated an essential aspect of the jury's task. This essential aspect was that the burden was on the Crown to prove beyond reasonable doubt that the appellant did not hold at least one of the requisite beliefs. If the jury thought there was a reasonable possibility (which it could not exclude) that he did hold the requisite beliefs, then the Crown would not have proved beyond reasonable doubt that the appellant did not hold a requisite belief. It was unnecessary for the jury to make a positive finding of fact as to whether he did or did not hold the requisite beliefs, as distinct from concluding there was a reasonable possibility (which it could not exclude) that he did hold the requisite beliefs.

118 Thirdly, his Honour's statement to the jury, in answering its second question, that if the jury concluded 'as a matter of fact' that the appellant did not hold the belief, 'then the defence itself doesn't get off the ground' and that, if he did hold the belief, then the issue was 'whether there were reasonable grounds for him so believing', was confusing. As I have mentioned, his Honour ruled that the appellant had satisfied the evidential burden. The focus for the jury was whether the Crown had negatived the defence beyond reasonable doubt, and not whether the appellant held the requisite beliefs and, if he did, whether there were reasonable grounds for him so believing.

119 Fourthly, the misdirections I have identified were specific and, in the case of the second misdirection, was given in response to a question from the jury after it had retired to consider its verdict. I am not persuaded that their prejudice to the appellant was overcome by his Honour's general directions, in his summing up and in answer to the jury's question, about the operation of the burden and standard of proof in relation to the exclusion of the defence.

120 The trial judge could have avoided any difficulties in linking the burden and standard of proof to the elements of the defence if he had fashioned his directions in a manner consistent with this framework:

(a) The Crown must prove beyond reasonable doubt that the accused did not carry out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency.

(b) The Crown may discharge that burden by proving, beyond reasonable doubt, that:

(i) the accused did not, at Negombo, Sri Lanka or on the seas between Sri Lanka and Barrow Island, believe that:

(A) circumstances of sudden or extraordinary emergency existed in Sri Lanka; or

(B) committing the offence was the only reasonable way to deal with the emergency; or

(C) the conduct constituting the offence was a reasonable response to the emergency; or

(ii) if the accused did believe each of those matters, the accused's belief in relation to any of them was not reasonable.

121 Particular (4) of the ground of appeal has been made out.

122 The errors identified in particulars (1), (2) and (4) of the ground of appeal occasioned a miscarriage of justice.

123 I would allow the appeal. The judgment of conviction should be set aside and a new trial ordered.

124 HALL J: I agree with Buss JA that this appeal should be allowed and a retrial ordered. I generally agree with the reasons of Buss JA but I wish to make some comments of my own.

125 The phrase 'sudden or extraordinary emergency' allows for the possibility that an emergency may be either sudden or extraordinary. It may, but need not necessarily, be both: see Nguyen v The Queen [2005] WASCA 22. Thus it is an error to suggest that for the exception to be operative there must necessarily be an element of suddenness.

126 The phrase 'sudden or extraordinary emergency' is also used in s 25 of the Criminal Code (WA). It has been held in that context that the words have their usual and ordinary meaning. Furthermore, a trial judge is not obliged to give directions as to the meaning of the phrase, to draw a distinction between the word 'sudden' and the word 'extraordinary' or to give any examples of what may constitute a sudden or extraordinary emergency: Smith v The State of Western Australia [2010] WASCA 205 [41] - [42] (McLure P, Owen JA agreeing), [169] - [170] (Mazza J).

127 To say that words have their natural and ordinary meaning assumes that the words require no explanation. The difficulty is that the ordinary meaning of the word 'emergency' does include a time imperative, as dictionary definitions bear out. The Shorter Oxford Dictionary defines 'emergency' as a situation especially of danger or conflict that arises unexpectedly and requires urgent action or something which occurs suddenly or unexpectedly. The Macquarie Dictionary gives the meaning of the word as an unforeseen occurrence; a sudden and urgent occasion for action. These definitions reflect how the word 'emergency' is commonly used.

