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Court of Criminal Appeal 9 September 2013

Taru Ali v R

[2013] NSWCCA 211

Public order & justice offences
CRIMINAL LAW OFFENCES PEOPLE SMUGGLING S 233C MIGRATION ACT TWO PASSENGERS NO MISDIRECTION

Citation: Taru Ali v R [2013] NSWCCA 211
Court: NSW Court of Criminal Appeal
Date: 9 September 2013
Judges: Johnson J, Price J, R A Hulme J

Background

The appellant was a crew member on a wooden fishing vessel that departed from near Surabaya, Java, carrying 52 passengers bound for Ashmore Reef, an Australian territory located approximately 80 nautical miles south of Rote Island, Indonesia. He was at the helm when the Royal Australian Navy intercepted the vessel about six nautical miles from Ashmore Reef on 6 September 2010. The four crew and 52 passengers were transported to Christmas Island for processing.

The appellant was charged with aggravated people smuggling under s 233C of the Migration Act 1958 (Cth), which carries a maximum penalty of 20 years imprisonment. He was convicted after a jury trial in February 2012 and sentenced to five years imprisonment with a non-parole period of three years.

On appeal, the appellant did not challenge the sentence. His sole ground of appeal was that the trial judge misdirected the jury on the fault element of intention, specifically by directing that it was sufficient for the appellant to have intended to steer to Ashmore Reef, rather than requiring proof that he knew Ashmore Reef was part of Australia.

  • Whether, to establish the intention required under s 233C(1)(a) of the Migration Act, the prosecution must prove that the appellant knew Ashmore Reef was part of Australia, as distinct from proving he knew Australia was the ultimate destination of the voyage.
  • Whether the trial judge's directions to the jury on the knowledge element were adequate and correct in law.
  • Whether any misdirection, if established, would have affected the verdict given the evidence at trial.

Decision

R A Hulme J (with whom Johnson J and Price J agreed) examined the structure of the offence under s 233C. The physical element in s 233C(1)(a) is the conduct of organising or facilitating the bringing of persons "to Australia." Because no specific fault element is nominated in the section for that conduct, the default fault element under s 5.6(1) of the Criminal Code Act 1995 (Cth) applies, namely intention. Intention requires proof that the person meant to engage in the conduct, which in this context meant intending to bring or facilitate the bringing of persons to Australia.

The appellant argued that because Ashmore Reef was specifically named as the destination in the indictment, an additional element arose requiring proof that he knew Ashmore Reef was part of Australia. The court rejected that argument. The mention of a particular destination in the indictment does not transform the destination into a separate element of the offence. The relevant question remained whether the appellant intended to bring the passengers to Australia, wherever in Australia that might be.

On the facts, the evidence strongly supported the conclusion that the appellant knew Australia was the ultimate destination of the voyage. Passenger witnesses described conversations with the appellant about reaching Australian waters, instructions about what to tell the Navy upon interception, the appellant's own statement that he would be jailed while the passengers would go free, and payments made to him for getting the passengers safely to their destination. This was not a case, as in the earlier decision of Alomalu v R, where the evidence established only knowledge of Ashmore Reef as a destination without knowledge that it was in Australian waters. No misdirection was established.

Orders Made

  • Appeal against conviction dismissed.

Key Takeaways

  • Under s 233C(1)(a) of the Migration Act, the fault element of intention is directed at the conduct of bringing or facilitating the bringing of persons to Australia; proof that an accused knew the specific named destination was part of Australia is not a standalone additional element of the offence.
  • Naming a particular location in an indictment does not create an additional element beyond what the statute requires. The indictment's reference to Ashmore Reef described the circumstances of the alleged conduct without enlarging the elements the prosecution had to prove.
  • The Court of Criminal Appeal distinguished this case from Alomalu v R [2012] NSWCCA 255, where the evidence established only knowledge of Ashmore Reef as the destination but not knowledge of its status as Australian territory. Here, the evidence went further and directly established the appellant's knowledge that the ultimate destination was Australia.
  • Sufficient evidence existed for the jury to find beyond reasonable doubt that the appellant intended to facilitate the entry of the passengers into Australia, based on conversations, payments, and the appellant's own statements about the expected arrival of the Australian Navy.
  • In dismissing the appeal, the court confirmed that the trial judge's directions were adequate in the circumstances, as the evidence at trial did not raise a live issue about whether the appellant knew Ashmore Reef was part of Australia.

Legislation and Cases Referenced

Legislation:
- Migration Act 1958 (Cth), ss 233A, 233C, 236B
- Criminal Code Act 1995 (Cth), ss 4.1, 5.2, 5.6

Cases:
- Alomalu v R [2012] NSWCCA 255
- Sunada v R; Jaru v R [2012] NSWCCA 187
- PJ v The Queen [2012] VSCA 146; 268 FLR 99
- The Queen v Ahmad [2012] NTCCA 1; (2012) 256 FLR 423