FEDERAL COURT OF AUSTRALIA
DATE OF ORDER:
THE COURT ORDERS THAT:
2. The applicant is to pay the respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 Mr Mario Saric (Mr Saric) and his companion, Mr Jerko Bonacic (Mr Bonacic), are experienced sailors. Each of them had a significant history in the boating industry and, in particular, in sailing yachts. On 23 November 2016, they left their home in Dubrovnik, Croatia with another person and commenced an around-the-world voyage in Mr Saric’s yacht, a 12.9 metre Akilaria Class 40 RC2 racing yacht, SY Exodus (Exodus). The voyage was not a happy one and they required assistance from various port authorities on a number of occasions. On 19 June 2017, Mr Saric and Mr Bonacic arrived onboard Exodus at Southport in the State of Queensland. By doing so they entered the Australian migration zone. Neither had obtained, nor sought, a visa for the purposes of entering Australia. The Exodus was intercepted by a Queensland Police Service vessel and boarded by members of the Australian Border Force. Mr Saric and Mr Bonacic were detained.
2 Subsequently, the Commonwealth asserted that the vessel, Exodus, had been automatically forfeited to it pursuant to s 261A of the Migration Act 1958 (Cth) (the Act). It also asserted that all of the equipment on board was similarly forfeited. The Commonwealth claimed the vessel was automatically forfeited because it had been involved in a contravention of s 229(1) of the Act which involved the bringing to Australia of persons who were, upon entry, unlawful non-citizens. By this action Mr Saric seeks declarations pursuant to s 261H(3) of the Act that the vessel and all its equipment had not been forfeited to the Commonwealth. He seeks to recover the vessel or its value.
3 Ultimately there was relatively little dispute about the factual circumstances as to how Exodus came to arrive in Australia and the outcome of this matter largely, although not entirely, turns on the construction of the Act.
4 For the reasons identified below Mr Saric is not entitled to the declarations he seeks. He has not made out any of the grounds supporting his assertion that the Commonwealth had not established that a contravention of s 229 occurred. The vessel stands condemned as forfeited to the Commonwealth.
The legislative scheme
5 Before considering the facts in detail it is appropriate to identify the relevant legislative provisions which bear upon the issues to be decided.
6 The provisions in Division 13A of the Act provide instances where things used in the commission of offences under the Act will be forfeited to the Commonwealth. In particular, Division 13A, which is entitled, “Automatic Forfeiture of Things Used in Certain Offences”, contains provisions relating to the forfeiture of things without action by the Commonwealth. In particular, s 261A of the Act provides:
Forfeiture of things used in certain offences
(1) The following things are forfeited to the Commonwealth:
(a) a vessel used or involved in a contravention of this Act (where the contravention occurred in Australia), if the contravention involved:
(i) the bringing or coming to Australia of one or more persons who were, or upon entry into Australia became, unlawful non-citizens; or
(ii) the entry or proposed entry into Australia of one or more such persons;
(b) a vehicle or equipment:
(i) on a vessel described in paragraph (a) at the time of the contravention mentioned in that paragraph; or
(ii) used or involved in the contravention referred to in that paragraph.
7 There exists an exception in s 261A(2) in relation to vessels which are being used in the course of a regular public transport operation. There was no suggestion from Mr Saric that this exception applied to him. Indeed, it is apparent from his own evidence that he left the port of Dubrovnik, Croatia, on 23 November 2016, intending to “sail around the world” and that use of the vessel does not bring the present circumstances within the exception created by s 261A(2).
8 Various machinery provisions are provided for in subdivisions B and C of Division 13A of the Act. They relate to the process of seizure of a vessel used or involved in a contravention of the Act and, indeed, the seizure of equipment on such a vessel. Section 261B provides that an authorised officer may seize a thing in Australia if it has been forfeited under s 261A or the authorised officer reasonably suspects that the thing has been forfeited under that section. Upon the seizure of any such thing, pursuant to s 261D, the officer seizing the same must give a written notice of the seizure to its owner. The contents of that notice are prescribed by s 261D. One such requirement is that it must state the thing will be condemned as forfeited unless, within 21 days, the owner of the thing gives the Secretary of the Department, or the Australian Border Force Commissioner, a claim for the thing. Pursuant to s 261F, the thing seized is condemned as forfeited to the Commonwealth 21 days after the notice of seizure has been given under s 261D unless, within that period, the owner of the thing or person in possession, custody or control of it immediately before seizure, makes a written claim to the Secretary or the Australian Border Force Commission to that effect. Section 261G makes provision for dealing with a claim for the thing which has been seized. Pursuant to that section, unless the Minister gives a written order that the thing is not condemned as forfeited, the Secretary or Commissioner may give the claimant a written notice stating that the thing will be condemned as forfeited unless, inter alia, the claimant institutes proceedings against the Commonwealth within one month to either recover the thing or for a declaration that the thing is not forfeited. If such proceedings are not instituted within one month after the notice pursuant to s 261G is given, the thing is then condemned as forfeited to the Commonwealth. However, pursuant to s 261H(3), where such proceedings are commenced within the one month period, the thing is condemned as forfeited to the Commonwealth unless, inter alia, at the end of the proceedings either an order for the claimant to recover the thing is made or there is a declaration that the thing is not forfeited.
Satisfaction of the machinery provisions
9 There is no contention between the parties that the above procedural provisions have been satisfied in this case and that Mr Saric has appropriately commenced these proceedings which, if successful, will have the effect of preventing Exodus and the equipment on it being condemned as forfeited to the Commonwealth.
10 On 11 July 2017, Mr James Watson, an ABF officer who was authorised to exercise power under s 261B, seized Exodus and its equipment. He issued a notice pursuant to s 261D(1) for the seizure of both the vessel and the equipment on board. The next day, on 12 July 2017, Mr Saric was served with the s 261D notice. It is not in contention that within 21 days of the service of that notice, the Department received a letter dated 1 August 2017 from Terry Fisher of Fisher Dore Lawyers, stating that they acted for Mr Saric and enclosing a s 261F claim for the return of the vessel and the equipment. That satisfied the giving of notice under s 261F(1)(a). Subsequently, on 13 November 2017, the Australian Government Solicitor (the AGS) acting on behalf of the Department sent a letter to Fisher Dore Lawyers by email which enclosed, by way of service, a notice pursuant to s 261G, requiring Mr Saric to institute proceedings for a relevant declaration. It is also not in contention that, within one month after receiving that notice, Mr Saric commenced legal proceedings, being the one presently before the Court. That occurred by the filing of the Originating Application in this Court on 13 December 2017.
Contravention of the Act
11 As appears from s 261A, a vessel is liable to forfeiture if it is “used or involved in a contravention of this Act (where the contravention occurred in Australia) if the contravention involved the bringing or coming to Australia of persons who became unlawful non-citizens on arrival or the entry or proposed entry into Australia of one or more such persons”.
12 The meaning of the expression “unlawful non-citizen” is derived from the operation of a number of sections of the Act. A “non-citizen” is a person who is not an Australian citizen (s 5(1)). However, a non-citizen may be a “lawful” or “unlawful” non-citizen. A person is a lawful non-citizen if, not being an Australian citizen, they either hold a visa that is “in effect” or is an “allowed inhabitant of the Protected Zone who is in a protected area in connection with the performance of traditional activities” (s 13). Putting aside the latter category, which is not relevant for present circumstances, a person who is a non-citizen and who does not hold a visa that is in effect when they enter Australia, will be an “unlawful non-citizen”.
13 Section 229(1) of the Act creates an offence in relation to the carriage to Australia of non-citizens who do not hold visas. It provides:
(1) The master, owner, agent, charterer and operator of a vessel on which a non-citizen is brought into Australia on or after 1 November 1979 each commit an offence against this section if the non-citizen, when entering Australia:
(a) is not in possession of evidence of a visa that is in effect and that permits him or her to travel to and enter Australia; and
(b) does not hold a special purpose visa; and
(c) is not eligible for a special category visa; and
(d) does not hold an enforcement visa; and
(e) is a person to whom subsection 42(1) applies.
(2) A person who commits an offence against this section is liable, upon conviction, to a fine not exceeding 100 penalty units.
(3) An offence against subsection (1) or (1A) is an offence of absolute liability.
14 It is to be recognised that the offence created by s 229(1) is a criminal offence and not within the definition of a “civil penalty provision” as provided for by s 5 of the Act. Additionally, reg 5.21 of the Migration Regulations 1994 (Cth) provides that a contravention of s 229 is an “offence” and not a “civil penalty provision”.
15 It follows the commission of an offence by the contravention of s 229(1) engages the operation of s 261A as it involves both the use of a vessel and the bringing of an unlawful non-citizen or unlawful non-citizens to Australia.
16 Quite rightly there was no submission made on behalf of Mr Saric that a contravention of s 229(1) was not an offence which would attract the operation of s 261A.
Standard of proof
17 With one exception there was very little dispute as to the relevant onus and standard of proof applicable to the various issues in this matter.
18 The Commonwealth submitted the standard of proof applicable to the finding of “a contravention of the Act” is the civil standard, being on the balance of probabilities: Tran v Commonwealth (2010) 187 FCR 54 at 81  per Rares J citing Rejfek v McElory (1965) 112 CLR 517. Generally, Mr Saric did not cavil with that proposition.
