Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Alomalu v R [2012] NSWCCA 255
• Hearing dates: 4 October 2012
• Decision date: 26 November 2012
• Before: McClellan CJ at CL at [1]; Rothman J at [83]; Adamson J at [84]

Decision

1. The appeal is allowed and the conviction is quashed.

2. Order the entry of a verdict of acquittal.

• Catchwords: CRIMINAL LAW - appeal - conviction - appellant convicted of aggravated people smuggling -whether trial judge erred in refusing to direct jury regarding evidence given by appellant on essential element of Crown case - where appellant and key prosecution witness gave conflicting accounts - whether principle in Robinson v The Queen [1991] HCA 38; (1991) 180 CLR 531 was breached - whether direction in Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 - principle in Robinson not breached - Liberato direction not required - appeal dismissed.; CRIMINAL LAW - appeal - whether verdict unreasonable and unsupported by evidence - where no evidence capable of showing appellant knew Ashmore Reef was part of Australia - where evidence gives rise to reasonable doubt that jury should have had - where jury advantage in seeing and hearing evidence not capable of resolving doubt - verdict unreasonable - appeal upheld.; CRIMINAL LAW - appeal - conviction - whether trial judge erred in not giving direction that accused intended to take passengers to Australia or that appellant knew Ashmore Reef was part of Australia - where central issue in trial not properly identified.
• Legislation Cited: Migration Act 1958 (Cth); Criminal Appeal Act 1912
• Cases Cited: Bahar v R [2011] WASCA 249; (2011) 214 A Crim R 417; Latham v R [2000] WASCA 57; Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507; PJ v R [2012] VSCA 146; R v Smith [2000] NSWCCA 468; Robinson v The Queen [1991] HCA 38; (1991) 180 CLR 531; Short v R [2000] NSWCCA 462; SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400; Sunada v R; Jaru v R [2012] NSWCCA 187
• Category: Principal judgment
• Parties: Sakarias Alomalu (Appellant); Crown
• Representation: Counsel: S Corish (Appellant); P Neil SC (Crown); Solicitors: Purcell Felton Lawyers (Appellant); Commonwealth Director of Public Prosecutions (Crown)
• File Number(s): 2011/137027

Decision under appeal

• Date of Decision: 2011-11-24 00:00:00
• Before: Taylor ADCJ
• File Number(s): 2011/137027

Judgment

1 McCLELLAN CJ at CL: The appellant, Sakarias Alomalu, was convicted on an indictment that alleged that he, along with Bimbi Yusuf Lahniya and Tarsan Bin Su Wita, had facilitated the bringing or coming to Australia of a group of five or more people who were non-citizens and who had no lawful right to come to Australia.

2 The offence is contrary to s 233C of the Migration Act 1958 (Cth). That section creates an offence of "aggravated people smuggling (at least 5 people)" and provides as follows:

"233C Aggravated offence of people smuggling (at least 5 people)

(1) A person (the first person) commits an offence if:

(a) the first person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of at least 5 persons (the other persons); and

(b) at least 5 of the other persons are noncitizens; and

(c) the persons referred to in paragraph (b) who are noncitizens had, or have, no lawful right to come to Australia.

(2) Absolute liability applies to paragraph (1)(b).

(3) If, on a trial for an offence against subsection (1), the trier of fact:

(a) is not satisfied that the defendant is guilty of that offence; and

(b) is satisfied beyond reasonable doubt that the defendant is guilty of the offence of people smuggling;

the trier of fact may find the defendant not guilty of an offence against subsection (1) but guilty of the offence of people smuggling, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt."

3 The appellant appeals against his conviction and seeks leave to appeal against his sentence. The two appeals have been listed for different days. This judgment relates only to the appeal against conviction.

4 There are three grounds of appeal.

Ground 1: The trial judge erred in law in refusing to direct the jury as regards the fact that the accused had given evidence as to an essential element of the offence.

Ground 2: The trial miscarried as the trial judge erred in failing to direct the jury it must be satisfied beyond reasonable doubt that:

(a) the accused intended that the 5 or more persons be brought to a destination, Pulau Pasir (Ashmore Reef) that was a part of Australia; and

(b) that the accused knew the destination was a part of Australia.

Ground 3: The verdict of guilty and conviction is unreasonable and cannot be supported having regard to the evidence.

5 The appellant, an Indonesian national, was one of three crewmembers aboard SIEV 198, a vessel that illegally entered Australian waters on 21 October 2010. The vessel was boarded by the Royal Australian Navy and 78 passengers were located on board. 77 of the passengers were nationals of Afghanistan and one passenger was a national of Iran. None had a valid visa to enter Australia.

