The Queen v Mahendra [2011] NTSC 57


PARTIES:                                         THE QUEEN










FILE NO:                                          21036001


DELIVERED:                                   29 July 2011


HEARING DATES:                           11 July 2011, 13 – 20 July 2011


JUDGMENT OF:                              BLOKLAND J




CRIMINAL LAW – Statutory Interpretation – whether the phrase ‘facilitates bringing to Australia’ attributes culpability for incomplete journeys – An incomplete journey can form the basis of the physical element of the offence


Duress – whether defence of duress was available on the evidence – accused need only satisfy the evidential burden – evidence that suggests a reasonable possibility that the matter exists or not – No evidence of threat prior to voyage commencing – No evidence accused could point to of duress


Migration Act (CW) s 233C, s 228A, s 236B, s 233(1), s 4,

Acts Interpretation Act (CW) s 15AA

Criminal Code Act (CW) s 5.6(1), s 5.6(2), s 10.2, s 13.3(b), s 10.2.3


Rutu v Ladjiluv Dalla Costa (1997) 93 A Crim R 425; applied


R v Saengsai-Or (2004) 61 NSW LR 135; followed


Reg v Singh (1972) WLR 1066; Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193; discussed


Odgers – Principles of Federal Criminal Law – Second Edition





    Prosecution:                                 Mr Chris Beale

    Accused:                                       Mr Simon Lee



    Prosecution:                                 Office of the Director of Public Prosecutions

    Accused:                                       N/A


Judgment category classification:    B

Judgment ID Number:                       BLO 1108

Number of pages:                             17






The Queen v Mahendra [2011] NTSC 57

No. 21036001





                                                     THE QUEEN












(Delivered 29 July 2011)



[1]       An issue arose during the course of this trial on the construction of the offence known as “aggravated people smuggling”, charged under s 233C Migration Act (CW).  The question was whether the phrase “facilitates the bringing to Australia” attributes culpability for incomplete journeys – in this case the non-citizens and the accused were intercepted prior to reaching Australia.  Australian authorities completed the journey by bringing the non-citizens into Australia.  At trial I ruled in favour of the construction advanced on behalf of the Crown allowing an uncompleted journey to form the basis of the physical element of the offence.  I indicated I would give further brief reasons in addition to those discussed during the trial.  These are the reasons.

Outline of the Crown Case

[2]       A number of significant facts were not contested.  The accused, Mr Mahendra, with a Mr Suwandi, (who has already pleaded guilty and has been sentenced for the same offence) were fishermen living and working in Lombok, Indonesia.  Mr Suwandi was the principal witness called on behalf of the Crown.  In late May 2010 both Mr Mahendra and Mr Suwandi were working on a fishing boat and were approached by two persons who were strangers to them at that time.  Those persons were Mohammed Abdullah and Wan Chu. 

[3]       Abdullah and Wan Chu asked them to take some people to Australia by a boat that would be provided to them.  There was some challenge to precisely what part of these conversations Mr Mahendra heard.  These conversations took place in Lombok and his level of engagement with them was relevant for the purpose of proof of intention or other relevant mental state, however the physical acts he engaged in at that time were not challenged.  Both men were alleged to have expressed concern about the possibility of imprisonment in Australia.  It seems they were advised that it was likely they would be deported on reaching Australia and either they would not go to gaol or would not go to gaol for a significant period as they had not previously travelled to Australia.

[4]       The boat was known to Mr Suwandi as the KDM.  In these proceedings it has been referred to interchangedly as the KDM or SIEV157 (Suspected Illegal Entry Vessel).  Both Mr Suwandi and Mr Mahendra were offered five million Indonesian Rupiah to take the persons to Australia.  Each were given 500,000 Indonesian Rupiah with an agreement the balance would be paid once the passengers arrived in Australia.  Both assisted in brief preparations for the KDM to sail while it was still in Lombok.  Another person mentioned in the evidence of Mr Suwandi, “Ridwan” was on the boat initially as “Captain” but left the boat as it was departing Lombok, leaving Mr Mahendra and Mr Suwandi as crew.  The passengers were collected at an agreed departure point in Lombok, under cover of night.  They were brought to the KDM in small boats.  Mr Mahendra admitted to being a crew member, taking it in turns with Mr Suwandi at steering the boat during the journey from Indonesia.