19 However, as the application of s 261A necessitates determining whether a contravention of the Act which amounted to a crime has occurred, the Court is required to pay close attention to s 140(2) of the Evidence Act 1995 (Cth) in considering whether the requisite state of satisfaction has been reached: see Tran v Commonwealth at 81,  per Rares J citing Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 at 479 - 482  -  per Weinberg, Bennett and Rares JJ. Section 140(2) of the Evidence Act is a statutory recognition of the rule in Briginshaw v Briginshaw (1938) 60 CLR 336 where the High Court identified the common law position that in civil proceedings involving serious allegations, such as criminal conduct or the affectation of livelihood, the standard of proof on the balance of probabilities remains, but the degree of satisfaction varies according to the gravity of the facts to be proved. The matters identified in s 140 relevant to establishing a state of “reasonable satisfaction” in the mind of an arbiter of fact include the seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description and the gravity of the consequences flowing from a particular finding. In this respect, the Commonwealth referred to the decision of this Court in Oblers Co Ltd v Commonwealth (2004) 136 FCR 67 which concerned the operation of a forfeiture scheme under the Fisheries Management Act 1991 (Cth). Pursuant to s 106A of that Act, upon the commission of the relevant offence, a foreign boat was automatically forfeited to the Commonwealth. French J considered the standard of proof required in relation to a finding of an offence of that nature. In reaching his conclusion as to whether the contravention had been established, French J made the following observations:
It is not necessary for present purposes that I make any finding that a named person or persons committed the offences against ss 100 and 101. It is sufficient that I am satisfied that the Volga [being the vessel] was used by some person or persons for commercial fishing in the AFZ in contravention of s 100(1) and that it was a foreign boat in the AFZ equipped with equipment for fishing and to which none of the exceptions in s 101 applied. I have regard to the fact that although these are civil proceedings a finding that offences had been committed is a serious matter and it is necessary that an appropriate degree of satisfaction be reached, albeit it is not necessary that I be satisfied beyond reasonable doubt that offences have been committed. I am satisfied to a high degree of probability that the offences to which I have referred were committed.
20 The approach of French J was approved by Besanko J in Tran at .
21 It must be kept in mind that a consequence of finding that s 299(1) has been contravened is that Mr Saric’s vessel will stand condemned as forfeited to the Commonwealth. That would be a significant detriment to him although his liberty is not imperilled and nor will he have a conviction recorded against his name. It is also relevant that the offence is one of strict liability and no “fault element” as defined by the Act and the Criminal Code 1995 (Cth) (the Criminal Code), arises for consideration. It is not alleged, because it is not necessary, that Mr Saric intended to contravene the migration laws of this country or that he did so dishonestly, and no such issue arises when determining whether s 229(1) was contravened. In this respect, there is no need to make a finding against him which involves any element of moral turpitude or obliquity. That said, at paragraph 29 of his affidavit Mr Saric raised the issue of whether he was aware of the visa entry requirements for Australia. He said that he had been misinformed about these requirements. As will be seen, that is not a proposition which ought to be accepted. Nevertheless the point to be made is that, absent it having been raised by Mr Saric, there would not have been any need to consider it and the relevant issues do not necessarily require any determination of intentional wrongdoing.
Disproving defences raised
22 In the course of oral addresses a question arose as to the standard of proof the Commonwealth was required to satisfy when negating any defences legitimately raised by Mr Saric under s 10.1 and 10.3 of the Criminal Code. Subsequent to the conclusion of the hearing the parties delivered further written submissions on this topic. In broad terms, Mr Saric submitted the Commonwealth must disprove those defences to the criminal standard, being beyond reasonable doubt. The Commonwealth submitted it need only satisfy the Court of the absence of those defences to the civil standard, being on the balance of probabilities as informed by s 140 of the Evidence Act and the decision in Briginshaw v Briginshaw (1936) 60 CLR 336.
23 It is uncontroversial that Mr Saric’s action is a civil proceeding brought under the provisions of the Act and in which he seeks an order that his vessel was not condemned as forfeited to the Commonwealth. The forfeiture occurred, so the Commonwealth alleged, by operation of s 261A because the vessel was involved in a contravention of s 229(1) which, itself, involved “the bringing or coming to Australia of one or more persons who were, or upon entry into Australia became, unlawful non-citizens”.
24 The Commonwealth correctly conceded it carried the legal burden of proving the contravention of s 229(1) because that establishes, in a prima facie sense, the automatic forfeiture to it of the vessel and equipment. It was not in dispute that s 140 of the Evidence Act provided that the relevant standard of proof is the civil standard. That section reads:
140 Civil proceedings: standard of proof
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
25 It was also not in controversy that Mr Saric carried the evidential burden of raising any defence to the alleged contravention of s 229(1) and, subject to certain exceptions, once raised, the Commonwealth carried the legal burden of negativing them. The exception related to the matters of defence in s 229(5)(c)(ii) or (iii) in respect of which Mr Saric accepted he bore the legal burden of establishing: see s 229(6). In relation to that burden, s 4A of the Act imports relevant provisions of the Criminal Code in respect of offences under the Act and, by ss 13.4 and 13.5 of the Criminal Code, the legal burden on Mr Saric of establishing the defences is on the balance of probabilities.
26 Mr Saric also accepted that, by s 13.3 of the Criminal Code, he carried the evidential burden of raising any defence under ss 10.1 and 10.3 of that code. That burden required him to adduce or point to evidence in respect of such defences “that suggests a reasonable possibility that the matter exists or does not exist”. The crucial issue between the parties concerned the standard to which the Commonwealth must exclude any defences so raised. The Commonwealth accepted that if the issues arose in the course of a criminal prosecution, it would be required to exclude them beyond reasonable doubt: ss 13.1(2) and 13.2(1) of the Criminal Code. However, it says that is not the case in the present proceedings where the civil standard of proof is applicable.
27 The arguments advanced by Mr Saric on this issue were relatively brief. He submitted that s 4A of the Act imported ss 10.1, 10.3 of the Criminal Code and the provisions dealing with the burden of proof found in Division 13, Part 2.6, Chapter 2. He further submitted that, once he had discharged the evidential burden of raising any defence in s 10.2 or 10.3, the Commonwealth bore the legal burden of disproving it and that the applicable standard of proof is that referred to in s 13.2 of the Criminal Code. That section provides:
13.2 Standard of proof - prosecution
(1) A legal burden of proof on the prosecution must be discharged beyond reasonable doubt.
(2) Subsection (1) does not apply if the law creating the offence specifies a different standard of proof.
28 Further, Mr Saric submitted that there is nothing in the Act that affects the operation of this section and the standard of proof which the Commonwealth must meet in negativing a defence under s 10.1 or s 10.3 was beyond reasonable doubt. He also submitted the words of s 4A of the Act, “Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against this Act”, ought to be given their ordinary meaning and should not be read down such that s 13.2 applies in determining whether the Commonwealth had excluded his defences. He sought to support that submission by identifying that s 229(1) was an offence provision and one of absolute liability, the penalty for which was severe and which might also lead to forfeiture of property. That being so, he argued, the section ought to be strictly construed.
29 Mr Saric’s submissions in this regard ought not to be accepted. His action is a civil matter involving a dispute between himself and the Commonwealth as to whether his vessel was forfeited. There is no doubt that the circumstances of the forfeiture depend upon the Commonwealth establishing the existence of criminal conduct, but that occurs in the context of civil proceedings. There is no actual prosecution within the meaning of s 13.2 of the Criminal Code and Mr Saric was not, as a result of these proceedings, ever exposed to the imposition of criminal sanctions. These proceedings did not imperil his liberty or expose him to a fine or pecuniary penalty.
30 It is now well established in this country that where proof of criminal conduct is required for the purposes of establishing an issue in civil proceedings, the relevant standard of proof is the balance of probabilities: Helton v Allen (1940) 63 CLR 691; Rejfek v McElroy (1965) 112 CLR 517 at 521 - 522. The most recent statement of the rule from the High Court appears in reasons of the plurality (Mason CJ, Brennan, Deane and Gaudron JJ) in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 to the following effect:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved …"
31 In Tran v The Commonwealth Rares and Besanko JJ also considered the standard of proof in relation to issues arising with respect to forfeiture of a vessel involved in the contravention of the Act. The provisions there in question were not all identical to those relevant to this case, although their Honours’ explanation of the applicable standard of proof is pertinent. At 89  their Honours said:
Parliament may provide for forfeiture of property to occur only upon conviction of a criminal offence and judicial order. However, it is open to Parliament to provide for the automatic forfeiture of property upon the commission of an offence, whether or not a conviction is recorded, or a prosecution instituted. The forfeiture provisions in the Migration Act are of the latter type, subject to the fact that the Migration Act uses the word contravention not the word offence. In such a case, it may fall to a civil court to determine whether an offence has been committed or a contravention has occurred. That might be because the procedure in the forfeiture regime has been adopted or because the owner has taken civil proceedings to vindicate his property rights. Again, this case falls into the latter category.
32 In the case before the Court the forfeiture was based on the contravention of the Act not a conviction for contravention. In relation to the standard of proof to be applied in such circumstances their Honours said at 81 :
Thus, if the Commonwealth had established before the primary judge, on the balance of probabilities in accordance with s 140 of the Evidence Act 1995 (Cth), that the appellant or anyone else on his ship had contravened s 232A or one of the other provisions of Div 12 on which it relied, it would have established a contravention of the Migration Act. That would have enlivened the automatic forfeiture provision in s 261A. The acquittal of the appellant, of itself, did not deny the possibility that in civil proceedings that he could be proved to have committed an offence - ie that he had contravened that Act. Such a course is generally open in civil proceedings, including, as was the position in Helton v Allen (1940) 63 CLR 691, proving that the defendant had murdered the deceased despite his acquittal on his criminal trial of that charge. The allegation of criminality in civil proceedings needs only to be proved on the civil standard of the balance of probabilities: Rejfek v McElroy (1965) 112 CLR 517. However, here the contravention to be proved is one that would have amounted to a crime, and very serious one, since s 232A carried a maximum penalty of 20 years imprisonment. Thus, the Court would pay close attention to the requirements of s 140(2) of the Evidence Act in arriving at the requisite state of satisfaction, on the balance of probabilities, that the appellant, or another voyager on his ship, committed such a crime: see Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 at - per Weinberg, Bennett JJ and myself.