6 The Crown alleged that the appellant had knowingly facilitated the bringing or coming to Australia of the passengers. The Crown relied upon the circumstances in which the SIEV 198 was intercepted near Ashmore Reef off the north west coast of Australia, the evidence of the co-accused Lahniya as to conversations in which the purpose of the boat journey was discussed and the evidence of some of the passengers as to the role of the appellant in the safe handling of the boat and the welfare of its passengers.

7 The appellant's case was that he did not know that he was coming to Australia. He gave evidence in which he denied any knowledge of the intended destination of the boat, said that he had never heard of Ashmore Reef and said that he had joined the boat expecting it to be used to transport a load of timber.

8 When the appellant was asked:

"Where did you think you were going?"

9 He replied:

"I didn't have any thoughts like that."

10 He was asked:

"Well what thoughts did you have?"

11 He said:

"I didn't, wasn't thinking outside, I was just thinking inside, inside the boat is what I was doing. I didn't have any other thoughts."

12 The evidence of the co-accused Lahniya was that in October 2010 he was in Kupang visiting his family when he was introduced by a friend of his, Anton, to a person who wanted to buy a boat. The name of this person was Safrudin, with whom Lahniya spoke. Safrudin said he was going to undertake a trip to Madura, a small island north of the city of Surabaya in East Java, to buy a boat. The plan was they would then load cargo of "essential needs" or timber at Surabaya. Safrudin paid for a flight Lahniya took from Kupang to Java. He travelled there with Safrudin and four other people whom he had not previously met, namely the appellant, the co-accused Su Wita, and two men known as Mustafa and Ua.

13 The plane from Kupang landed at the Surabaya Airport and the group then travelled directly to Madura by bus. Lahniya gave evidence that he found out most of the details of what he was to do from Ua: "Because Ua was the person who did everything for Safrudin."

14 A short time after the group arrived at Madura Safrudin told Lahniya that he had bought a boat and "At that time we carried out some minor repairs to part of the boat which was a bit damaged and after that we left for Surabaya". Lahniya gave evidence that it took approximately a week to repair the damage to the boat, during which time he lived on the boat along with Ua, Mustafa, Lahniya, Su Wita and the appellant. This group travelled on the boat from Madura to Surabaya, a journey that took about a day.

15 Midway between Madura and Surabaya the boat refuelled in a district called Bunkalan. At Bunkalan Safrudin was waiting and he travelled with the group from there to Surabaya. Lahniya understood that Ua was the captain of the boat. The boat did not stop at a port in Surabaya but anchored approximately 500 metres from the land.

16 Lahniya gave evidence that he asked why they were not going to tie up at the wharf and Ua said "Well, actually the plan is not to load on a cargo of essential needs but passengers." Lahniya asked who the passengers were and said that "He [Ua] said that these passengers came from the Middle East and were refugees and that these people would go towards Australia to seek asylum."

17 When asked if Ua said anything about what he would be doing in relation to these passengers Lahniya responded "Like I said earlier that those people were refugees, that their countries were in conflict, that they wanted to go to Australia to seek asylum. Secondly, he said that after you arrive in Australia of course you will go to jail but at most for a year."

18 Lahniya gave evidence about passengers getting onto the boat, the journey the boat took, his actions during the journey and of the boat being stopped off Ashmore Reef and boarded by the Royal Australian Navy. He said the other Indonesians on the boat when it departed from Surabaya were Ua, Mustafa, Su Wita and the appellant. He gave evidence that the boat made two stops and that Ua and Mustafa got off the boat at the second stop at the Island of Rote.

19 During cross-examination on behalf of the appellant, Lahniya was asked if "Indonesian people" were telling the appellant what to do on the boat. He replied:

"He was given the job of cooking and also to refuel if that needed to be done. And also to turn on the Eicon to basically to drop any water to pump out the water."

20 Lahniya went on to explain that the Eicon machine was a piece of pumping equipment. He agreed that the appellant never steered the boat, saying the appellant said he could not do so and he decided it was better for the appellant not to steer the boat. When it was again put to Lahniya that the appellant's job was not to steer the boat he replied:

"So on the boat I'd like to explain to you - especially when there were just the three of us coming from Rote to Ashmore, anything that could be done, we did. So if one was steering the other might help out, for example, to pump out the water from the boat. It depends what the situation was. So anything that could be done is what the people did. I want to say this because all the crew on the boat were component and had to do the work together."

21 Lahniya gave evidence that Ua "called" all of the crewmembers of SIEV 198 together to inform them that there had been a change of plan and that instead of essential items and timber the boat would be loaded with passengers that were to be taken to Ashmore Reef. He said that each of the members of the crew then negotiated with Ua separately about the remuneration that they would receive for the voyage.

Ground 3: The verdict of guilty and conviction is unreasonable and cannot be supported having regard to the evidence.

22 At the hearing, the applicant sought leave to amend the notice of appeal to add Grounds 2 and 3. The application was not opposed by the Crown. I would grant leave to amend the notice of appeal to add these grounds. It is convenient to deal with Ground 3 first.

