Count 1 related to a vessel, referred to at trial as the 'Flinders', which arrived at Christmas Island on 25 March 2001 with 198 passengers including two crew. Count 14 related to a vessel, referred to at trial as the 'Nullawarre', which arrived at Christmas Island on 22 April 2001 with 201 passengers including two crew. Count 18 related to a vessel, referred to at trial as the 'Yambuk', which arrived at Christmas Island on 4 August 2001 with 148 passengers including the crew. Count 20 related to a vessel, referred to at trial as the 'Conara', which arrived at Christmas Island on 22 August 2001 with 364 passengers including five crew.
The appellant was an assistant to an Indonesian-based 'people smuggler', Sayed Omeid. The appellant looked after the passengers in Indonesia before their departure from Indonesia to Australia. He was responsible for their hotel accommodation and this included, in some cases, handling money and assisting in the transport of the passengers to the vessels.
The appellant was born on 22 June 1975 in Iraq. His father was a prominent dissident Shiite cleric, who was killed in 1992 during the Shiite uprising against the regime of Sadam Hussein.
The appellant and his family went to Iran when he was aged 10 years. They lived as refugees in that country until late 2000 when the appellant left Iran and sought refugee status in Indonesia.
In Indonesia, the appellant became associated with Omeid and others as a representative of a group of refugees who were hiding in Indonesia and who wanted to travel to Australia.
The appellant's case was that he acted out of a sense of 'religious humanitarian duty' in assisting the passengers the subject of the principal counts in the indictment.
District Court of Western Australia
The defendant argued a defence of necessity to absolve him of criminal liability for the charges. The basis of this defence was that his religious convictions required him to aid the refugees that was accused of assisting in smuggling to Australia because if he did not they would likely be captured by Indonesian Police and deported back to the countries that they were fleeing which would result in their death. The judge declined to put the defence of necessity to the jury as it was deemed that there was insufficient evidence to support that the threat was imminent and thus the defence had not been satisfied.
Supreme Court of Western Australia
The appeals were denied.
The appealed court held that there was no evidence to support a defence of necessity so the trial judge was correct not to put that to the jury. The appeal court also held that while the interruptions during closing statements were poor form they did not result in a miscarriage of justice. As such the appeal was dismissed.
People Smuggling (4 Counts)
Supreme Court of Western Australia (Court of Appeal)
This case demonstrates the willingness of the Australian Government to apply its criminal law related to people smuggling in an extraterritorial manner (as all the defendant’s activity took place in Indonesia) and that the defence of necessity will only be put to a jury if there is sufficient evidence to support such a defence.