33 In light of the above, it is not possible to accept Mr Saric’s submission that the Commonwealth must negate the existence of any defences raised by him beyond reasonable doubt. For the purposes of establishing a contravention of s 229, including the negation of any defences raised, the Commonwealth is only required to demonstrate the relevant matters on the balance of probabilities. That said, in accordance with s 140 of the Evidence Act, in determining whether the standard has been met, the Court must take into account the nature of the defence and the circumstances in which it is raised in ascertaining whether it has been excluded on the balance of probabilities.
Establishment of the contravention of s 229
34 Mr Saric conceded that, subject to the existence of various defences, the provisions of s 229(1) of the Act were contravened. Whilst that concession was properly made, it is nevertheless appropriate to consider the evidence adduced given the Commonwealth was required to establish each positive and negative element of the offence.
Mr Saric was the master and owner of the vessel
35 There was no doubt that, for the purposes of s 229(1), Mr Saric was both the owner and the master of Exodus when it entered Australia. In his affidavit sworn 17 April 2018 at  he said that he was the “owner of the vessel and the master of the vessel” and he was referring to the occasion on which the vessel entered Australian waters. Indeed, that is a reiteration of the statement in the s 261F claim form which he completed for the purposes of seeking recovery of his vessel. There, he claimed that he was “the owner of the vessel and the person who had possession, custody or control of the vessel immediately before it was seized”. That comment was confirmatory of the statement Mr Saric made to the ABF officer, Tracey Emery, during a recorded interview on 19 June 2017 in which he said words to the effect that he was the master and owner of Exodus.
The vessel brought non-citizens to Australia
36 Similarly, Mr Saric’s own evidence confirms Exodus brought himself and Mr Bonacic to Australia. Relevantly, that event occurred after 1 November 1979 as required by s 229(1). In his affidavit, Mr Saric deposed that when he arrived on 19 June 2017 on board Exodus, the only other person onboard was his friend and fellow crew member, Mr Bonacic. He deposed that he had sailed with Mr Bonacic from Croatia, via Panama.
37 The evidence of the ABF officers was to the same effect. About 12.20pm on Monday, 19 June 2017, Exodus entered the Gold Coast seaway and was intercepted by ABF Regional Command Queensland officers, David Jones and Paul Flanagan. Two persons were observed to be on the vessel and they came to be known to the ABF officers as Mr Saric and Mr Bonacic.
38 The evidence of ABF officer Whitney was that after the conclusion of their interview, each of Mr Saric and Mr Bonacic produced a Republic of Croatia passport and confirmed that they were the owners of those passports. That was confirmed by Officer Whitney. Each of Mr Saric and Mr Bonacic made statements to Mr Whitney that they were not Australian citizens and neither of them produced an Australian passport. Mr Saric confirmed this during his record of interview. Similarly, in another interview, Mr Bonacic made a statement to the effect that he did not claim to hold Australian citizenship. The admission by each of Mr Saric and Mr Bonacic that they were not Australian citizens, but were citizens of Croatia, was reiterated on a number of occasions.
39 The evidence established that each Mr Saric and Mr Bonacic were “non-citizens” within the meaning of that expression as used in the Act.
Mr Saric and Mr Bonacic were not, when entering Australia, in possession of evidence of a visa that was in effect and permitted them to travel to and enter Australia – s 229(1)(a)
40 The point in time at which it must be ascertained whether the non-citizens were in possession of evidence of holding a relevant visa is “when entering Australia”. The expression “enter Australia” in relation to a person means when they enter the migration zone: s 5(1) of the Act. Here, that means entering into a port and, in particular, a proclaimed port, being a port appointed under s 15 of the Customs Act 1901 (Cth). The Port of Brisbane has been, and was at all relevant times, so appointed under that Act. That is established by a “Customs Act 1901 notice under s 15, Port Appointment, Appointment Number 2528” which was notified in the Commonwealth Gazette No GN27, 11 July 2012. The limits of the Port of Brisbane for the purposes of the current proceedings is the line drawn from the southern extremity of Porpoise Point to a point on Nerang Head on the mainland (latitude 27°, 56 inches, 06 south, longitude 153°, 26 inches, 00 east), being the entry to the Gold Coast seaway.
41 For the purposes of the issues under discussion, the concept of a “visa” is, pursuant to s 29(1) of the Act, a permission granted by the Minister for a non-citizen to either travel to and enter Australia, or remain in Australia, or both.
42 The evidence before the Court conclusively established that, when entering the migration zone by passing through the Gold Coast seaway, neither Mr Saric nor Mr Bonacic were in possession of a visa that was in effect and permitted them to travel to and enter Australia, or to remain here. That being so, they could not have been in possession of evidence of such a visa. ABF Officer Whitney deposed in his affidavit that after the record of interview, Mr Saric said to him words to the effect that he did not have a visa for Australia, he was European and he thought that Europeans did not need a visa to travel to Australia. Similarly, Mr Bonacic was asked whether he had a visa for Australia, to which he responded “no”. Neither Mr Saric nor Mr Bonacic produced a visa to any ABF officer. In a statement made during an interview Mr Saric said he did not have a visa to come to Australia. In an interview between Mr Bonacic and ABF Officer Rowlinds, Mr Bonacic also made statements to the effect that he did not claim to hold a visa or to have applied for a visa in Australia.
43 It follows that the Commonwealth satisfied the requirements of s 229(1)(a).
Neither Mr Saric nor Mr Bonacic held a “special purpose visa” – s 229(1)(b)
44 Neither Mr Saric nor Mr Bonacic held a “special purpose visa”. Again, it is apparent neither of them were entitled to a special purpose visa under s 229(1)(b). Neither fulfilled any of the criteria prescribed under reg 2.40 of the Migration Regulations 1994 (Cth) and, indeed, neither of them suggested the same. Further, during the course of a removal planning interview, Mr Bonacic said words to the effect that he did not claim to hold such a visa. Similarly, Mr Saric, during the course of his removal planning interview, also said that he did not claim to hold such a visa.
45 In the circumstances the Court can be satisfied that neither Mr Saric nor Mr Bonacic were the holders of a “special purpose visa”.
Mr Saric and Mr Bonacic were also not eligible for a special category visa – s 229(1)(c)
46 Similarly, neither Mr Saric nor Mr Bonacic, when entering Australia, were eligible for a “special category visa” pursuant to s 229(1)(c) of the Act. That provision applies to New Zealand citizens who hold a New Zealand passport in force and who present to a migration officer. The evidence before the Court was clear that neither Mr Saric nor Mr Bonacic produced a New Zealand passport. They claimed to be travelling on Croatian passports and they only claimed to be citizens of Croatia.
Mr Saric and Mr Bonacic did not hold enforcement visas – s 229(1)(d)
47 The Commonwealth has also excluded the possibility that Mr Saric and Mr Bonacic held an enforcement visa when they entered Australia. An “enforcement visa” has the meaning given to it by s 38A of the Act and is a class of temporary visa which is granted in aid of law enforcement activities either involving non-citizens in relation to fisheries or environmental protection legislation. In this case, neither Mr Saric nor Mr Bonacic were persons who might receive an enforcement visa. The entry of Exodus into Australia was not due to it being detained by or under the command of any officer of the Department or any Commonwealth entity and, further, was not pursuant to the exercise of any power of an officer of the Department or any other Commonwealth entity. Neither Mr Saric nor Mr Bonacic were brought into the migration zone by an officer under Division 7 or Division 8 of Part 3 of the Maritime Powers Act 2013 (Cth). The evidence of Mr Saric in relation to their entry into Australia was that, whilst an Australian surveillance plane flew over the vessel when they were approximately three days and about 550 nautical miles from Australia, they had no other contact with Australian authorities before their arrival in Australia when the vessel was boarded. The boarding of the vessel occurred after it had entered the Gold Coast seaway and migration zone. If confirmatory evidence was needed, the Department’s databases record that neither Mr Saric nor Mr Bonacic held any visa upon their arrival on 19 June 2017.
48 It follows that the Commonwealth has established that s 229(1)(d) was satisfied.
Mr Saric and Mr Bonacic were persons to whom s 42(1) applies – s 229(1)(e)
49 Section 42 of the Act specifies the circumstances in which it is essential for a person to have a visa to travel to Australia. That section provides:
(1) Subject to subsections (2), (2A) and (3), a non-citizen must not travel to Australia without a visa that is in effect.
50 There does not appear to be any doubt that the point in time for determining this element is when the non-citizen “travels to Australia”. In Tran, Besanko J held the words “travel to Australia”, meant “to travel to the territorial sea and coastal waters of Australia” and that includes entering Australia (at 103 ). Similarly, Rares J (at 75 ), whilst discussing the term “travel”, remarked:
The fact that the person diverged from his or her journey from the intended destination does not mean they did not travel to Australia before they arrived here.
51 It follows the question is whether, when Mr Saric and Mr Bonacic travelled to Australia, including when they entered Australia, they were without a visa that was in effect? The evidence concerning this issue is referred to above and both Mr Saric and Mr Bonacic admitted that they were not in possession of a visa to enter Australia at any time. It follows that, when they travelled to Australia they were both “non-citizens” without a visa that was in effect. That being so, the Commonwealth established, subject to ss 42(2), 42(2A) or 42(3), they were persons to whom s 42(1) of the Act applies.
52 It follows that, subject to satisfaction of the matters referred to in s 42(2), (2A) and (3), the matter referred to in s 229(1)(e) was established by the Commonwealth.