23 Section 6(1) of the Criminal Appeal Act 1912 provides that a verdict may be set aside if it is unreasonable or cannot be supported having regard to the evidence. In SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 at [11] - [14] (French CJ, Gummow and Kiefel JJ) the High Court confirmed the test to be applied when considering an appeal in which it is submitted that the verdict was unreasonable:

"The task of the Court of Criminal Appeal

It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ:

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty".

This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" in M is to be taken as "equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'."

The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:

"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred."

Save as to the issue whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant's police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter.

In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M, Mason CJ, Deane, Dawson and Toohey JJ stated:

"In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'." (footnotes omitted)

24 The appellant submitted that the verdict of guilty is unreasonable and cannot be supported by the evidence because the Crown failed to prove beyond a reasonable doubt that the appellant knew that SIEV 198 was destined for Australia and, even if he knew that it was destined for Ashmore Reef, he did not know that Ashmore Reef was part of Australia.

The evidence at the trial

25 A number of witnesses who gave evidence at the trial gave an account of the interception by the Royal Australian Navy and Customs personnel of the SIEV 198 near the entrance to the outer lagoon at Ashmore Reef. They said that passengers told officials that they had been at sea for approximately 6 days.

26 They gave evidence that the boat had no fishing equipment on board. They said that there was a GPS in the wheelhouse that was removed before the boat was intercepted. Each of the passengers had paid money to another person to secure their passage on the boat.

27 There was evidence that at one point in the journey the passengers decided to collect their Indonesian money, for which they would have no further use, intending to give it to the crew. Mr Jafari, a passenger, said that it was collected and divided into three parts and given to the crew, which included the appellant.

28 There was evidence from another passenger, Mr Safi, that Lahniya was the driver of the boat. He identified the appellant as working on the boat, putting petrol in the engine and "cooking for themselves." There was evidence that the appellant had provided water for the passengers.

29 The appellant was found to have 3,243,000 Indonesian rupiah ($373 AUD) in his possession.

30 As I have already indicated, the appellant gave evidence in which he denied being told or otherwise knowing that the boat was going to Australia. Whether his evidence could be accepted or whether the Crown could prove beyond reasonable doubt that he knew that SIEV 198 was going to Australia is accordingly a critical issue. It does not seem to have been effectively isolated and explained to the jury at the trial. The Crown did not put its case on the basis that the appellant was the organiser of the journey but rather that he facilitated the "bringing or coming" to Australia of the relevant persons.

31 I have provided an account of Lahniya's evidence at [11] - [20] of this judgment. There are two occasions during his evidence when he gave an account of conversations in which Ua talked about the change of plan from carrying timber to carrying passengers. In the first section Lahniya described a conversation with Ua to the effect that the passengers were from the Middle East, were refugees and were going to Australia. The transcript of the evidence in relation to this conversation is as follows:

"Q. Was it day or night when the boat arrived in Surabaya?

A: Getting on to the afternoon. Getting on to the mid to late afternoon.

Q. When you arrived in Surabaya were you still expecting essential items and timber to be loaded onto the boat?

A: Yes.

Q. Did you at some stage speak to Ua or Safrudin about how you would load these goods on to the boat given that you were so far away from the shore?

A: Getting towards evening I asked why we weren't going to tie up at the wharf and he said, well, actually the plan is not to load on a cargo of essential needs but passengers.

Q: Was if Safrudin or Ua who told you that?

A: Ua.

Q: Did you ask Ua who the passengers were?

A: Yes.

Q: What did he tell you?

A: Like I said earlier that those people were refugees that their countries were in conflict that they wanted to go to Australia to seek asylum. Secondly he said that after you arrive in Australia of course you will go to jail but at most for a year."

32 There is no suggestion in this account that the appellant was a party to this conversation. Later in his evidence Lahniya gave an account of a conversation with Ua, in which it is apparent that the appellant and the third co accused, Su Wita, participated. Lahniya indicated that all three crewmembers, including the appellant were "called" by Ua and informed that "the job had changed" and that the boat would be taking passengers to "Ashmore Island". The transcript of that evidence is as follows:

"Q. So when you arrived in Surabaya and then in Madura did you then become more familiar?

A: Yes.

Q. You spoke a little bit more at that stage, did you?

A: Yes.

Q: Were you told by Mr Su Wita and Mr Alomalu what they understood the job to involve?

A: You mean their responsibilities on the boat?

Q: I'll take it step-by-step Did you speak to Mr Su Wita about what the job was when you were in Madura?

A: No. Actually it was not me talking about it, it was Ua, because he was the one who was in charge at the time.

Q. Did you see Ua speak to Mr Alomalu about the job?

A: Yes.

