R v Konsaijan Hc Ak

JurisdictionNew Zealand
CourtHigh Court
JudgeAllan J
Judgment Date06 Sep 2012
Neutral Citation[2012] NZHC 2293
Docket NumberCRI 2011-090-6500

[2012] NZHC 2293

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-090-6500

The Queen
and
Wimonrat Konsaijan
Appearances:

Mr R M A McCoubrey for the Crown

Mr S Lance for the Accused

Counsel: S Lance, Auckland: simon@simonlance.co.nz

Application for ruling on proper interpretation of s98C Crimes Act 1961 (“CA”) (smuggling migrants) — accused was Thai national who assisted three others in obtaining visitor visas for NZ — Crown alleged the accused deliberately told complainants they would be able to work once they arrived in NZ, deliberately falsified certain documents, and gave clients explicit instructions about what to say when they arrived at the NZ border — common ground that alleged offending would have been caught by s142(1)(eb) Immigration Act 1987 (“IA”) (offences) but that section was re-enacted in 2009 in a manner that rendered it inapplicable to this case — whether any complainant was an “unauthorised migrant” for the purposes of s98C CA.

At issue was whether any complainant was an “unauthorised migrant” for the purposes of s98C CA

Held: The intention of the legislature, when enacting s98C CA, had to be determined as at the date of enactment, without reference to the practical legislative predicament that had arisen in this case. As per R v Karpavicius there was general agreement that ambiguities in penal statutes were no longer exempt from ordinary purposive construction principles.

Adopting a literal interpretation of the definition of the expression “unauthorised migrant”, it could not be said that the provisions of s98C were engaged, as the complainants each presented themselves at the border with valid passports and valid visas which entitled them to enter NZ lawfully. Acceding to the Crown position would have been to effectively rewrite the definition by adding “having regard to all the circumstances in which that person sought entry” or similar. Parliament's legislative purpose did not call for such an approach because:

  • (1) s98C represented part of Parliament's response to its international obligations as discussed in R v Chechelnitski and was aimed at migrant smuggling;

  • (2) the aggravating features listed in s98E CA (aggravating factors) were for the most part consistent with an intention to catch organised human trafficking rather than visa irregularities of this type;

  • (3) the requirement for the consent of the Attorney-General to the laying of any charge under s98C suggested that it was Parliament's intention to catch only cases of sufficient gravity to justify the expense and inconvenience of requiring such oversight;

  • (4) there was no legislative gap of the sort which was determinative in R v Karpavicius since s142(1)(eb) IA was enacted by Parliament at the same time as s98C; and

  • (5) if the Crown argument was correct then s98C would apply in any case where an apparently valid visa was liable to be set aside or cancelled on the basis of any irregularity, however small.

Accordingly the evidence relied on by the Crown did not bring the case within s98C.

K was discharged.

REASONS OF Allan J FOR DISCHARGE OF ACCUSED

Introduction
1

Ms Konsaijan's trial on three counts laid under's 98C of the Crimes Act 1961 commenced on 3 September 2012. Following jury empanelling, I heard argument as to the proper interpretation of s 98C. At the conclusion of the argument I ruled that, on its proper interpretation, the section was narrower than was contended by the Crown and that I would give my reasons later.

2

Following my ruling, Mr McCoubrey advised the Court that the Crown was not in a position to proceed because the Crown case was based upon a view of s 98C which I had ruled to be too wide. He accepted that, in those circumstances, Ms Konsaijan was entitled to be discharged but advised that he would be asking the Court to refer a question of law arising out of my ruling for the opinion of the Court of Appeal pursuant to s 381A of the Crimes Act 1961.

3

At 1000 am on Tuesday 4 September 2012, I discharged Ms Konsaijan pursuant to s 347 of the Crimes Act.

4

This judgment contains my reasons for my earlier ruling.

The Crown case in outline
5

Ms Konsaijan is a Thai national. In about December 2010, she was approached by three other Thai adult female nationals who asked her to assist them in obtaining visas which would permit them to travel to Australia to work. It was agreed that the accused would arrange visitor visas for travel to Australia, the women supplying her with the necessary documentation including passports and ID cards. The women agreed to pay the accused a substantial fee.