[5]       It was formally admitted that on 7 June 2010 there were 36 passengers on board SIEV157; none were Australian citizens and none had a lawful right to enter Australia.

[6]       The SIEV157 was intercepted in the waters between Indonesia and Australia.  On 7 June 2010, (a few days after the journey from Indonesia commenced), SIEV157 was spotted by an Australian surveillance plane.  On 8 June 2010 it was intercepted by the Customs boat, the Oceanic Viking.  Initially conditions were not safe enough to transfer passengers from SIEV157 onto the Oceanic Viking.  The SIEV157 was instructed to follow the Oceanic Viking to calmer waters.  Initially it did so, however it stopped, apparently due to cut fuel lines.  A decision was made to transfer all passengers, Mr Suwandi and the accused to the Oceanic Viking.  This was done even though conditions were not ideal for the transfer.  The transfer took place before any passengers arrived in Australian waters.  It was Australian authorities through Customs who physically brought the passengers to Australia, completing the last part of the voyage.  Eventually the passengers were taken to Christmas Island. 

[7]       In those circumstances, it was argued the accused could not be said to have facilitated bringing the persons to Australia.  Both a proposed plea challenging jurisdiction and an argument couched in terms of excluding evidence obtained from the boarding as being against public policy were abandoned at the commencement of the trial.  Some of the considerations relevant to those abandoned arguments resurfaced on the question of the construction of an offence against s 233C Migration Act (CW).

Section 233C Migration Act (CW)

[8]       Section 233C Migration Act (CW) provides:

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 non-citizens; and

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

Penalty: Imprisonment for 20 years or 2,000 penalty units, or both.

Note:    Sections 236A and 236B limit conviction and sentencing options for offences against this section.

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

Note:    For absolute liability, see section 6.2 of the Criminal Code.

(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.

[9]       Given the significant penalties against s 233C Migration Act (CW), it is important the section be construed strictly.  The theoretical maximum penalty is imprisonment for 20 years.  Importantly, the mandatory minimum in the case of this accused is 5 years imprisonment with a mandatory minimum non parole period of at least 3 years.[1]  If liberty is at stake, noting here the principle is somewhat magnified where there is no room for mitigation of penalty, strict interpretation is required.  As was stated in Stevens v Kabushiki Kaisha Sony Computer Entertainment[2] “an appreciation of the heavy hand that might be brought down by the criminal law suggests the need for caution in accepting any loose, albeit “practical” construction…”  Further, it is accepted a statute should not be extended to cover a particular situation where it is thought there is legislative omission.  Ambiguities in such legislation ought to be resolved in favour of the liberty of the accused. 

[10]     While deferring to those fundamental principles, there is no reason to depart from the express words in this provision.  In my view the choice of words “facilitates the bringing … to Australia” is not ambiguous.  It was conceded on behalf of the accused that this part of the Migration Act applies extra-territorially.  Section 228A Migration Act (CW) provides “This subdivision applies in and outside Australia”.[3] 

[11]     The current indictment applied only to facilitating the bringing of persons to Australia in so far as it took place within the waters between Indonesia and Australia.  I do not here need to consider whether the preparatory acts alleged to have occurred wholly within the territory of Indonesia could by themselves be subject to this charge, however those acts are not alleged to comprise any part of the impugned conduct.  Those acts were relevant in as much as they shed light on the mental state of the accused.  There does not appear to be any reason why conduct amounting to “facilitates” that takes place within the waters between Indonesia and Australia would not be covered by s 233C Migration Act (CW).  There is no challenge to legislative competence in relation to the extra territorial application of this part of the Migration Act (CW).

[12]     It is important to note the accused is not charged with facilitating the “entry” or “proposed entry” into Australia, but rather “the bringing to” Australia of the non-citizens.  In my view a plain reading of the section clearly contemplates facilitation that falls short of entry, or indeed “arrival” at Australia.  Both “entry” and “proposed entry” are separately provided for.  To suggest the phrase “the bringing to Australia” inculpates only bringing people close to an Australian border or adjacent to Australia yet falling short of entering or purporting to enter Australia fails to appreciate the meaning of the section as a whole.  Such an interpretation would effectively render the whole phrase “bringing to Australia” meaningless.