Q. As I understand your evidence, at some point before the boat was to leave Surabaya, you were then told by Ua that the job had changed and that instead of cargo it was in fact passengers that you would be taking to Ashmore Island?

A. Yes.

Q. Did you tell Mr Su Wita and Mr Alomalu about the change?

(Objection).

Q: Did you tell Mr Su Wita about the change?

A: Actually, it all came from Ua. Because he called us all to tell us about the change. So because it was about also matters of payment for the trip and the rights to determine this. So about the payment we did not know what each other was being paid.

Q: So you were told about the change in plan together, as in yourself, Mr Su Wita and Mr Alomalu?

A. Yes.

Q. But the negotiations about the payment then occurred separately?

A. Yes, separately."

33 The appellant submitted that Lahniya's evidence should be understood as relating to two separate conversations. If this was not accepted it was submitted that at the very least it could not be concluded with any degree of certainty that Lahniya was referring to the one conversation. The appellant submitted that this was the case for the following reasons:

(1) In Bahasa Indonesia tense is established by creating context.

(2) The conversation regarding 'asylum seekers' with Ua was, according to Lahniya, locked to a time frame just before the passengers boarded.

(3) The conversation regarding the 'change of plan' was linked contextually to 'when you arrived...in Madura'.

(4) The use of the phrase 'at some point before the boat was to leave Surabaya' is unclear as to the time frame and in no way linked to the conversation between Lahniya and Ua about asylum seekers.

34 As a result, it was submitted that there was no evidence upon which a jury could conclude beyond reasonable doubt that the appellant knew that boat was to travel to Australia. While Lahniya's evidence established that the appellant was aware that the boat was to travel to Ashmore Reef (or Pilau Pasir in Bahasa Indonesia), there was no evidence from which it could be inferred that the appellant was aware that Ashmore Reef was a part of Australia.

35 At the hearing of this appeal, counsel for the Crown made the following concession:

"I have to concede I think in fairness rather than take time, there is no evidence that the appellant was told or otherwise had knowledge that Ashmore Island was part of Australia. That is as high as I can put it."

36 Notwithstanding that concession, the Crown submitted that upon examination of the whole of the evidence this Court would be satisfied that the two parts of Lahniya's evidence related to the one conversation.

37 In my opinion that submission should be rejected. Lahniya's evidence supported a conclusion that Ua called all of the crew members to inform them about a change of plan to go to Ashmore Reef and that this occurred at "some point before the boat was to leave Surabaya". However he said that each crewmember engaged in separate negotiations with Ua in relation to the remuneration that they were to receive for the trip. This is different to the first discussion between Lahniya and Ua, which Lahniya said took place on the evening of the boat's arrival in Surabaya and was initiated by Lahniya questioning Ua about why they were not tying the boat up at the wharf in Surabaya. Accordingly, the most that can be established from the evidence is that the appellant was told that the passengers would be taken to Ashmore Reef. As was conceded by the Crown, there is no evidence to establish that the appellant knew that Ashmore Reef was a part of Australia.

38 In the last decade the arrival to Australia of asylum seekers via boat from Indonesia is an issue that has received considerable focus in the Australian media. As a result, many Australians would be aware of the location of Ashmore Reef, know that it is part of Australia and be conscious of its significance as a port of entry for asylum seekers. Many Australians would readily infer that a boat that departs from a port in Indonesia with 78 passengers from Middle Eastern nations and charts a course in a southerly direction is likely to have a final destination of Australia. However, it is a different matter for a poor, itinerate worker from Indonesia. Knowledge that an Australian would have cannot be attributed without evidence to an Indonesian. The inevitable outcome is that I have a doubt about whether the appellant knew that he was facilitating the bringing of persons to Australia and that is a doubt that the jury should have had. The issue is not capable of being resolved adversely to the appellant by any advantage which the jury may have had. It follows that the verdict is unreasonable and cannot be supported by the evidence.

39 I would uphold Ground 3 of the appeal. The appellant's conviction should be quashed and a verdict of acquittal entered.

Ground 1: The trial judge erred in law in refusing to direct the jury as regards the fact that the accused had given evidence as to an essential element of the offence.

40 The appellant submitted that the trial judge erred in failing to give a direction that the appellant had given exculpatory evidence relevant to a crucial element of the offence.

41 The issue went to evidence given by the appellant as to his lack of knowledge that the boat was destined for Australia. There was conflict in the evidence as between the appellant and the co-accused Lahniya.

42 Counsel for the appellant in his closing address stated to the jury that the Crown had to prove beyond reasonable doubt that the appellant knew that he was coming to Australia and further that the Crown had to exclude as a reasonable possibility that what the appellant said in evidence was true.