Neither Mr Saric nor Mr Bonacic were an allowed inhabitant of the protected zone travelling to a protected area in connection with traditional activities – s 42(2)
53 There exists an exception pursuant to s 42(2) of the Act which provides that s 42(1) does not apply to an allowed inhabitant of the protected zone travelling to a protected area in connection with traditional activities. In this case, this section clearly does not apply because Mr Saric and Mr Bonacic are not citizens of Papua New Guinea, nor a traditional inhabitant who lived in a protected zone (in the region of the Torres Strait) or the adjacent coastal area of Papua New Guinea. Nor were they travelling to a protected zone because they were not travelling in the vicinity of the protected zone and they were not travelling in connection with “traditional activities”. Mr Saric and Mr Bonacic only claimed to be citizens of Croatia and that was their only place of residence. There is no suggestion from the material that Exodus was travelling towards, or near to, any protected area or was travelling in connection with “traditional activities”. Mr Saric and Mr Bonacic were engaged in an around-the-world voyage for their own leisure. At the time of their entry into Australia they were travelling to Southport, Queensland and the purpose of that voyage was to effect repairs to Exodus and reprovision it.
Neither Mr Saric nor Mr Bonacic were citizens of New Zealand who travelled to Australia and held and produced a New Zealand passport that was in force – s 42(2A)(a)
54 This section, s 42(2A)(a), creates a further exception to the requirement that a visa is essential to travel to Australia. It applies for the benefit of New Zealand citizens who hold and produce a New Zealand passport that is in force. Neither Mr Saric nor Mr Bonacic are persons who come within this exception. Each of them only claimed to be citizens of Croatia and neither of them were able to produce a New Zealand passport.
Neither Mr Saric nor Mr Bonacic were brought to the migration zone by an officer exercising the power to detain an aircraft under s 245F(9) of the Act – s 42(2A)(c)
55 This subsection relates to an exception which is applicable where an aircraft has landed in Australia for boarding as a result of a request made by a Commander of a Commonwealth aircraft under s 245E. Under that section Commonwealth officers have the power to bring persons on that aircraft into the migration zone. Clearly, this section has no relevance to the circumstances of the present case.
Neither Mr Saric nor Mr Bonacic were brought to the migration zone by a maritime officer exercising power under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013 (Cth) – s 42(2A)(c)
56 A further exception to the requirement that a visa is essential to travel to Australia is created by s 42(2A)(c)(i) and (ii). One such exception applies to a non-citizen who is brought into the migration zone under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013 (Cth). Again, it is pellucid that this exception does not apply. Mr Saric brought himself and Mr Bonacic into Australia by navigating Exodus through the Gold Coast seaway. The vessel was only intercepted upon its arrival into Southport and after it had passed through the seaway. It was not suggested by Mr Bonacic or Mr Saric that this exception applied and the Commonwealth has negated its application in this case.
Neither Mr Saric nor Mr Bonacic were brought to Australia under s 198B – s 42(2A)(ca)
57 Section 42(2A)(ca) of the Act creates a further exception to the requirement that a visa is essential to travel to Australia when a non-citizen is brought here under s 198B. That latter section provides for an officer to bring “transitory persons” to Australia for a temporary purpose. The main category of transitory persons is defined by s 5(1) of the Act as being persons who have been taken to another country under the present regional processing regime or its predecessors. Again, neither Mr Saric nor Mr Bonacic were persons to whom this exception applied. The evidence of their movements from Panama to Australia is clear and it is apparent that the first direct contact they had with the Australian Border Force Authorities was after they had entered the Gold Coast seaway and were in the Australian migration zone.
Neither Mr Saric nor Mr Bonacic had previously been removed from Australia under s 198 – s 42(2A)(d) and (e)
58 The exceptions contained in subs 42(2A)(d) and (e) apply to people who have been removed from Australia to another country but have been refused entry in that other country. There is no need to set out the subsection in full. For present purposes only a person who has previously entered Australia is capable of being removed from Australia. In this respect Mr Saric and Mr Bonacic informed ABF Officer Whitney after the conclusion of the records of interview, that they had not previously been to Australia. Mr Bonacic subsequently reiterated that to ABF Officer Rowlinds. The accuracy of these admissions from Mr Saric and Mr Bonacic were confirmed by the Department’s records which established that neither Mr Saric nor Mr Bonacic had any movements in Australia recorded prior to their arrival on 19 June 2017.
Neither Mr Saric nor Mr Bonacic were permitted by regulation to travel to Australia without a visa that is in effect – s 42(3)
59 The last relevant exception to the general rule is created by s 42(3). That section provides that the regulations may permit a specified non-citizen, or a non-citizen in a specified class, to travel to Australia without a visa that is in effect. However, the only regulatory provision relating to s 42(3) concerns New Zealanders who produce New Zealand passports that are in force on their arrival in Australia. That is not relevant in this matter.
Conclusion on the application of s 42
60 It follows that none of the exceptions provided in s 42 apply to Mr Saric or Mr Bonacic. It also follows that, for the purposes of s 229(1), s 42 applied to both of them and s 229(1)(e) was shown by the Commonwealth to have been satisfied.
The Commonwealth has established the elements of s 229(1)
61 The consequence of the above is that the Commonwealth has established that, subject to the existence of any relevant defence, Mr Saric contravened s 229(1) in that he was the owner and master of a vessel on which non-citizens were brought into Australia on or after 1 November 1979 and when entering Australia the non-citizens satisfied the requirements in subsections (1)(a) – (e). It also follows, subject to there being a defence, the vessel, Exodus, was used or involved in a contravention of the Act within the meaning of s 261A(1)(a) because it was involved in the bringing or coming to Australia of one or more persons who were, or upon entry to Australia became, unlawful non-citizens or the entry or proposed entry into Australia of one or more such persons.
Whether any defence under s 229 can be sustained?
62 It is now appropriate to turn to the question of whether any defences under s 229 exist so as to exculpate Mr Saric. As indicated above, there was no dispute between the parties that, in relation to defences under s 229(5) or (5A), Mr Saric carried both the evidential and legal burden. In the latter respect s 229(6) specifically imposes that legal burden on the defendant.
Defences under s 229(5) of the Act
63 Section 229(5) of the Act provides a number of defences to a prosecution for an offence against subs (1). Of particular relevance is subs (c). The chapeaux to subs (c) and subs (c) itself are as follows:
It is a defence to a prosecution for an offence against subsection (1) in relation to the bringing of a non-citizen into Australia on a vessel if it is established:
(c) that the vessel entered Australia from overseas only because of:
(ii) stress of weather; or
(iii) other circumstances beyond the control of the master.
64 The Commonwealth submitted that a pivotal consideration in relation to this defence was the identification of the connection between the liability found in s 229(1) and the exculpatory operation of subs (5). It submitted the gravamen of the offence is the bringing into Australia of the non-citizen on the relevant vessel. Emphasis was placed on the word “brought” in subs (1) and, the word “bringing” in subs (5). It further submitted that, whilst subs (5)(c) refers to the occasion when the vessel entered Australia, it is the “bringing into” Australia which must be considered and that is a lengthier and broader process than merely crossing into the migration zone. It submitted that the conduct from the point when and where the bringing of the non-citizen into Australia commenced must be considered. In this respect it argued the “bringing in” commenced at a point somewhere between Niue and Tonga in the Pacific when Mr Saric first determined that the vessel and its crew would be brought to Australia. That was some 2,100 nautical miles from Southport and at a time when he had many options for undertaking repairs and provisioning other than landing in Australia. It followed, so the argument went, that any exculpatory provisions must be applied in that context.
65 The Commonwealth also submitted the argument advanced by Mr Saric, that all that ought to be considered is the point in time and place immediately prior to entering into the migration zone, is fraught with difficulty. It said acceptance of that construction of the Act would lead to absurdities because persons desirous of entering Australia without a valid visa could do so by positioning themselves in a vessel upon the sea just outside the migration zone and wait for inclement weather. On arrival they could argue they were compelled to enter the migration zone and claim the protection of s 229(5).
66 Mr Saric’s submission was indeed that s 229(5)(c) is concerned only with the circumstances existing immediately prior to the point in time when a vessel entered Australia; being entry into the migration zone. It was submitted consideration only need be given to the prevailing weather conditions and circumstances of the vessel at that point in time and in that place such that matters preceding the attendance of the vessel just outside the migration zone can and should be ignored. In this respect the submission made by the applicant was:
It is not to the point that the applicant’s previous choices and/or level of competence may have contributed to him being at the place and time at which the weather conditions required him to enter port. The question for determination under s.229(5)(c)(ii) is whether the entry from that point and at that time was because of the stress of weather. The answer is clearly that it was.
67 It is true that the defence in s 229(5)(c) relates to the offence of bringing a non-citizen into Australia and a consideration of the defence requires an examination of the occasion of the entering of the vessel into the Australian migration zone. However, it does not follow that consideration need only be given to the circumstances and events existing at that point in time. The reason for that broader consideration may well be, as the Commonwealth submitted, because the offence occurs when a non-citizen “is brought into” Australia which connotes the whole of the activity of bringing a person to this country. That construction is coherent with the defence in s 229(5)(c) which necessitates the identification of a specific causal nexus between the vessel entering Australia and the subsections of sub-paragraph (c). That subsection uses the words “only because of” such that the defence operates if the only reason for the vessel entering Australia is one of the three identified. That necessitates a consideration of the “causes in fact” of the vessel crossing into the migration zone and that necessarily includes an examination of those events leading up to the actual entry. However, the scope and extent of the antecedent matters which require consideration need to be limited in some rational sense. Were it otherwise the whole history of the person committing the offence could be seen as having some causative impact on the entry into Australia. In this respect guidance can be taken from the issue to which the exculpatory defence in sub-paragraph (5)(c) relates.
