The Queen v Ahmad

[2012] NTCCA 1

CRIMINAL LAW – people smuggling – elements of the offence — whether necessary to prove non-citizens entered Australia – whether s14 of the Criminal Code (Cth) applies – whether offence against s232A of the Migration Act can take place outside Australia – Migration Act 1958 (Cth) s 232A, s 228A, s42(1)

STATUTORY INTERPRETATION – Whether necessary to prove non-citizens entered Australia – whether s14 of the Criminal Code (Cth) applies – whether offence against s232A of theMigration Act can take place outside Australia – Migration Act 1958 (Cth) s232A, s228A, s42(1)

Hearing Date: 1 November 2011

Delivered: 18 January 2012

Judgment of: Mildren, Southwood and Martin JJ

[46] Not only does the ordinary meaning of the words in s 232A of the Migration Act 1958 (Cth) produce this result, but the very nature of the offence created supports the view that it is not necessary for the prohibited persons to have travelled to Australia before the offence is committed. Section 232A of the Act is aimed at those persons who organise or facilitate the bringing to Australia or coming to Australia of a group of five or more non citizens who do not hold current visas. No doubt a successful entry of the prohibited persons into Australia would be an aggravating circumstance accompanying the crime, but successful entry is not an element of the crime. Once the organisation or facilitation has occurred, the physical element of the crime is completed, regardless of whether the travel to Australia is undertaken or, if undertaken, is successful or unsuccessful.

[47] The elements of the offence in the respondent’s case are:

1. Between 1 May 2010 and 11 May 2010, the accused facilitated the bringing to Australia of a group of five or more people (“the passengers on the sea SIEV 146”).
2. The accused meant to facilitate the bringing of the passengers of the SIEV 146 to Australia.
3. At least five of the passengers on the SIEV 146 were people to whom s 42(1) of the Migration Act 1958 (Cth) applies. That is, the passengers were not Australian citizens; and at the relevant time they did not have valid visas permitting them to enter Australia.
4. The accused was reckless as to whether the passengers on the SIEV 146 had a lawful right to come to Australia.

[48] Such a construction is consistent with the principles of criminal responsibility provided for in Chapter 2 of the Criminal Code (Cth) which are applicable to offences under the Migration Act 1958 (Cth)[8]. Each offence must consist of physical elements and corresponding fault elements[9] and the elements of the offence must exist contemporaneously[10]. Section 232A of the Act does not state that there is no fault element for any physical element of the offence.