43 The trial judge in his summing up discussed the fact that the appellant and his co-accused had given evidence. His Honour said:

"Now, as to the accused persons who gave evidence, they become witnesses in the trial like any other witness, and you evaluate their evidence in accordance with the principles and policies I have already explained to you. It is up t o you as to whether or not you feel you can safely rely upon what they told you."

44 At the close of the trial judge's summing up and after an inquiry by the trial judge as to whether any further directions were required, counsel for the appellant applied for a direction directed to the proposition that that the appellant had given exculpatory evidence relevant to a critical element in the Crown Case. The Criminal Trial Courts Bench Book contains a direction that will often be appropriate in these circumstances, at [3-620]:

"The accused has given [and/or called] evidence in support of the accused's case to the following effect...[summarise the evidence for the accused].

If, having considered that evidence, and the submissions of both counsel in relation to it, you accept it, then of course you must acquit the accused and bring in a verdict of "not guilty", because it would follow that the Crown has not established beyond reasonable doubt its case in relation to an essential matter which it must prove.

If after having given consideration to the evidence of the accused [and/or evidence on the accused's behalf] and any evidence which the Crown asks you to take into consideration, you do not positively accept the evidence of [identify the relevant evidence] in support of the accused's case, but that evidence leaves you nevertheless with a reasonable doubt as to whether the Crown has made out its case in respect of any essential matter which it must prove, then you are bound, in law, to bring in a verdict of "not guilty". In other words, it is not the position that you have to believe the accused [and/or his/her witnesses] [is/are] telling the truth before the accused is entitled to be acquitted. As I have previously emphasised to you throughout the whole of this case, it remains the position that the Crown must establish beyond reasonable doubt the charge which it brings against the accused, and it is never for the accused to prove that her or she is not guilty."

45 The trial judge rejected the application. The appellant submitted that the trial judge had erred and that the fairness of the trial was impaired as a consequence. The outcome of the trial inevitably turned upon the knowledge of the appellant, which required the jury to assess his evidence. The appellant submitted that the jury were left with a direction inviting them to assess the evidence of the appellant and the co-accused as they would the evidence of any other witness and more importantly confining their task to assessing whether they could safely rely upon what the appellant or the co-accused said in evidence.

46 The appellant submitted that as a consequence the directions tended to invert the onus of proof and/or were suggestive that the evidence of the appellant at trial ought to have been scrutinised more carefully than that of any other witness in breach of the principle set out in Robinson v The Queen [1991] HCA 38; (1991) 180 CLR 531 (Mason CJ, Brennan, Deane, Toohey and McHugh JJ). The appellant submitted that the proper direction was that requested by the appellant, which followed the extract from the Criminal Trial Courts Bench Book.

47 In response the Crown submitted that the suggested direction was not mandatory and not required in the circumstances of the appellant's case. The Crown sought to distinguish the appellant's case from Robinson where the accused was charged with sexual assault. The critical issue in that case was whether the Crown had proved that the complainant's consent to having sexual intercourse with the accused, which was admitted, had been obtained by force and her fear of further bodily harm. In this context, the trial judge said to the jury that:

"You might this - it is a matter solely for you - that the accused had the greatest interest of all the witnesses you saw and heard and that, therefore, you should scrutinize his evidence closely."

48 The High Court concluded (at 536) that the trial judge's directions had the effect that the accused was to be treated as a "suspect witness" whose evidence should only be accepted after the most careful scrutiny. This direction was said to "undermine the benefit which [the presumption of innocence] gives an accused".

49 The Crown submitted that in the applicant's case there was no suggestion or implication by the trial judge that the appellant's evidence required close scrutiny, nor was there any reference to the interest the witness had in the outcome of the case as a test of his credibility.

50 The Crown submitted that his Honour's directions to the jury in relation to the onus of proof were sufficient to guard against an error of the kind demonstrated in Robinson. In respect of that matter is Honour said:

"The onus rests upon the Crown in respect of every element of the charges. There is no onus of proof on the accused at all. It is not for any of the accused to prove his innocence, but for the Crown to prove the quilt of each and to prove it beyond a reasonable doubt. It is, and always has been, a critical part of our system of justice that persons tried in this court are presumed to be innocent unless and until they are proved guilty beyond a reasonable doubt. That is, of course, the presumption of innocence."

51 The appellant submitted that there were further problems with his Honour's summing up. It was submitted that the uncertainty regarding the conversations to which the appellant was said to be party (discussed in relation to Ground 3) highlighted the need for the trial judge to carefully direct the jury as to how it should approach the evidence of the appellant. It was submitted that the fact that the prosecutor relied upon the evidence of Lahniya called for a direction of the type suggested by Brennan J (Deane J agreeing) in Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 at 515:

"The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond a reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue."