68 The offence is committed by the master or owner of a vessel on which a non-citizen is “brought into” Australia , and as the chapeau of s 229(5) indicates, it is a defence to a prosecution for an offence in relation to “the bringing of a non-citizen into Australia” if, inter alia, the matters in sub-paragraph (c) are established. In this way, the consideration of the antecedent circumstances is limited to those events and occurrences which were part of the process of bringing the non-citizen to Australia. To put it another way, a transition across the frontier into the migration zone could not be “only because of stress of weather” or “other circumstances beyond the control of the master”, if the voyage to the frontier of the migration zone was for the purposes of bringing the non-citizen into the zone. The bringing of the vessel to the frontier of the migration zone constitutes part of the cause, or one of the causes, of the vessel entering the migration zone. It follows a necessary consideration is ascertaining the intention or purpose for which the vessel on which the non-citizen was travelling came to be at the frontier of the migration zone.
The circumstances of the voyage to Australia
69 Mr Saric, together with a Mr Bonacic and a Mr Popovic, set sail in Exodus from Dubrovnik in Croatia on 23 November 2016. During the course of his evidence Mr Saric claimed he had plans to circumnavigate the globe which involved crossing the Mediterranean Sea, stopping at Gibraltar, the Canary Islands, St Lucia in the Caribbean, to Montenegro, to the Panama Canal, then on to the Marquesas Islands, to Indonesia, to the Red Sea and back to Croatia. As is evident, given the size of Exodus, at only 12.9 metres, it is most unlikely that they could have been the only stops which Mr Saric might have contemplated. Nevertheless, he claims that was his generally intended route.
70 The vessel was well equipped with numerous communication devices including a satellite phone, a VHF radio, four or five mobile telephones, a tablet device which could access the internet and a ship’s computer which was also connected to the internet. These various devices provided Mr Saric with substantial communication facilities at all times and he was constantly in a position to request assistance if and when that was needed. This capability is particularly relevant to the issue of whether he had the ability to pull into a port at a Pacific Island to effect repairs and reprovision if he so desired.
71 The voyage did not begin well. Shortly after departing Dubrovnik, Mr Saric encountered a thunderstorm and required assistance from the Italian coastguard. Apparently, a strong gust of wind caused a steering rope to fall into the water where it became entangled in the rudder rendering the vessel almost uncontrollable. Mr Saric issued a Pan-Pan (a limited distress call) with the consequence that the Port Authority of Reggio Calabira responded and sent a patrol boat to assist. The Exodus was escorted into the port where a number of repairs were undertaken, including the replacement of the mast pulleys, the rudder and the engine propeller. Thereafter, the voyage continued and Mr Saric headed Exodus towards Ibiza.
72 At Ibiza, Mr Popovic left the vessel and returned to Croatia. He had only ever intended to partake of the voyage for a short period of time. After leaving that port another rope became entangled in the boat’s propeller with the consequence that Mr Saric made for Alicante in Spain. He utilised his VHF radio to seek assistance and he was, again, towed into port.
73 After exiting the Mediterranean, Exodus turned south around the north western part of Africa. However, shortly thereafter the vessel pulled into port at Las Palmas on Grancanaria off the coast of Morocco to undertake repairs and maintenance and to reprovision. The repairs necessitated the ordering of some replacement parts and the voyage was delayed for some three weeks. The departure from Las Palmas was further delayed because Mr Saric had misplaced his clearance papers which authorised him to leave the port. Subsequently, he departed Las Palmas and set sail for the Caribbean. During the course of this voyage another small rope became entangled in the propeller and the bowsprit developed a crack. The bowsprit was repaired on the island of St Lucia in the Caribbean. From St Lucia, Exodus sailed to the island of Martinique because the port and docking fees there were cheaper. It is not irrelevant that Mr Saric was able to inform himself of the relative cost of these expenses by use of the internet on his vessel. The import of this was that the vessel was well equipped such that he was able to inform himself of almost anything he wanted in relation to his voyage. In particular, he could inform himself of immigration entry requirements for any nation he visited if he so desired.
74 From Martinique, Mr Saric sailed Exodus to the Panama Canal. There, he encountered some difficulties and engaged the assistance of an agent to assist him with the paperwork which would enable Exodus to pass through the canal. He ascertained the identity of the agent and contacted him through the internet facilities on board. The agent undertook all the paperwork for Mr Saric, including obtaining the appropriate permits which allowed him to pass through the canal.
75 A short time after exiting the Panama Canal, Mr Saric accidently cut his finger quite seriously. Mr Bonacic called 911 on one of the mobile phones and spoke to emergency services for some time. The vessel returned to Panama where Mr Saric received medical attention.
76 Mr Saric gave evidence that, whilst in Panama City, he provisioned the vessel for two months for the trip to Indonesia. He said that it was cheaper to provision there than at the Marquesas Islands, which was his next intended port of call.
77 Having left Panama City on 28 April 2017, it took the vessel close to a month to reach the vicinity of the Marquesas Islands. On 23 May 2017, and shortly prior to reaching those islands, Exodus was stopped and detained by a French Navy vessel. Mr Saric says that the French Navy conducted an extensive search of his vessel, a consequence of which was that a substantial portion of his provisions were destroyed. In his affidavit he said the Navy officers were on board and in control of Exodus for about 12 or 13 hours. He claimed that they were “searching wildly, bursting garbage bags, throwing garbage in our food and water supplies, and trampling things thrown about the boat”. He also alleged the French Navy moved the vessel’s refrigerator with the consequence that after a couple of days it stopped working and he was required to dispose of a lot of food. The effect of this, he claimed, was that about half of his remaining provisions were destroyed.
78 It was put to Mr Saric that, on his own assertions, the result of the encounter with the French Navy at the Marquesas Islands was that he was left with only two weeks of provisions. Given his evidence as to the amount of provisions he had taken on in Panama City, what he had used in the month to get to the Marquesas Islands and what the French Navy had destroyed, that was an entirely logical proposition. Although he denied this was the case, his responses to this line of questioning were somewhat confused. Even taking into account the language difficulties, it is apparent that Mr Saric dissembled or obfuscated about the quantity of food he had at that stage of the voyage. The import of this issue is that, without stopping, it was most unlikely Exodus could have made Indonesia from the Marquesas Islands. That conclusion was supported by the uncontested fact that there was very little food left on Exodus by the time it arrived in Southport.
79 The Commonwealth disputed Mr Saric’s account of his interaction with the French Navy and referred to Mr Saric having signed a declaration which indicated he was satisfied with the conduct of the search of his vessel. Whilst that document cannot be ignored, not much weight can be given to it in the circumstances under which it was signed. It should be noted that the French Navy is not a party to these proceedings and is not, here, in a position to defend the allegations. The only direct evidence available on this topic was that of Mr Saric and no substantial reason has been shown as to why it ought not be accepted. It is relevant that the evidence about the destruction of provisions by the French Navy is consistent with the amount of food on board Exodus when it arrived in Australia. That said, acceptance of Mr Saric’s evidence as to the amount of damage caused to his provisions by the French Navy, tends to support the Commonwealth’s case.
80 Subsequent to the encounter with the French Navy, Mr Saric determined not to stop at the Marquesas Islands as he had previously intended. However, around this time various additional difficulties arose in relation to the operation of the vessel. They included the fridge ceasing to work as well as the computer tripping and turning itself off. Mr Saric also said a bilge pump stopped working, water was entering the vessel’s hull from a leaking pipe, a second bilge pump ceased working and there were difficulties with the vessel’s electronics.
81 Mr Saric claimed that a particular difficulty encountered by him at this time was that he was unable to locate certain electronic navigation charts, called Navionics charts, for the Pacific Islands on the vessel’s computer. These charts are commercially acquired electronic shipping charts which provide detailed maps with depth indicators for maritime voyages. The detail was such that they could have been used by Mr Saric to enter any port in any of the Pacific Island nations. Mr Saric claimed that, in the absence of these charts, he was unable to take Exodus to any Pacific Island port to effect repairs.
82 It should be observed that Mr Saric’s reference in his cross-examinations to the bilge pumps ceasing to operate properly after the encounter with the French Navy was something which he had not mentioned previously. He had not mentioned it to the Border Force Authorities in his interviews, nor had he mentioned it in his affidavit filed in this action. That did his credibility no good at all. It was a significant matter which is unlikely to be easily forgotten.
83 Mr Saric also claimed that shortly after his encounter with the French Navy the desalination system ceased working, although in the course of cross-examination he could not remember exactly when that was.
84 According to Mr Saric, it was around this point in his voyage he determined to sail for Australia for the purposes of undertaking repairs. Under cross-examination he asserted he could not go to port in the Pacific Islands because he was not in possession of the appropriate Navionics charts. That explanation was somewhat disingenuous. It was readily apparent he had access to suitable communications via VHF radio, satellite phone and the internet by which he could have contacted any port authority in any of the Pacific Islands in his locality in order to request assistance to enter a port. It is apparent that he chose not to do this and his responses to these issues under cross-examination were unconvincing. It is also apparent that his access to the internet would have provided myriad opportunities to acquire information about the ports of the Pacific Island nations.
85 Further, Mr Saric had access to a number of other charts and information concerning the waters around the Pacific Islands. Although he initially claimed that these were not of sufficient quality for his purposes, under cross-examination he acknowledged that by use of his communication facilities he could have obtained all of the necessary information to allow him to enter any port. That was a somewhat telling admission.
86 On the assumption the difficulties being experienced on board Exodus were as stated by Mr Saric, the reasonableness of stopping at one of the Pacific Island ports was undoubted. Even if the onboard computer had lost some relevant Navionics charts, Mr Saric’s ability to communicate with port authorities meant there was no real impediment to him entering one of those ports. Ultimately, it is clear Mr Saric was not disabled from entering the ports of any of the Pacific Island nations in the vicinity of the path of his voyage from around the Marquesas Islands to Southport and he ultimately accepted as much.