[13]     The Crown referred me to Rutu v Ladjiluv Dalla Costa[4] dealing with the previous and largely analogous s 233(1) Migration Act (CW) offence of prohibiting the bringing or coming to Australia of a non-citizen.  Although distinguishable on the facts, in dealing with an extra territorial argument Angel J was of the view that a non-citizen need not actually reach Australia for the offence under the then s 233 Migration Act (CW) to have been completed.[5] 

[14]     The phrase “the bringing to Australia” in s 233C contemplates persons are in a process of being brought (to Australia) from elsewhere.  The ordinary sense of the preposition “to” generally incorporates motion or direction towards something.  Alternatively, it may be seen to be limiting in the sense of “to” meaning “up unto”.  Either way of viewing the phrase lends weight to the interpretation advanced on behalf of the Crown.  Facilitating the “bringing to” Australia in my view has a markedly different sense from “arrival” in Australia or “arrival” at an Australian border. 

[15]     It was argued an interpretation consistent with s 15AA Acts Interpretation Act (CW) would favour the interpretation contended on behalf of the accused.  Section 15AA provides the Court should prefer a construction that would promote the purpose or object underlying the Act rather than one that would not promote the purpose or object.  It was argued that since the object of the Act is expressly stated to regulate in the national interest “the coming into, and presence in, Australia of non-citizens” the legislature should be taken to be concerned with the object expressed in those terms rather than any conduct that was completed prior to “The coming into, and presence in, Australia of non-citizens”.[6]  In my view that does not assist the argument on behalf of the accused as clearly conduct taking place prior to entry into Australia is relevant to those same objects directed at entry into Australia within the context of the Migration Act (CW).

[16]     It was argued the correct construction of the physical elements under the Criminal Code Act (CW) was that s 233C was a “result” offence; that being brought to Australia was a “result” that must be achieved before it could be said the physical elements had been proven.  Under the Criminal Code Act (CW) a physical element of an offence may be conduct, or a result of conduct, or a circumstance in which conduct, or a result of conduct occurs.  It is possible that an offence has more than one physical element.  The suggested construction that “bringing to Australia” was a “result” of conduct in the sense that the result is that people arrive at Australia does not advance the argument.  “Facilitating the bringing to Australia” defines the whole physical element.  It is not at all apparent that this is an offence defined in terms of the result of conduct. 

[17]     The language of the Criminal Code Act (CW) cannot obscure the necessity to define the physical elements in the offence creating section.  This primarily calls for analysis of the statutory language creating the offence.  This section adopts language to describe a physical element without declension into distinct incidents of conduct, circumstance or result.  It calls for an approach similar to that taken in R v Saengsai-Or[7] dealing with the offence of importing a prohibited import.  In R v Saengsai-Or it was concluded that the offence of importing a prohibited import comprised a physical element of conduct alone or conduct having a certain character in respect of which the fault element of intention applied.  The physical elements that may theoretically be available under Criminal Code (CW) in relation to a particular charge should not be understood as applying to every Commonwealth offence.  As there is no fault element proscribed for            s 233C Migration Act (CW), intention is the default fault element for the conduct.  If the accused were correct, (although it might have assisted his argument concerning the breadth of the prescribed conduct in this case), it would mean the default mental element ascribed to “bringing to Australia” could be satisfied by recklessness only, being the default element for offences consisting of a circumstance or result.[8]  Recklessness is less susceptible to proof than intent.  Such an interpretation would consequently broaden the scope of criminal liability beyond what is clear.

[18]     I note the useful discussion in Odgers, Principles of Federal Criminal Law[9] where it is stated that when characterising the physical elements what will be relevant is analysis of the statutory language creating the offence; consideration of the legislative history of the provision; application of general principles of statutory interpretation, (including a focus on the purpose of the legislation and consideration of the statutory context), and consideration of how an ordinary person observing the conduct in surrounding circumstances would identify or characterise the conduct being observed.