52 The appellant submitted that the jury were given a choice between choosing the evidence of the appellant and Lahniya. In summarising the Crown case against the appellant the trial judge said:

"The major point to draw to your attention in the Crown case in her address is that she said you should focus on the evidence of Mr Lahniya on the conversation at the meeting in Surabaya, the summary of that being that the three men were all told of the purpose of the journey and so forth, and each was left to negotiate remuneration separately."

53 In relation to this matter the appellant submitted that his Honour, in effect, endorsed the analysis of the Crown in relation to the conversation to which the appellant was a party. His Honour directed the jury that:

"The Crown does not have to prove that the group actually arrived in Australia, only the bringing (or coming) of the group to Australia. An accused intended to do something if he meant to do it. Now you have heard that phrase used by counsel in their submissions to you correctly. In this case, the accused meant to do it if the accused knew he was helping to take people to Australia."

54 His Honour then later said in reference to the Crown prosecutor's address:

"[She] referred to the evidence of, you will remember about the conversation that the Crown says took place with Mr Ua off Surabaya, and the understanding that, and it was quoted, 'Of course you'll go to gaol.' That is evidence that when he subsequently did things, he meant to do them."

55 The Crown submitted that a direction of the kind referred to in Liberato is only required where a case is left on the "very blunt" basis that a jury is invited to considered which of the prosecution witness or the defence witness they believe. Whether or not a case has been left in such blunt terms will depend upon a reading of the summing up as a whole: R v Smith [2000] NSWCCA 468 at [44] and [52] (Wood CJ at CL, Giles JA and James J agreeing).

56 The Crown also referred to the case of Short v R [2000] NSWCCA 462, in which Beazley JA (Grove and Kirby JJ agreeing) said at [69], in a case where conflict of evidence arose because of the appellant's retraction of a confession made in a first record of interview:

"When there is such a conflict, the principle which operates is fundamental, reflecting the basic tenet of a criminal trial, namely, that at all times the jury's task is to determine whether the Crown has satisfied them beyond a reasonable doubt of the guilt of the accused of the offence charged. It is necessary to ensure that the directions given to the jury reflect that fundamental tenet."

57 Beazley JA at [77] referred with approval to the reasons of Malcolm CJ (Pidgeon and White JJ agreeing) in Latham v R [2000] WASCA 57, drawing attention to the importance of there being "a specific direction to the jury to the effect that even if they positively disbelieved the accused they could still not convict him unless the Crown had satisfied them of the appellant's guilt beyond a reasonable doubt" and that a failure to do so constituted appealable error. At [78] -[82] her Honour found that the trial judge in Short had given directions that met the requisite test.

58 In his charge to the jury the trial judge gave comprehensive directions about the onus and burden of proof placed on the Crown. His Honour also gave the following direction:

"Now it is not up to the accused to prove anything, the Crown has to prove the case beyond a reasonable doubt, but it is a reality that this aspect of the case [whether the accused knew or believed that the boat was going to Australia] was the one upon which [defence] counsel concentrated."

59 The Crown submitted that these directions were sufficient in the circumstances and adequately addressed any issue arising from the possible difference between the evidence of Lahniya, and the appellant as to whether the appellant was present when Ua informed Lahniya that the passengers were refugees who wanted to go to Australia.

Resolution of Ground 1

60 The appellant relies on two decision of the High Court. The directions given by the trial judge in the present case were not in a form that could give rise to the problem identified in Robinson. There was no suggestion by his Honour that the appellant's evidence should be assessed in a manner different to the evidence of other witnesses. Furthermore, as submitted by the Crown, his Honour's direction reinforced for the jury that the appellant was entitled to the presumption of innocence.

61 The second decision relied upon by the appellant is Liberato. In that case only two of the judges of the High Court dealt with the issue raised in the appeal, the majority deciding that special leave should be refused. The essence of Brennan J's judgment was to emphasise the importance of ensuring that, in an appropriate case, even if the jury do not accept the evidence of an accused they should nevertheless consider whether it would cause them to have a reasonable doubt about the prosecution case.

62 I am not persuaded that the passages in the summing-up to which the appellant drew attention gave rise to the problem identified by Brennan J. All that his Honour did, as he was required to do, was remind the jury of the prosecutor's submission. This must inevitably lead to his Honour, at that point of the summing-up, emphasising the aspects of the evidence on which the prosecution relied.

63 The task for the jury in this case, as it is in every case, was to determine whether the prosecution had proved the case against the appellant. In the course of his summing-up to the jury the trial judge gave the jury the familiar direction as to the assessment they should make of the evidence of each witness. His Honour told the jury that they were required to decide whether a witness was telling the truth but that they were not obliged to accept or reject the whole of the evidence of any one witness.

64 His Honour also said to the jury:

"Let me say something now about the onus of proof. This, as you have already been told more than once, is a criminal trial of a most serious nature, and the burden of proof of guilt is placed on the Crown. That onus rests upon the Crown in respect of every element of the charges. There is no onus of proof on the accused at all. It is not for any of the accused to prove his innocence, but for the Crown to prove the guilt of each and to prove it beyond reasonable doubt.

