R v Konsaijan Hc Ak
| Jurisdiction | New Zealand |
| Judge | Allan J |
| Judgment Date | 06 September 2012 |
| Neutral Citation | [2012] NZHC 2293 |
| Docket Number | CRI 2011-090-6500 |
| Court | High Court |
| Date | 06 September 2012 |
[2012] NZHC 2293
CRI 2011-090-6500
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
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.
Mr R M A McCoubrey for the Crown
Mr S Lance for the Accused
Counsel: S Lance, Auckland: simon@simonlance.co.nz
REASONS OF Allan J FOR DISCHARGE OF ACCUSED
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.
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.
At 1000 am on Tuesday 4 September 2012, I discharged Ms Konsaijan pursuant to s 347 of the Crimes Act.
This judgment contains my reasons for my earlier ruling.
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.
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.
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.
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.
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.
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.
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.
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.
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”.
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.
My ruling upheld Mr Lance's argument and rejected that of Mr McCoubrey.
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)
An offence under this subsection carried a maximum penalty of seven years' imprisonment.
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 been brought under the subsection, which was inserted as from 18 June 2002 by s 15(1) of the Immigration Amendment Act 2002. That is the same date as that upon which s 98C of the Crimes Act 1961 came into force. It is in my view proper to infer that the amendments formed part of a substantial revision of the enforcement provisions of New Zealand's immigration laws. The difficulty is, as discussed below, that s 142(1)(eb) was re-enacted in 2009 in a manner that renders it inapplicable in the present case.
The legislative history of s 98C of the Crimes Act is helpfully discussed in the judgment of the Court of Appeal in R v Chechelnitski 1 There Glazebrook J, writing the judgment of the Court, discussed at length the link between certain provisions of the Crimes Amendment Act 2002, which enacted s 98C, and New
Zealand's obligations under the United Nations Convention Against Transnational Organised Crime. She said:[3] Sections 98B to 98F were introduced into the Crimes Act by the Crimes Amendment Act 2002. This amendment incorporated two new offences into the principal Act, one of smuggling migrants (s98C) and one of trafficking in people by means of coercion or deception (s98D). The offence of smuggling migrants is concerned with persons who, for material benefit, arrange for illegal migrants to enter or be brought to New Zealand, knowing, or being reckless as to whether, the migrant is unauthorised. Trafficking, conversely, is concerned with the situation where the migrant's entry into New Zealand has been procured by acts of coercion or deception. Both offences are punishable by imprisonment for a term not exceeding 20 years, a fine not exceeding $500,000, or both. Section 98E provides that, when sentencing a person for an offence against either ss98C or 98D, the court must take into account certain factors, including the number of migrants involved, whether the migrants were subjected to inhuman or degrading treatment, whether bodily harm or death occurred and whether the offence was part of the activities of an organised criminal group as defined in s98A. The...
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