87 Shortly after the encounter with the French Navy it is apparent Exodus was in need of repair and its provisions were low. Although it could have made port at one of the Pacific Islands, whether that be Tonga, Fiji, Vanuatu, New Caledonia or some other island, Mr Saric preferred to make for Australia. As the content of his affidavit discloses, he was of the belief that he would encounter delays and additional costs if he were to pull into the Pacific Islands for repairs and there may not be people of sufficient skills immediately on hand to repair the vessel. He believed the repairs would be cheaper and faster if carried out in Australia. Although Mr Saric said he did not believe there were people on the Pacific Islands with sufficient skills to repair the vessel, none of the damage was extensive and indeed, the islands of Fiji and New Caledonia are, as is well known, well provided for in respect of maritime matters. In any event, it was a matter of choice that Mr Saric determined to head for Australia. Whilst he could have made port in one of the Pacific Islands, it was merely that it was more advantageous to him, or so he thought, to head for Australia. He said in the course of his evidence that had been told by other sailors, and believed, that it was easy to find qualified masters to effect repairs and to buy the items for those repairs in Australia.
88 Although there was a significant amount of cross-examination as to the precise point in time when Mr Saric determined to sail Exodus to Australia, not a lot turns on this. He asserted that he made the decision somewhere between Nieu and Tonga whereas it was put to him it was, in fact, shortly after his encounter with the French Navy, being somewhere near the Marquesas Islands. Ultimately, precisely where the decision was made does not matter. Were it to be necessary to decide, I would have concluded that the evidence strongly points to a decision by Mr Saric to travel to Australia from about the areas of the Marquesas Islands. At around this time he had limited provisions and they were insufficient to enable him to reach Indonesia. He had determined not to stop at the Marquesas Islands where he might have replenished his stores. On the basis of his evidence, there were a number of defects with his vessel which required rectification and he was of the view the necessary work could be undertaken more efficiently and more cheaply in Australia. A report from a Ms Cahalan, a professional yacht racer, marine consultant and lawyer, to which no objection was made, identified the Pacific Island ports which had facilities for sailing provisions and repair, including the preferable ones being Tahiti, Fiji, New Caledonia and Port Moresby. Others included Niue, the Cook Islands and, in particular, the capital, Rarotonga, as well as the Port of Avatiu, Raiatea, Bora Bora and Tonga. Ms Cahalan was not cross examined and her report is credible. Her evidence ought to be accepted.
89 It is also not irrelevant that the route which Exodus took immediately upon leaving the Marquesas Islands was, more or less, directly towards Southport, Australia. Mr Saric’s claimed route from those islands to Indonesia, being south of American Samoa and north of Fiji, was almost immediately departed from. This rather suggests that by then he had abandoned his intention to make for Indonesia if indeed he even held that intention. In this respect I accept the evidence of Dr Badham who studied the path taken by Exodus and expressed the opinion that at no stage from west of the Marquesas Islands (which is well before Niue or Tonga) did it appear that Exodus was heading for Indonesia. The map of the path actually taken by the vessel supports that opinion quite strongly.
90 The only other person who was possibly a party to the deliberations concerning where Exodus should stop for repairs, was Mr Bonacic. It appears that he lives in Croatia and Mr Saric remains friendly with him and in contact with him. He was not called by Mr Saric to give evidence. He would have been able to give evidence by videolink as did Mr Saric. No explanation was provided as to why he was not called. In those circumstances the Court can assume that the testimony of Mr Bonacic would not have assisted Mr Saric’s claim that he was not able to pull into port at one of the Pacific Island nations or that he only decided to head for Australia around Niue or Tonga: Jones v Dunkel (1959) 101 CLR 298.
91 Mr Saric deposed in his affidavit that he had had discussions with sailors from time to time and he believed that, on arrival in Australia, he could obtain a visa for the period of time which he required to undertake repairs without any problem. In effect, his claim was he believed he would be granted a visa on entry and he did not have to acquire one in advance. The advice he claimed to have received was quite erroneous and has no basis. It is not immediately apparent why other sailors would misinform him of the requirements of Australian Migration law
92 I do not accept that Mr Saric was unaware of the Australian visa requirements. His claim in this respect is not credible. At all times he had access to the website, “Noonsite”, which is well known in the sailing community and he was aware of it. It provides a wealth of information to sailors and maritime travellers in relation to countries all over the world, including visa entry requirements and port information. It is also well known that advice about visa entry requirements for most countries, including Australia, is now available on the internet. At all times Mr Saric had access to the Noonsite website and the internet generally and he was able to ascertain the visa requirements to enter Australia. He had used the internet for similar purposes earlier in his voyage. It is incredulous that he believed he might simply obtain a visa on entry to Australia. In reaching this conclusion I am mindful of the fact that he was an experienced mariner and had made a number of trans-atlantic crossings to the Caribbean.
The conditions encountered by Exodus
93 Although Mr Saric claimed the bowsprit of the vessel sustained damaged near the Marquesas Islands which significantly impeded his sailing, the evidence before the Court tends to discount his assertion as to sequelae of the damage. An assessment has been undertaken of the speed and distance which Exodus covered from Panama on 28 April 2017 to Southport on 19 June 2017. The information for the assessment was taken from the vessel’s navigation devices which plotted the GPS data points of its voyage towards Australia. Although there is some indication that on that part of the voyage from west of the Marquesas Islands, from about 28 May, the vessel proceeded with relatively low speeds on some days, on most days it made good time and good speed. That was effectively admitted by Mr Saric. On the other hand, although Exodus made relatively good speed toward Australia with both current and wind assistance, the inability to utilise all available sails would have put it at the mercy of the conditions to some degree. Nevertheless, if the defects with Exodus and its equipment were as severe as Mr Saric asserted, it would be more likely he would have made for a Pacific Island port to undertake repairs so that he could ensure the vessel would sail in the direction he wanted it to go. In the circumstances, the Commonwealth’s submission that Mr Saric overstated the degree to which he was unable to steer Exodus on this part of his voyage should be accepted.
94 Mr Saric deposed that about two or three days prior to reaching Southport he encountered severe weather brought about by a tropical low pressure system. He claimed the wind speed increased as did the height of the seas. He said this created some urgency to reach a safe port and he attempted to contact the Marina Mirage in the hope of securing berthing facilities for Exodus. He further said he was informed there were no spare berths and he then tried a second marina. He claimed he was told there was no available berth for his vessel at this second marina and it was not possible to enter the marina because of the bad weather at the time. He added that he was not told to call the Australian Border Force.
95 The case advanced by Mr Saric is that the sea conditions which Exodus experienced at around the time it was approaching the Australian coast together with the low level of provisions and Exodus’ state of repair made it necessary to make port at Southport. However, his evidence as to the nature and extent of the inclement weather was somewhat vague. At one point he claimed he did not recall whether it had lasted for one day, two days or three days. He blamed his inability to recall on the fact that, during this time, he had not slept for three days and had not eaten anything because of the rough seas. Although he said that the damage to the vessel had the consequence that he could not sail it properly in the storm, the only damage which actually affected his ability in this respect was the cracked bowsprit. Whilst he made reference to his bilge pumps not working and the entry of water into his boat, it does not appear that the consequences of this hindered his ability to navigate the vessel.
96 Despite Mr Saric’s attempt to emphasise the difficulties he encountered in the weather conditions on his approach to Australia, I conclude that the vessel was not in any situation of peril. It is relevant that, at no time, did Mr Saric seek assistance nor did he seek to confirm his position with any of the coastal authorities. He did not issue a Pan-Pan or a Mayday call. Although he said that his radio may have been damaged by the wind it was apparent that his satellite phone was working at all time as was the internet connection for the vessel. He did not claim he sought to issue any form of distress call.
97 Whilst the vessel may not have been as manoeuvrable as it would have been had the bowsprit not been cracked, nevertheless, it was no more damaged than it was at the time Mr Saric determined to head to Australia. That is to say, whilst defects and damage began to appear after his encounter with the French Navy, from that point in time after he noticed a crack in the bowsprit, no further significant damage occurred which warranted him heading for Australia. When the crack in the bowsprit was noticed he had a number of options to undertake repairs, specifically at several of the Pacific Island nations.
98 Mr Saric asserted that in the two to three days prior to arriving at Southport, Exodus encountered stormy weather including winds of 50 to 60 knots and waves of seven metres and over. I accept that these were estimates made by Mr Saric and that Exodus encountered unpleasant weather on its approach to Australia. However, it would appear that the weather was not as dire as Mr Saric recalls it. Dr Badham, an expert engaged by the Commonwealth, acknowledged that the vessel would have endured two days of “stormy weather” and winds of 35 knots (average) with gusts of 35 to 45 knots. He considered the relevant meteorological data and concluded that the vessel would have encountered the worst conditions on 18 June 2017 when it was approximately 100 to 200 miles off south east Queensland. At that time the wind generated waves from a south westerly direction which met the vessel on its port bow. He considered that this would create “hard” sailing for it. The available data showed south to south west winds of 30 to 40 knots and a 3 to 4 metre “significant wave height”. Whilst a significant wave height of 3 to 4 metres might have a maximum wave height of 6 to 7 metres in some circumstances, Dr Badham did not think that the present circumstances were of that nature. He doubted that the vessel encountered 70 knot winds or waves of 7 metres, even though he acknowledged that the conditions would have been “quite unpleasant” for the two days prior to arriving at Southport.
99 From this it can be accepted that at about the time Exodus entered the Gold Coast seaway on 19 June 2017, it had experienced a couple of days of quite unpleasant weather even though by the time of entry into the seaway it had abated somewhat. At that time the maximum wind gusts were 33 knots.
Are there any available defences under s 229 of the Act?
100 Having outlined the circumstances of the voyage taken by Exodus and, in particular, from around the Marquesas Islands or from Tonga, it remains to ascertain whether any of the defences to, prima facie, the contravention of s 229 of the Act are available.
Section 229(5)(c)(ii) – stress of weather
101 It is a defence to a prosecution for an offence under s 229(1) in relation to the bringing of a non-citizen into Australia on a vessel, if it is established that the vessel entered Australia from overseas “only because of”, inter alia, “stress of weather” (emphasis added).