It is, and always has been, a critical part of our system of justice that persons tried in this court are presumed to be innocent unless and until they are proved guilty beyond reasonable doubt. This is, of course, the presumption of innocence.

I give this important direction now. The expression, 'beyond reasonable doubt', is an ancient one. It is deeply ingrained in the criminal law of the State for almost 200 years and it needs no explanation from trial judges. The Crown does not have to prove, however, every single fact in the case beyond reasonable doubt. The onus that rests upon the Crown is to prove the elements of the charges beyond reasonable doubt; the Crown Prosecutor has correctly outlined those to you and I shall subsequently outline the elements as I said to you at the commencement of the trial.

In a criminal trial there is only one ultimate issue. Has the Crown proved the guilt of an accused person beyond reasonable doubt? If the answer in respect of any of the accused persons is yes, the appropriate verdict is guilty. If the answer in respect of any of the accused persons is no, the verdict must be not guilty."

65 Later, in the summing up his Honour again reminded the jury that the accused does not have to prove anything rather the Crown has to prove the case beyond reasonable doubt. His Honour said:

"In the context of a criminal trial, there are some very important words that I am going to give to you now. Where proof is required beyond reasonable doubt, you should not draw any inference from the direct evidence unless it is the only rational inference in the circumstances.

In the present case, the Crown has asked you to draw inferences that the accused meant to facilitate, meant to help people come to Australia, and the case in that sense very much depends on the circumstances, not completely, but depends on the circumstances, and you are asked to draw inferences. And you have to be satisfied that, when you consider the evidence, the only rational inference that can be drawn.

I trust that does not sound a little ponderous. Do not be frightened to do that. It is something, again, we do all the time. But what you do is, you look at the direct evidence, you satisfy yourself about its existence, you draw the inference, and then you say, was it a justifiable inference, was it the only rational explanation for the conduct?

Having said that to you now, when I come to the arguments of counsel, very much the three counsel asked you to be careful in following that process, and you will remember that that is essentially what they argued, that you could not draw from the circumstances conclusions to satisfy you beyond reasonable doubt as to the mental element, the mental state, I think was the word used by one of the counsel.

...

Now, as to the accused persons who gave evidence, they become witnesses in the trial like any other witness, and you evaluate their evidence in accordance with the principles and policies I have already explained to you. It is up to you as to whether or not you feel you can safely rely upon what they told you."

66 When dealing specifically with the case against the appellant the trial judge had this to say:

"So far as Mr Alomalu's case is concerned, the Crown Prosecutor acknowledged that the evidence was that he had never heard of Australia, and because he was at the meeting that you are asked to find took place, and what was said, that he knew the boat was coming to Australia.

The Crown Prosecutor repeated that you would need to accept Mr Lahniya's evidence in this regard, and phrases would indicate that they were each a component of a crew, and she said to you the evidence is overwhelming that each of the accused was intending to facilitate the coming to Australia of the refugees."

67 From these passages in the summing up it is apparent that the trial judge carefully told the jury that the Crown must prove its case beyond reasonable doubt. His Honour reminded the jury of the appellant's evidence that he had never heard of Australia, contrasting this with the evidence of Lahniya. Significantly his Honour reminded the jury, as the Crown Prosecutor had done, that the jury would "need to accept" Lahniya's evidence before they could convict the appellant.

68 In these circumstances I am not persuaded that the miscarriage contended for by the appellant occurred. I accept that his Honour could have given the direction suggested in the Bench Book, which would have removed any doubt about these matters. However, having regard to the directions that his Honour gave, the Bench Book direction was not essential.

Ground 2: The trial miscarried as the trial judge erred in failing to direct the jury it must be satisfied beyond reasonable doubt that:

(a) the accused intended that the 5 or more persons be brought to a destination, Pulau Pasir (Ashmore Reef) that was a part of Australia; and

(b) that the accused knew the destination was a part of Australia.

69 This ground of appeal was pleaded following the decision of this Court in Sunada v R; Jaru v R [2012] NSWCCA 187 which followed PJ v R [2012] VSCA 146.

70 In the course of his summing-up the trial judge addressed the mental element of the charge. His Honour said:

"The Crown does not have to prove that the group actually arrived in Australia, only the bringing (or coming) of the group to Australia. An accused intended to do something if he meant to do it. Now you have heard that phrase used by the counsel in their submissions to you correctly. In this case, the accused meant to do it if the accused knew he was helping to take people to Australia. "

71 The appellant submitted that this direction was erroneous.

72 In Sunada v R; Jaru v R this Court (Macfarlan JA, Price, McCallum JJ) said at [5]:

"In their grounds of appeal against conviction filed on 3 May 2012, the appellants contended that the trial judge's direction was erroneous. On 29 June 2012 the Victorian Supreme Court delivered judgment in PJ v R [2012] VSCA 146, holding that proof of an offence under s 233C of the Migration Act requires proof that the accused intended that relevant persons be brought to a destination that was a part of Australia and that the accused knew was a part of Australia ([5] and [44])."