128 If the word 'emergency' is understood in the way described there is tension between the words 'sudden' or 'extraordinary' and 'emergency'. If the words are intended to refer to different (though overlapping) classes of emergency then it is possible to have an emergency which is extraordinary but not sudden. It may be thought that a non-sudden emergency is self-contradictory. However, it remains necessary to give meaning to the phrase as used in s 10.3 of the Criminal Code (Cth). The apparent inconsistency is resolved by ascribing a meaning to 'emergency' that extends beyond circumstances that are urgent or time imperative.

129 The same problems do not arise with the word 'necessity', which is the word usually used to describe the common law defence. An action may be rendered necessary by circumstances that are not urgent or immediate: See Rogers (1996) 86 A Crim R 542, 546 (Gleeson CJ). Though there have been suggestions that necessity is limited by urgency these have been driven by broader policy considerations and not, as here, by the interpretation of a statutory provision: See Loughnan [1981] VicRp 43; [1981] VR 443.

130 It is possible to draw a meaningful distinction between a sudden emergency and an extraordinary emergency. It has been said that a sudden emergency is one which comes upon the accused unexpectedly, catching him or her off guard. This type of emergency incorporates a sense of immediate danger, one which will occur almost instantaneously unless the accused takes countervailing action. In this case there may be little opportunity for calm reflection or for the mustering of resolve or fortitude. In contrast, an extraordinary emergency may denote a situation of extreme gravity and abnormal or unusual danger that might well have occurred suddenly but persists over a period of time: See Yeo SMH, Necessity Under the Griffiths Code and the Common Law (1991) Criminal Law Journal 15, 17.

131 Whilst those categorisations appear sensible and reflect the purpose of provisions such as s 10.3 of the Criminal Code (Cth) they are impelled by the need to make sense of the phrase 'sudden or extraordinary emergency' in its statutory context rather than being dictated by the natural or ordinary meaning of the words contained within it. This would suggest that in some circumstances an application of s 10.3 to the facts of the case may require an explanation by the trial judge of the ambit of 'emergency' when used in this context. That will be particularly so where the emergency relied on could not be said to be sudden, but is, nonetheless, said to be extraordinary.

132 In the present case the trial judge gave directions in his summing up that adequately set out the components of s 10.3. His Honour directed the jury that the provision was open if the accused reasonably believed that there was a sudden emergency or an extraordinary emergency. However, he went no further at that stage in explaining how an emergency might be extraordinary but not sudden. Whilst there is no general obligation to do so, there is an obligation to relate emergency to the facts of the case. When his Honour did that he continued to speak in terms of sudden or extraordinary emergency notwithstanding that this was a case involving an emergency that was said to be extraordinary not sudden.

133 The fact that the jury asked the question that it did reflects an understandable difficulty in appreciating how an emergency (in common parlance) can be extraordinary but not sudden. For my part, I would have thought that in these circumstances some explanation was required and to tell the jury only that the words had their ordinary and natural meaning would have been distinctly unhelpful. In my view, the trial judge was right to think something more was required. The question then is whether what he said was correct.

134 The redirection that was given by the trial judge was inappropriate because it stressed the commonly understood meaning of 'emergency'. That is, by the examples he gave the trial judge effectively limited the meaning of emergency to urgent situations requiring immediate action. This would have risked causing the jury to discount the possibility of an extraordinary emergency in the sense I have referred to earlier.

135 It is understandable that in the circumstances the trial judge felt a need to assist the jury given the question that had been asked. His Honour had in his original directions carefully avoided any error of the type that was made in Nguyen. Unfortunately in his redirections he effectively made the same error by defining 'emergency' and giving examples of it that were only consistent with a sudden emergency. That error was significant in this context because the emergency relied upon was more in the nature of an extraordinary than a sudden one.

136 In those circumstances, there is a significant possibility that the appellant has lost the chance of an acquittal.