ORDERS
40For the reasons I have given, the applicant should be granted leave to appeal and his conviction should be quashed. As there is no basis upon which an order for a new trial could be justified, a verdict of acquittal should be entered.
41CAMPBELL J: I agree with Macfarlan JA, for the reasons his Honour gives, that the applicant should be granted leave to appeal, his conviction quashed, and a verdict of acquittal entered. I also agree with the additional comments of Barr AJ.
42As it is a serious step to set aside a conviction based on the verdict of a jury, I briefly wish to state my own conclusions.
43I wish to record that I have made my own independent assessment of the evidence. The question whether "the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence" (s 6(1) Criminal Appeal Act 1912 (NSW)) is, as Macfarlan JA points out, one of fact. The powers of this court to grant relief may be exercised notwithstanding that there is evidence upon which a jury might have convicted. In the present case, notwithstanding the clear rejection of Mr Zamudin's evidence by the jury, I doubt that there was evidence available capable of establishing against the applicant the second element of the offence, that is, that the applicant intended to facilitate the bringing of the passengers to a destination that was part of Australia, which he knew was part of Australia.
44I agree with Macfarlan JA's analysis that the Crown case at trial was advanced on a narrow front i.e. that at the time of his engagement in Indonesia, Mr Zamudin was told by the people smugglers that the destination was Australia: see Macfarlan JA at [24]. The applicant denied this and though the jury must have rejected his evidence in that regard, this is surprising given that the Crown acknowledged that the applicant's account, at least about those details, was plausible (Appeal Book 187.45 - 188.5).
45At trial, the Crown, notwithstanding the concession of the plausibility of Mr. Zamudin's account of his engagement, submitted that the jury should be satisfied beyond reasonable doubt that he was not telling the truth because of evidence he gave about other matters which the Crown submitted was "simply absurd": AB 189.15. The Crown submitted that this evidence damaged the applicant's credibility to such an extent that they should "reject also his denials of knowledge of the destination of the boat beyond reasonable doubt".
46As Macfarlan JA points out at [36], in some circumstances, lies told by an accused may be taken as evidence manifesting a consciousness of guilt. The Crown neither below nor on appeal relied upon that body of law, and therefore, it goes without saying, no direction relevant to that matter was sought or given. Moreover, the general rule is that the rejection of the testimony of the accused does not of itself permit an inference of guilt to be drawn. As counsel for the applicant pointed out in supplementary written submissions, the general rule was expressed by Kirby J (Sheller JA and Dowd J agreeing) in R v Anderson [2001] NSWCCA 488; 127 A Crim R 116 at [25] - [26]. It is sufficient to summarise the rule by quoting the concluding part of the direction his Honour thought customarily should be given when an accused has given evidence (at [26]):
...if you do not believe the accused, then you should put his testimony to one side. The question will remain; has the Crown, upon the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?
As the other authorities, which need not be set out here, referred to by learned counsel indicate, there is a substantial body of law establishing the correctness of this approach.
47At trial, the crown prosecutor said (AB 178 15-25]:
So I suppose what I should say is that there's no direct evidence in the Crown case to prove that [any of the crew] knew that the destination of the boat was Australia. How then does the Crown go about proving its case in respect of what the state of mind of each of the accused was? Well, his Honour will give you more detailed directions about this, but I think for present purposes I can be of some assistance in saying that what the Crown would ask you to do is to draw a conclusion from all the circumstances of the journey - in other words, from the circumstantial evidence - that the only reasonable conclusion you can draw is that each of the accused must have known that the destination of the boat was Australia.
48But even allowing for the rejection of the evidence of the applicant as a whole, what other circumstance was there to prove that the applicant was told at or about the time of his engagement that the boat's destination was Australia?
49To answer this question learned senior counsel who appeared for the Crown on appeal cited Fonseka v The Queen [2003] WASCA 111; 140 A Crim R 395 where Wheeler J said (at 398 [15]):
In my view, evidence as to the state of mind of persons on the vessel about their destination was capable of being circumstantial evidence against the appellant. As his Honour pointed out during the course of argument, if 68 people on a bus have a view that the bus has Claremont as its destination, it is a reasonable inference that the 69th person shares that view. So with the vessel, the understanding of others on the vessel was capable of giving rise to an inference about the appellant's state of mind in relation to that issue. Where the evidence related to the state of mind only of one other person on the vessel, it was obviously of less weight, but it could not in my view be said to have no weight whatever. The understanding of the person Gray as to the vessel's destination was therefore in my view a relevant fact.
50Senior counsel pointed out that Wheeler J's dictum was referred to by Fraser JA in R v Razak [2012] QCA 244 at [17], at least in footnote 5. Macfarlan JA has set out the material part of Fraser JA's judgment at [19], and points out material factual and evidential differences between this case and that at [20]. (See also [37] of his Honour's judgment). And, as I have said, I agree with his Honour's reasons.
51Moreover, in Zolmin v R [2012] QCA 355, McMurdo P (Holmes and White JJA agreeing), at [49], pointed out in relation to Wheeler J's approach:
Murray and Hasluck JJ agreed with Wheeler J that Fonseka's appeal should be allowed but on another ground. They did not join in Wheeler J's observations set out above. Those observations are therefore obiter and this court is not bound by them. Whether evidence is admissible as a piece of circumstantial evidence will depend on the admissible relevant evidence in each particular case. In the present case the passengers and the appellants spoke different languages and were unable to and did not communicate with each other about their destination or any issue other than food and cigarettes. The fact that five passengers believed they were travelling to Australia does nothing in this case to prove the appellants' state of knowledge as to the voyage's destination.