[19]     In my view the words of the section taken with the stated purpose and objects of the Migration Act (CW) naturally lead to the conclusion that the offence may be completed prior to passengers reaching Australia provided the other elements including importantly the mental elements are proven.  This is also consistent with previous interpretations in this Court.[10]

[20]     Argument was also directed to the meaning of “facilitates”.  Counsel for the accused argued that the broad meaning given to the expression “facilitates”, particularly when that occurred prior to arriving in Australia would mean there was no work to do for an offence of “attempt” to facilitate the bringing of persons to Australia. It is not unheard of that some offences are defined in a way that would exclude any possibility of charging “attempts”.[11]  I was referred to previous directions given in this Court[12] stating “facilitated” means “made easy, aided or assisted”.  “Facilitate” may be constituted by a broad range of aiding or assistance.  An example is given in Reg v Singh[13] albeit in a different context, where the “facilitating” occurred by assistance given to the prohibited persons after the point of entry into the United Kingdom.  The opposite point was taken in that case to the issue here; that acts of assistance could not constitute the offending when they took place after entry.  The Macquarie Dictionary definition of “facilitate” accords with meaning given in previous cases discussed: [14] “to make easier or less difficult; help forward (an action, a process, etc); to assist the progress (of a person)”. 

[21]     I ruled therefore the Crown did not need to prove the arrival of the passengers at Australia or a completed journey for the physical element of this charge to be made out.

[22]     After the resolution of this issue, essentially the question of intention in relation to facilitation and recklessness as to the relevant status of the passengers emerged as the primary issues at trial.


[23]     A further question arose on whether the defence of duress was available on the evidence as it stood at the conclusion of the Crown case.  I ruled that it was not.  No authorities were referred to in argument.  Section 10.2 Criminal Code Act (CW) provides the defence of duress as follows:

(1)     A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence under duress.

(2)     A person carries out conduct under duress if and only if he or she reasonably believes that:

(a)     a threat has been made that will be carried out unless an offence is committed; and

(b)     there is no reasonable way that the threat can be rendered ineffective; and

(c)     the conduct is a reasonable response to the threat.

(3)     This section does not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of carrying out conduct of the kind actually carried out.

[24]     The accused need only satisfy the evidential burden, “the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist”.[15]  The only relevant evidence came from Mr Suwandi.  He gave evidence of a threat by a passenger to himself that occurred two days and one night into the journey.[16]  He was then assaulted by a passenger at about the time of being arrested by customs.[17]

[25]     More particularly, Mr Suwandi told the Court that after Ridwan left the boat, and after the boat had started moving it was just himself and Mr Mahendra left with the passengers.  He said he and Mr Mahendra agreed they would take the people.[18]  He said the conversation of what he said to Mr Mahendra was something like “so what – what next, will we just continue the journey because the passengers might kill us, might kill the two of us if we don’t take them.  So maybe its better for two of us to take them”.  He said Mr Mahendra said “we have – we have to take these people, we’ve already gone far too deep.  So yeah, that was all”.  Mr Suwandi said he thought “definitely the people would do harm to him if he didn’t take them”. 

[26]     He agreed nobody had threatened he or Mr Mahendra at that time.  He said “yes, that’s right, but even if he had not been threatened but that threat is imminent.  It would happen”.  He explained that what the passengers may do to him and Mr Mahendra was on his mind.  He said he never felt at ease.  He later clarified this and similar statements saying they were both willing, there was no force on either his or Mr Mahendra’s part.  They agreed to come because they were going to get “big money”.[19]

[27]     Mr Suwandi gave evidence of the incident when he said a passenger threatened him.  It was a day and a night into the journey.  The threatening gesture Mr Suwandi referred to occurred on the roof of the wheelhouse.  He said Mahendra was sitting there as well.[20]  The passenger who threatened him ran his finger across Mr Suwandi’s neck in a threatening gesture.  His evidence initially was that the person had said they would kill him if he did not take them to Australia.  Later he qualified that saying that the person could not speak Indonesian; that he made the gesture and that was all.[21]  He understood the gesture meant he would be killed.  In relation to the threat that occurred on the wheelhouse cabin Mr Suwandi agreed with a suggestion put to him in cross-examination that he never felt at ease when he left Lombok “but as for Mahendra, he was okay”.  He also said in relation to when Mahendra was sitting on the wheelhouse roof that at that time Mr Mahendra just laughed “while I was feeling scared”.[22]  He said he feared for his own death or serious injury if he didn’t take that person to Pulau Pasir  but he said “about me, I think, yeah, it will happen to me, but I am not sure if it will happen to Mahendra because I was the only one being threatened”.  He agreed he feared the threat to kill would be carried out. 