6

Visa applications to the Australian authorities were unsuccessful. Ms Konsaijan then applied for visas to enable the three women to enter New Zealand. Although some were reluctant to go to New Zealand, they did provide further material to Ms Konsaijan and ultimately in June 2011 she advised them that they had been granted visitor visas for New Zealand.

7

On the Crown case, she also told them that, although they had obtained visitor visas, they would be able to work once they arrived in this country. The Crown also contends that the accused, who was responsible for the preparation of the various applications to the New Zealand immigration authorities, deliberately falsified certain documents and that she gave her three clients explicit instructions about what to say when they arrived at the New Zealand border.

8

All three, along with the accused and her daughter, arrived at Auckland International Airport on 13 July 2011. The accused and the three women were given one month visitor visas. Ms Konsaijan's daughter was granted a three month student visa.

9

It soon became clear that no work had been arranged for the complainants. Within a matter of days they were taken into the care of members of the New Zealand Thai community who provided food and lodgings. Ultimately a complaint was made to Immigration New Zealand, which instituted criminal proceedings against the accused.

10

Mr Lance advises the Court that much of the Crown case is disputed. For example, Ms Konsaijan denies that she received any material benefit for the arrangements she made on behalf of the complainants. It is, however, common ground that each of them arrived in New Zealand carrying valid passports and that, based upon the material the complainants had earlier submitted to Immigration New Zealand through the accused, the complainants were each entitled to a visitor's visa.

Section 96C Crimes Act 1961
11

The indictment upon which Ms Konsaijan stood her trial was founded upon the provisions of s 98C of the Crimes Act 1961 which provides:

98C Smuggling migrants

  • (1) Every one is liable to the penalty stated in subsection (3) who arranges for an unauthorised migrant to enter New Zealand or any other state, if he or she—

    • (a) does so for a material benefit; and

    • (b) either knows that the person is, or is reckless as to whether the person is, an unauthorised migrant.

  • (2) Every one is liable to the penalty stated in subsection (3) who arranges for an unauthorised migrant to be brought to New Zealand or any other state, if he or she—

    • (a) does so for a material benefit; and

    • (b) either knows that the person is, or is reckless as to whether the person is, an unauthorised migrant; and

    • (c) either—

      • (i) knows that the person intends to try to enter the state; or

      • (ii) is reckless as to whether the person intends to try to enter the state.

  • (3) The penalty is imprisonment for a term not exceeding 20 years, a fine not exceeding $500,000, or both.

  • (4) Proceedings may be brought under subsection (1) even if the unauthorised migrant did not in fact enter the state concerned.

  • (5) Proceedings may be brought under subsection (2) even if the unauthorised migrant was not in fact brought to the state concerned.

12

In order to establish its case, the Crown was obliged to show that one or more of the complainants was an “unauthorised migrant” for the purposes of s 98C. That term is defined in s 98B as:

… a person who is neither a citizen of the state nor in possession of all the documents required by or under the law of the state for the person's lawful entry into the state.

13

Mr Lance argued that each of the complainants did have possession of the documents required to enable them to enter lawfully into New Zealand. They had valid passports and validly-issued visas, and they obtained permission from immigration officers at border control to enter New Zealand. Accordingly, he argued, they are not “unauthorised migrants”.

14

Mr McCoubrey, on the other hand, argued that the complainants were unauthorised migrants because they did not have all of the documents required (work visas) for their lawful entry into New Zealand in their particular circumstances.

Those circumstances included an intention to seek work. A visitor's visa would not have provided for lawful entry for that purpose.

15

My ruling upheld Mr Lance's argument and rejected that of Mr McCoubrey.

Discussion
16

It is common ground that the alleged offending would have been caught by s 142(1)(eb) of the Immigration Act 1987 which, so far as is relevant, provided that it was an offence where any person:

Whether within or outside New Zealand, and whether or not the other person in fact enters New Zealand, aids, abets, incites, counsels, or procures any other person to enter New Zealand unlawfully (whether by arriving in New Zealand in a manner that does not comply with section 126(1), by arriving in New Zealand without holding a visa where the other person requires a visa to travel to New Zealand, or otherwise howsoever)

17

An offence under this subsection carried a maximum penalty of seven years' imprisonment.

18

Counsel are agreed that the present alleged offending fell within the expression “or otherwise howsoever” in s 142(1)(eb) and that cases have routinely...

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