In my view her Honour's analysis is apposite to the circumstances of the present case. The admissible relevant evidence in this case did not extend to circumstances like those discussed by Fraser JA in Razak at [17]. Nor in my view could the jury infer, having regard to the way the Crown case was put to them, "that the Indonesian crew members, as the persons who implemented the contractual arrangements which passengers presumably entered into to be carried to Australia, would have been aware that Australia was their destination": Razak at [18]. I repeat that the plausibility of the recruiter's response to the applicant's question at the time of his engagement, effectively "don't ask", foreclosed this line of reasoning.
52I acknowledge that at trial, the Crown relied upon the intention of the passengers as a relevant circumstance (AB 179.30) to be weighed with all other circumstances. But in my view it was not a relevant circumstance because the Crown case hinged on what the applicant was told when he was engaged. That was before he joined the boat. And in fact, there was no evidence of any relevant contact between the applicant and the passengers, who spoke Farsi, not Indonesian. Any later contact therefore could not form part of all the circumstances available to found the inference, and as the only rational inference, that the plaintiff was told at the time of his engagement of the boat's destination.
53As the case against the applicant was a purely circumstantial case, the exercise by this Court of its statutory powers is informed by the judgment of Gummow, Hayne and Crennan JJ in R v Hillier [2007] HCA 13; 228 CLR 618. Neither a jury, nor an appeal court, is entitled to consider a circumstantial case "piecemeal": Hillier at 638 [48]. All the circumstances must be weighed; no part can be put to one side. At 639 [50] the plurality said:
...it is important to recognise that [the applicant] gave evidence at his trial. The Court of Appeal made no reference to this evidence when considering whether the jury's verdict should be set aside. One question which the jury was bound to consider was what they made of [the applicant's] evidence. Did they believe that [the applicant] may have been telling the truth when he denied responsibility for [the victim's] death? Or were they, as the verdict revealed, positively persuaded on a consideration of all of the evidence (including his) in that case that he was not? (Emphasis in the original).
As I have said, here the jury clearly rejected the applicant's evidence. That is to say, they must have been satisfied beyond reasonable doubt that he was not telling the truth. This is a matter which has caused me great concern when considering this case. However, I agree with Macfarlan JA that the quoted passage from Hillier does not displace the established principles I have referred to above at [46].
54I acknowledge that seeing and hearing the applicant give evidence is an advantage enjoyed by the jury, which cannot be re-created in this Court. However, I also agree with Barr AJ who explains that in the particular circumstances of this case, the jury enjoyed no great advantage over this Court. Having reviewed the whole of the evidence, I am of the view that the rejection of the applicant's evidence is not a circumstance, whether taken alone or in conjunction with all the other circumstances, from which it was open to a jury to draw the inference sought by the Crown, as the only rational inference available, that the applicant knew the destination of the vessel was Australia because that was what he had been told when he was engaged. Indeed, the proper concession of plausibility made by the Crown at trial is a telling reason why that inference was not the only inference open on the evidence.
55I doubt that the applicant is guilty of the crime of which he has been convicted. And in my judgment, this doubt was not capable of having been resolved at trial by the jury's advantage of seeing and hearing the witnesses give evidence. On the whole of the evidence, I am satisfied that it was not open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. There is a significant possibility that an innocent person has been convicted (M v The Queen [1994] HCA 63; 181 CLR 487 at 494). The Court is bound to act to set aside the verdict, and like Macfarlan JA, I am not satisfied beyond reasonable doubt that the proviso to s 6(1) is engaged.
56BARR AJ: I have had the advantage of reading in draft the judgment of Macfarlan JA and am grateful to his Honour for the summary of the facts set out therein. The Crown had to prove that the appellant knew that the destination of the vessel was Australia. It limited its case by undertaking to prove that he knew that before the vessel left Indonesia because somebody had told him. There was no direct evidence of that. The principal evidence in the Crown case was that the appellant made the voyage as a member of the crew and that the vessel was steered directly to Australia. Although he was not the steersman the appellant assisted for a short time in steering the vessel.
57The appellant gave evidence through an interpreter. Unfortunately, evidence given in that manner usually lacks spontaneity and the opportunity juries sometimes have of assessing the reliability of witnesses, for example by demeanour, is lost. In those circumstances the only remaining way of assessing reliability is by asking whether the evidence might self-evidently be true and by comparing it with all the other evidence in the case. In my opinion this Court is in as good as a position as the jury in performing that task.
58The details of the appellant's evidence are set out in the judgment of Macfarlan JA. If I may summarise what is for me the most important part of it, the appellant told the Court that he asked where the vessel was going but was told not to ask if he wanted to be paid. I think that those who organise, finance and profit from voyages of this kind know that if their craft reaches Australia the members of the crew will be arrested. It seems to follow that in recruiting crew for such voyages the less said by the organisers the better.
59I have read the evidence in the Crown case. In my opinion the case was weak and I would not have been prepared to infer the essential knowledge from the evidence. However, I do not need to deal with the detail because I find plausible the appellant's evidence that he did not know. It is quite possible that he was telling the truth. I cannot therefore be satisfied beyond reasonable doubt that he did know.
60I agree with Macfarlan JA that the appeal should be allowed, the verdict and sentence quashed and a verdict of acquittal entered.