[28]     When asked whether that was why he brought the passengers to Australia he said “no, not just that.  We both agree, me and Mahendra, there was no force involved.  Both me and Mahendra both agreed to take those people”. 

[29]     In relation to the assault that occurred after detection at about the time they were apprehended, he said Mr Mahendra was not present. 

[30]     Although I appreciate discharging the evidential burden is not onerous and that pointing to relevant evidence is sufficient, the evidence taken at its highest in my view does not discharge even the evidential burden.  The only potentially relevant evidence is the evidence from Mr Suwandi.  The only evidence of any threatening behaviour at all directed to Mr Suwandi in the presence of Mr Mahendra did not occur until they were well into the voyage.  The threatening behaviour was directed to Mr Suwandi in circumstances where he says Mr Mahendra was laughing.  Mr Mahendra was not present on the evidence for the assault.  In those circumstances I was not of the view that there was reasonable evidence of duress.  Had there been evidence of any kind that indicated Mr Mahendra reasonably believed the threat would be carried out, either on himself or Mr Suwandi, that would have been different.  Obviously there was nowhere to retreat other than the sea and risking drowning.[23]  There was no evidence of threats at the beginning of the voyage and certainly nothing to indicate Mr Mahendra believed harm would occur, or had a reasonable belief it would occur as a result of a threatening gesture towards Mr Suwandi. 

[31]     The evidence of the threat to Mr Suwandi could not have been operative until the voyage was well and truly underway.  Had there been evidence of a threat prior to or at the very commencement of the voyage pointing to a reasonable belief on the part of Mr Mahendra that it would be acted on then it is likely duress would have been put to the jury.  What was pointed to in relation to duress was quite different.  In my view the accused also faced the hurdle of 10.2.3 Criminal Code Act (CW) concerning his voluntary association with a person for the purpose of carrying out the conduct of the kind actually carried out.  I accept the non-citizens were not themselves involved in any criminality.  The section however is broader than excluding duress caused by accomplices and others actively engaged in a criminal enterprise.  It excludes duress when an accused is “voluntary associating” with the person “for the purpose of carrying out conduct of the kind actually carried out”.  There is no evidence that can be pointed to that shows Mr Mahendra was associating with any of the passengers, other than on a voluntary basis and other than for the purpose of assisting their travel.

[32]     As to whether there were any general difficulties of a threatening nature between the passengers and Mr Suwandi and Mr Mahendra, none of the six passengers called gave evidence of that.  Those directly asked said they did not observe any difficulties, hence there was no other evidence the accused could point to to discharge the evidential onus.

[1] Section 236B Migration Act (CW).

[2] (2005) 224 CLR 193 at 210-11.

[3] Subdivision “A”, the relevant subdivision applies from s 228A – 236B, Migration Act (CW).

[4] (1997) 93 A Crim R 425.

[5] At 431.

[6] Section 4 Migration Act (CW) sets out the object of the Act.

[7] (2004) 61 NSW LR 135 at paras [59] – [72].

[8] S 5.6(1), 5.6(2) Criminal Code Act (CW).

[9] Second Edition at 4.1.170.  The text acknowledges this is in part drawn from a paper “Unravelling the Commonwealth Criminal Code” by Howie J (2002).  See Odgers, 4.1.170 footnote 11.

[10] Rutu v Ladjiluv Dalla Costa (above) and noting Mr Suwandi’s plea of guilty was accepted on the same facts as here, although the point was not taken: The Queen v Rudi Suwandi, Transcript 18/2/2011, Riley CJ.

[11] In the Criminal Code (NT) eg, s 109 Attempt to pervert the course of justice; s 103 Attempt or prevent a witness attending …

[12]  Eg R v Husayni Bin and Madi.

[13] (1972) WLR 1600.

[14] The meaning of “facilitate” is also discussed in submissions and a ruling by Fenbury DCJ in The Queen v Abdullah and Kakmur, 12/7/2000.

[15] S 13.3(b) Criminal Code Act (CW).

[16] T 106.

[17] T 106.

[18] T 62.

[19] T 109.

[20] T 67.

[21] T 68.

[22] T 101.

[23] Hence the elements within 10.2.2 Criminal Code Act (CW) may have been available in those circumstances.