102 The proper construction of this section necessitates giving effect to the word “only” such that, in its application, consideration must be given to all the factors which caused the entry of the vessel into Australia “from overseas”. Here, it might be accepted that the unpleasant weather encountered by Exodus some 100 to 200 nautical miles from Australia made it desirable for Mr Saric to enter Australia. It might even be said that, given the condition of the vessel and the low level of the provisions, the inclement weather made it more pragmatic to enter Australia. However, in no way could it be said the stress of the weather, if that existed, was the only factor which caused the vessel to enter Australia “from overseas”.
103 The Commonwealth submitted the predominant reason why Exodus entered Australia on 19 June 2017, was that it had been deliberately sailed from, at least the area of Tonga, if not the Marquesas Islands, into Australian territorial waters off the coast in southern Queensland. It asserted Mr Saric, as the captain and the master, made a considered decision at some time between about 27 May and 7 June to sail to Australia and enter port here. He did so for a number of reasons, including that he would be able to undertake repairs at a lower cost and with less delay than if he sought to do that in the Pacific Islands. The fact that the vessel encountered heavy weather on its approach to Australia and, in particular, near the Gold Coast seaway, did not alter the fact that the predominant causes of the vessel entering Australia from overseas was the decision of Mr Saric to sail to Australia and the putting of that decision into effect. It follows that it cannot be said that Exodus entered Australia “only because of …stress of weather”.
104 These submissions made by the Commonwealth should be accepted. They are consistent with the proper interpretation of the defence in s 229(5)(c) as has been set out above. Its concern is the bringing of non-citizens to Australia and the reasons for it. On its correct construction the Court must consider whether the “only” reason which caused the vessel to enter Australia was the stress of weather and, when a vessel has been deliberately brought to Australia, that causative analysis commences from that point in time when it was determined to bring it here. The circumstances immediately prior to entering the migration zone may be particularly relevant in some cases, say where a vessel has lost steering and is blown or drifted into the migration zone, but that is not relevant here.
105 Mr Saric did not advance his case on the basis that stress of weather was the only cause that brought Exodus to Australia from around Tonga or the Marquesas Islands. His case was advanced on the erroneous basis that he only had to establish the compelling circumstances existed at the point of entry. That being so, the evidence advanced by him falls well short of establishing that stress of weather caused him to sail from the mid Pacific to Australia.
106 Even if Mr Saric’s proffered construction of s 229(5)(c) were adopted, there is significant doubt that the circumstances which existed at the relevant time fall within the concept of “stress of weather”. That concept is well known in admiralty and the related area of marine insurance and there did not appear to be any dispute between the parties as to its meaning. In May SS v The King  SCR 374, 381 Lamont J of the Supreme Court of Canada cited the observations of Sir William Scott in The Eleanor (1809) Edwards’ Admiralty Reports 135 at 159-160 concerning the meaning of “stress of weather”:
Real and irresistible distress must be at all times a sufficient passport for human beings under any such application of human laws. But if a party is a false mendicant, if he brings into a port a ship or cargo under a pretence which does not exist, the holding out of such a false cause fixes him with a fraudulent purpose. … Now it must be an urgent distress; it must be something of grave necessity; such as is spoken of in our books, where a ship is said to be driven in by stress of weather. It is not sufficient to say it was done to avoid a little bad weather, or in consequence of foul winds, the danger must be such as to cause apprehension in the mind of an honest and firm man. I do not mean to say that there must be an actual physical necessity existing at the moment; a moral necessity would justify the act, where, for instance, the ship had sustained previous damage, so as to render it dangerous to the lives of the persons on board to prosecute the voyage: Such a case, though there might be no existing storm, would be viewed with tenderness; but there must be at least a moral necessity. Then again, where the party justifies the act upon the plea of distress, it must not be a distress which he has created himself, by putting on board an insufficient quantity of water or of provisions for such a voyage, for there the distress is only a part of the mechanism of the fraud, and cannot be set up in excuse for it; and in the next place the distress must be proved by the claimant in a clear and satisfactory manner.
107 Lamont J considered a number of other authorities in relation to this issue and concluded (at 382-383):
A perusal of the above authorities leads to the conclusion that an entry by a foreign vessel into Canadian waters cannot be justified on the ground of “stress of weather” unless the weather is such as to produce in the mind of a reasonably competent and skilful master, possessing courage and firmness, a well grounded bona fide apprehension that if he remains outside the territorial waters he will put in jeopardy his vessel and cargo. In every case the questions whether the master fairly and honestly on reasonable ground believed it necessary to take shelter, and whether he exercised reasonable skill, competence and courage in the circumstances, are questions of fact for the tribunal whose duty it is to find the facts.
108 As appears from his Honour’s reasons (see also similar reasons delivered in The Ship “Queen City” v The King  SCR 387) the concept of “stress of weather” requires the encountering of severe risk by reason of weather conditions amounting to a grave necessity requiring the contravention of the country’s laws of trade. Moreover, the defence of “distress” cannot be something which the mariner has, himself created, by inadequate provisioning and the like. The necessity must produce in the mind of a skilful mariner a well-grounded apprehension of the loss of the vessel and cargo or of the lives of the crew. There must be an “uncontrollable necessity” which admits no compromise and cannot be resisted.
109 The rationale for the limitation on the excuse of “stress of weather” is pellucid. Were it otherwise the door would be open for the simple circumvention of countries’ trade and immigration laws. Whilst most nations accept the importance of permitted, but otherwise unauthorised, entry in cases of necessity caused by dangerous weather, the scope of the operation of that exception must necessarily be rather narrow. At the least it must be kept in mind that it is a country’s sovereign entitlement to exclude entrants into their territories.
110 Here, on the occasion when Exodus came into the Gold Coast seaway, and therefore into the migration zone, it was not experiencing “stress of weather”. By that time the strong winds had abated and were abating further. The seas were no doubt rough but the evidence does not reach the level of establishing there were dangerous or threatening to life or vessel. Exodus had travelled from at least Tonga in the same condition and, it can be safely concluded, was still capable of navigable sailing in the ocean. It may well be that by the time it reached Southport, the provisions on board were low and that created a form of “necessity” or urgency for it to pull into port. However, such circumstances were a consequence of Mr Saric making by not reprovisioning on one of the Pacific Islands. They were not something which supports the conclusion the vessel was required to enter Australia by “stress of weather”.
111 It follows that it has not been established that the circumstances were such that Exodus was required to enter the Gold Coast seaway by “stress of weather”. Indeed, the evidence established that the substantial reason Exodus and its crew entered Australia was Mr Saric’s decision to effect repairs and reprovision here and putting that decision into effect. It also follows the defence under s 229(5)(c)(ii) has not been established by Mr Saric, or it has been negated by the Commonwealth.
Section 229(5)(c)(iii) – other circumstances beyond the master’s control
112 This subsection provides a defence where the vessel entered Australia from overseas “only because of … other circumstances beyond the control of the master”.
113 In a manner similar to the operation of s 229(5)(c)(ii), the requirement of this section is that the reason for entering Australia from overseas be only because of the identified circumstance. On the findings that have been made, the predominant reason why Exodus entered Australia was because Mr Saric decided to sail to Australia from, at least, Tonga and he put that decision into effect. Mr Saric advanced his defence on the basis that all that was required was that crossing the frontier of the migration zone was caused by the circumstances beyond his control. That was insufficient to raise a defence under this section as properly construed. That being so, it was not raised or established or it has been effectively negated by the Commonwealth.
114 Further, to the extent to which it was submitted the circumstances which necessitated entry into Australia and which were beyond Mr Saric’s control included the need for the undertaking of repairs and/or the lack of provisions, such an argument is not sustainable. Mr Saric might have caused the effecting of repairs to Exodus and the replenishment of provisions to be undertaken at numerous other suitable ports at the several Pacific Island countries. As mentioned in her report, Ms Cahalan identified a number of suitable ports on the route from French Polynesia to Southport which are commonly known to offer sailing provisions and vessel repair facilities. They included Papeete (in Tahiti), Niue, the Cook Islands and, in particular, the capital, Rarotonga, as well as the Port of Avatiu. That evidence was not seriously contested and should be accepted. Mr Saric would have been able to either obtain the nautical information required to navigate into those ports via the internet or have been assisted into them. There he could have repaired his vessel and taken on sufficient provisions so that he could safely continue his voyage to Indonesia without the risk that he could not adequately steer the vessel or would be forced to enter another port due to lack of food and water. It follows that, the circumstance that Exodus needed repairs and provisioning was not a matter beyond the control of the master. Indeed, those circumstances came about by reason of the conduct of the master.
115 Further, as is discussed in more detail below, even if one were to consider the circumstances when Exodus entered the Gold Coast seaway, the entry was not because of circumstances beyond Mr Saric’s control. Putting aside the lack of provisioning and the vessel’s disrepair, the entry of the vessel occurred by the deliberate act of it being navigated into the seaway. Exodus was not disabled and was capable of being navigated, even in the difficult sea conditions. In this sense, it cannot be said that the entry of the vessel was only because of circumstances beyond the control of the master.
116 For each of these several reasons Mr Saric has failed to establish the defence under s 229(5)(c)(iii) or the Commonwealth has negated its availability.
Defences under the Criminal Code
Section 10.1 – intervening conduct or event
117 The applicant submitted he was entitled to rely on a defence to a prosecution under s 229(1) of the Migration Act by reason of s 10.1 of the Criminal Code 1995 (Cth). That section provides:
10.1 Intervening conduct or event
A person is not criminally responsible for an offence that has a physical element to which absolute or strict liability applies if:
(a) the physical element is brought about by another person over whom the person has no control or by a non-human act or event over which the person has no control; and
(b) the person could not reasonably be expected to guard against the bringing about of that physical element.
