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Court of Criminal Appeal 22 May 2013

Zamudin v R

[2013] NSWCCA 120

Other
CRIMINAL LAW RELEVANCE OF LIES BY APPLICANT CONVICTION QUASHED

Citation: Zamudin v R [2013] NSWCCA 120
Court: Court of Criminal Appeal, New South Wales
Date: 22 May 2013
Judge(s): Macfarlan JA, Campbell J, Barr AJ

Background

The appellant was an Indonesian crewman aboard a vessel carrying 97 asylum seekers that was intercepted by the Royal Australian Navy approximately 1.31 nautical miles from Christmas Island in December 2010. He and two co-accused were convicted by jury of facilitating the bringing of non-citizens to Australia in circumstances where they were reckless as to whether those persons had a lawful right to enter, contrary to s 233C(1) of the Migration Act 1958 (Cth).

At trial, the appellant gave evidence that he had been recruited in Surabaya by two strangers who offered him 7.5 million Rupiah (more than a year's wages) to work on a boat. He said he asked where the vessel was going but was told not to ask questions if he wanted to be paid. His role was to attend to the engine and assist briefly with steering.

The appellant sought leave to appeal his conviction on the ground that the verdict was unreasonable and not supported by the evidence. The sole issue on appeal was whether the Crown had proved beyond reasonable doubt that he knew the vessel or its passengers were destined for Australia.

  • Whether knowledge that the destination of persons being assisted is Australia is an essential element of an offence under s 233C(1) of the Migration Act 1958 (Cth).
  • Whether the Crown proved beyond reasonable doubt that the appellant possessed that knowledge, given the limited case it ran at trial.
  • Whether the jury's guilty verdict was unreasonable or unsupported by the evidence within the meaning of s 6(1) of the Criminal Appeal Act 1912.

Decision

The Court of Criminal Appeal unanimously agreed that knowledge of the Australian destination is an essential element of the s 233C(1) offence, consistent with the earlier decision in Sunada v R [2012] NSWCCA 187. The Crown was therefore required to establish this knowledge beyond reasonable doubt.

Critically, the Crown had limited its case at trial to a specific proposition: that the appellant knew before the vessel left Indonesia because someone had told him. The Court held that the Crown was bound by that confined case on appeal. There was no direct evidence that anyone had in fact told the appellant the destination was Australia, and the Crown's own closing address at trial acknowledged that the appellant's account of the recruitment was "for the most part more plausible."

The Court examined whether the appellant's lies or implausible aspects of his evidence could sustain an inference of guilt. Applying the principles in Zoneff v The Queen, the Court found that any lies the appellant may have told did not fill the gap in the Crown's case. The core of his evidence, that he was told not to ask where the boat was going, was found to be plausible and consistent with the known behaviour of people smuggling organisers, who have every reason to keep crew members uninformed.

All three judges concluded that guilt had not been proved beyond reasonable doubt. The verdict was held to be unreasonable, and there was no basis on which a retrial could be ordered.

Orders Made

  • Leave to appeal granted.
  • Conviction quashed.
  • Verdict of acquittal entered.

Key Takeaways

  • Knowledge that the destination is Australia is an essential element of a people smuggling offence under s 233C(1) of the Migration Act 1958 (Cth), and the Crown must prove that knowledge beyond reasonable doubt.
  • Where the Crown limits its case at trial to a specific factual basis, it is bound by that case on appeal and cannot rely on a broader evidentiary foundation.
  • A defendant's lies or implausible answers do not automatically sustain a conviction; under Zoneff v The Queen, lies can only support guilt where guilt itself is otherwise established by the evidence.
  • The Court of Criminal Appeal confirmed that it is in as good a position as the jury to assess reliability where evidence was given through an interpreter and demeanour assessment was unavailable.
  • Plausible defence evidence that the appellant was told not to ask questions about the destination, combined with the weak Crown case, was sufficient to prevent satisfaction of guilt beyond reasonable doubt.

Legislation and Cases Referenced

Legislation
- Migration Act 1958 (Cth), s 233C(1)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)

Cases
- Sunada v R [2012] NSWCCA 187
- Zoneff v The Queen [2000] HCA 28; 200 CLR 234
- Alomalu v R [2012] NSWCCA 255
- R v Razak [2012] QCA 244
- Zolmin v R [2012] QCA 355
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- M v The Queen [1994] HCA 63; 181 CLR 487
- R v Hillier [2007] HCA 13; 228 CLR 618
- Edwards v The Queen [1993] HCA 63; 178 CLR 193
- Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1
- Pereira v Director of Public Prosecutions [1988] HCA 57; 63 ALJR 1
- Bale v Mills [2011] NSWCA 226; 81 NSWLR 498
- Fonseka v The Queen [2003] WASCA 111; 140 A Crim R 395
- R v Anderson [2001] NSWCCA 488; 127 A Crim R 116