73 In P J v R the Victorian Supreme Court of Appeal (Maxwell P, Redlich and Hansen JJA) said at [5]:

"For reasons which follow, we would grant leave to appeal and allow the appeal. For the applicant to be found guilty of the offence under s 233C, he must be shown to have intended that the relevant persons be brought to Australia. That is, he must have been aware that Australia was the intended destination."

74 And later at [44]:

"Unsurprisingly, this definition of 'no lawful right to come to Australia' is concerned with - and only with - rights of entry into Australia. It follows, in our view, that by requiring proof of the defendant's recklessness as to the absence of that lawful right, Parliament intended to require proof that the accused was 'aware of a substantial risk' that none of the relevant persons had a lawful right to come to Australia. That is, the defendant must have turned his mind to the existence of that risk, in relation to that particular country, and decided, unjustifiably, to take the risk. On this view, the word 'Australia' when used in paragraph (c) does not mean 'the intended destination of the voyage, provided that it is in fact part of Australia'. It means a place known to the accused as Australia."

75 His Honour did not have the benefit of these recent appellate decisions.

76 The appellant submitted that in light of these decisions the Crown was able to prove its case against the appellant in either of two ways. First, by proving that the appellant knew that the destination of the boat was Ashmore Reef and that he intended, by his acts in facilitating the journey to the Reef, to facilitate the 'bringing' of the passengers to the ultimate destination, Australia. Alternatively, it was submitted that the Crown may have proved its case by satisfying the jury that the appellant knew the destination was Ashmore Reef and that he also knew that Ashmore Reef was part of Australia.

77 The appellant submitted that as a consequence the jury should have been given the following instructions in addition to the direction given by His Honour:

(a) If it can be shown that the appellant knew that Ashmore Reef was part of Australia, that would be (very) relevant to proving the appellant intended to 'facilitate the bringing or coming to Australia of a group of 5 or more persons'.

(b) That proof the accused helped bring the passengers to Ashmore Reef is insufficient without proof that he intend to assist their travel to Australia.

(c) The appellant's intention or state of mind can be proved by inference and knowledge or lack of knowledge that Ashmore Reef is part of Australia may be relevant.

(d) The jury should have been cautioned not to reason that just because he crewed the boat to Ashmore Reef, he must have acted intentionally as it must be proved that he did so intending to assist their travel to Australia.

(e) In order to have such an intention, the appellant must have been aware of the purpose of the voyage: Bahar v R [2011] WASCA 249; (2011) 214 A Crim R 417 at [24].

78 Insofar as these additional directions relate to the first method of proving the Crown case, the appellant submitted his Honour should have reminded the jury of the appellant's evidence, the conflict between the appellant's evidence and the evidence of Lahniya, the uncertainty of the evidence of Lahniya regarding the conversation or conversations and that, even if they do not positively believe the evidence of the appellant, they cannot be satisfied if that evidence gives rise to a reasonable doubt as to that issue.

79 In relation to the second method of proving the Crown case, it was submitted that his Honour should have directed the jury that, additionally, they must be satisfied that the appellant knew that Ashmore Reef was part of Australia.

80 For these reasons, the appellant submitted that the trial miscarried.

81 The impugned direction had at least two elements. In the first element the trial judge told the jury that the Crown does not have to prove that the passengers actually arrived in Australia. No complaint is or could be made about this direction. The second element related to the intention of the accused persons, including that of the appellant. The jury were told that the relevant intention would be proved "if the accused knew he was helping to take people to Australia."

82 To my mind his Honour's direction was not sufficient to effectively isolate the issue that the jury had to determine. It is the source of the problem identified in Ground 3. Although it was correct to instruct the jury that they must be satisfied that the appellant knew that he was helping to take people to Australia, the issue in this case was whether, although he knew the boat was going to Ashmore Reef, he knew that Ashmore Reef was a part of Australia. The emphasis in both Sunada and PJ was on the accused knowing that the intended destination of the voyage was a place known to the accused as Australia. His Honour's direction did not achieve that objective. If I was not of the opinion that the appeal should otherwise be upheld I would have granted leave under Rule 4 and allowed this ground of appeal.

Orders

1. The appeal is allowed and the conviction is quashed.

2. Order the entry of a verdict of acquittal.

83 ROTHMAN J: I agree with McClellan CJ at CL.

84 ADAMSON J: I agree with McClellan CJ at CL.

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Decision last updated: 23 January 2013