118 In construing this section it is necessary to keep in mind that s 4.1 of the Criminal Code provides that a “physical element” may be conduct and, in turn, “conduct” means an act, an omission to perform an act or a state of affairs and “engage in conduct” means to do an act or omit to perform an act.
119 As has been discussed above, in relation to the defences under ss 10.1 and 10.3 of the Criminal Code, Mr Saric carried the evidential onus of raising them, whilst the Commonwealth carried the legal onus of negating them. The standard of proof which the Commonwealth must satisfy is the balance of probabilities subject to requirements in Briginshaw v Briginshaw (1938) 60 CLR 336.
120 It was submitted on Mr Saric’s behalf that, in the circumstances of this case, he has a defence to a prosecution under s 229 as the vessel entered Australia by reason of a non-human act or event over which he, the master, had no control and which he could not reasonably be expected to guard against. He submitted that, for the purposes of s 10.1, the physical element, being the entry into Australia, was brought about by the “accumulation of circumstances present at the time and point of entry and operative upon Mr Saric’s mind to the point where he felt he had no choice but to enter port”. The circumstances to which he refers were the prevailing weather at the time and point of entry and the nature and extent of the defects and damage to the vessel.
121 The Commonwealth submitted the physical element of the offence in s 229(1) was, or included, the bringing of a non-citizen into Australia. On behalf of Mr Saric it was submitted the physical act was crossing into the migration zone.
122 The argument before the Court proceeded on the footing that there was only one physical element of the offence in s 229(1). That was probably a correct assumption. It is not likely the offence could be broken down into two elements, the first being the bringing of the non-citizen into Australia and the second being “entering” Australia. The second is a constitutive part of the first.
123 The bringing of the non-citizen into Australia from overseas is a composite action involving all the steps taken in transporting the non-citizen to Australia from overseas. Here, that involved putting into effect Mr Saric’s decision to sail to Australia which was made some time after his engagement with the French Navy. That physical element occurred many days before, and many nautical miles prior to, encountering the subtropical low which generated the unpleasant weather. This composite act was not one over which Mr Saric had no control. Indeed, he was in control of the vessel at all times and he deliberately sailed it into the waters around Australia and into the migration zone. On the view that the physical element of the offence was both the bringing of the non-citizen to Australia and the entering of the migration zone, Mr Saric has not sufficiently raised the defence.
124 Even if it were the case that the act in question was the mere traversing of the frontier into the Australian migration zone, it could not be said that event was “brought about” by a non-human act or event over which Mr Saric had no control. He deliberately sailed the vessel into the Australian migration zone in furtherance of a decision to do so. That is true whether the decision is regarded as one which existed immediately prior to crossing into the migration zone or one which existed at a point in time on his voyage shortly prior to passing Tonga. In this case, at various points in time there were pressures which bore on Mr Saric’s decisions to come to Australia and enter the migration zone, however, he always had the choice and the ability to take alternative action. The situation would be different if the vessel’s steering failed and it was blown or drifted into the migration zone and that could not be prevented. However, that is not this case. The defence in s 10.1 does not, by its terms, apply where the relevant physical act is performed consciously and deliberately.
125 In any event, to the extent to which the circumstances of Exodus required Mr Saric to enter into the Australian migration zone it is, impossible to say he could not reasonably have been expected to guard against them. That is particularly true in relation to the vessel’s state of disrepair which existed during the whole of the voyage from about Tonga. As an experienced sailor, it would have been readily apparent that if he failed to effect repairs in a timely manner and he encountered heavy weather, the vessel may not adequately handle the conditions and thus create circumstances of emergency. He could reasonably be expected to guard against such an eventuality but, in the circumstances of this case, he did not do so. The same can be said of the fact that, by the time he reached the Gold Coast seaway, he was low on provisions. Again, he might have easily reprovisioned the vessel at a Pacific Island had he chosen to do so. Whilst it might have been more expensive and more time consuming to do so and that docking at a port there might have been more expensive because it would have required the assistance of third parties, it cannot be said that it was not a realistic or reasonable option. Indeed, he admitted as much in the course of cross-examination. If the paucity of provisions aboard Exodus contributed to the circumstances of necessity that forced him to enter the migration zone, that was something which it was reasonable to expect Mr Saric would guard against.
126 In relation to finding an alternative port, it is noted Ms Cahalan observed in relation to the circumstances which existed when Exodus was west of the Marquesas Islands:
In my experience a reasonably competent Master would have made port as soon as practicable taking into consideration the damage to the vessel…and in light of the prospect of over 2 weeks sailing time to get to Australia.
I am surprised given the weather conditions between Exodus’ position on 14 June and Southport that Exodus did not make the decision to sail to Noumea to make port given it is a French (EU) protectorate
127 This evidence was not contested and was credible. It would have been prudent and practical for Mr Saric to effect repairs at some time prior to nearing the Australian coast. That would be expected of a reasonably competent master given the condition of Exodus and the provisions on board. If it was assumed that Exodus was required to enter the migration zone on 19 June because of the existing circumstances, including the capability of the vessel and its level of provisions, Mr Saric had control over those circumstances and it can reasonably be expected he would have guarded against them.
128 Given the foregoing, Mr Saric did not discharge the evidential burden of raising any defence under s 10.1, or, if it were so raised, it was negated by the Commonwealth to, at least, the requisite standard.
Section 10.3 – sudden or extraordinary emergency
129 Section 10.3 of the Criminal Code creates a general defence in relation to the carrying out of conduct in circumstances of sudden or extraordinary emergency. That section provides:
10.3 Sudden or extraordinary emergency
(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency.
(2) This section applies if and only if the person carrying out the conduct reasonably believes that:
(a) circumstances of sudden or extraordinary emergency exist; and
(b) committing the offence is the only reasonable way to deal with the emergency; and
(c) the conduct is a reasonable response to the emergency.
130 As is the case in relation to the defence under s 10.1, the conduct which contravened s 229(1) was bringing a non-citizen into Australia on a vessel and not the mere traversing of the frontier constituting the migration zone. In terms, it was the composite action of transporting of each of Mr Saric and Mr Bonacic who were non-citizens to Australia involving a voyage of about 2,100 nautical miles and more than two weeks of sailing. Whilst it may have been possible for Mr Saric to have abandoned the enterprise at any time, that does not exclude the conclusion that the physical conduct in question were the composite activities identified above.
131 Mr Saric sought to raise the defence under s 10.3 on the basis that the act constituting the defence was the mere entry of Exodus into the migration zone. That involves an erroneous construction of the Act. He did not seek to raise this defence on the basis that the voyage from about Tonga to Australia was carried out in response to any extraordinary emergency. On that basis he has not discharged the evidential onus of raising the defence.
132 On the correct construction of s 10.3 it cannot be established in this case that any sudden or extraordinary emergency existed. Whilst the vessel was traversing the Pacific Island nations Mr Saric had ample opportunity, had he so chosen, to pull into port to effect repairs and provision his vessel. He was not prevented from doing so by circumstances which amounted to a “sudden or extraordinary emergency” and nothing forced him to make for Australia. The reason he did not stop for repairs and provisions was that he preferred to do that in Australia when it would be cheaper and faster.
133 Despite the above conclusion, it is appropriate to consider the matter on the assumption that Mr Saric’s submission was correct, being that the conduct constituting the offence was the crossing of the frontier of the migration zone at the Gold Coast seaway. On that basis, Mr Saric submitted the circumstances of the vessel being in a poor state of repair and encountering the consequences of a subtropical low constituted the “sudden and extraordinary emergency” which necessitated him entering the migration zone. However, even if Mr Saric’s proffered construction of s 10.3 was accepted, the Commonwealth has negated the existence of any defence founded upon it.
134 As has been identified above, whilst it can be accepted the sea state for the two days prior to 19 June was quite unpleasant and involved “hard” sailing, by 19 June the winds had abated somewhat. There is no suggestion that the vessel was in danger of sinking or that the lives of the crew were in peril. Nor is it suggested that the master and crew were out of provisions. Mr Saric said that when they docked in Southport they had two or three days’ provisions remaining. That being so, there was no immediate necessity to enter Australia. Whilst it may have been convenient and desirable to do so, no emergency necessitated it. If no other method of reprovisioning the vessel was implemented within a few days, it may have become a necessity, however it was certainly not so at the relevant date.
135 In considering this issue it is apt to refer to the observations of the Western Australian Supreme Court of Appeal in Warnakulasuriya v The Queen  WASCA 10. There the Court distinguished between the concepts of sudden and extraordinary in the following ways:
 An emergency can occur 'suddenly' and require immediate action. An 'extraordinary' emergency may develop over time but even an extraordinary emergency will eventually require some degree of immediacy in response to it…
 It may be relevant, in deciding whether an emergency is sudden or extraordinary, to have regard to the time which elapsed between the accused becoming aware of the emergency, on the one hand, and his or her acting in response to it, on the other. However, delay is not a 'determinative factor';
 It is possible to draw a meaningful distinction between a sudden emergency and an extraordinary emergency. It has been said that a sudden emergency is one which comes upon the accused unexpectedly, catching him or her off guard. This type of emergency incorporates a sense of immediate danger, one which will occur almost instantaneously unless the accused takes countervailing action. In this case there may be little opportunity for calm reflection or for the mustering of resolve or fortitude. In contrast, an extraordinary emergency may denote a situation of extreme gravity and abnormal or unusual danger that might well have occurred suddenly but persists over a period of time…
136 Here, the events which occurred on the three days prior to the entry into the Australian migration zone did not happen suddenly in the sense that they came upon Mr Saric unexpectedly and caught him off guard. Nor were they extraordinary. The weather was poor and made sailing difficult, but the conditions were not extraordinary by any means and it did not create a state of emergency. As Dr Badham said in his expert reports, when Exodus came close to and entered Australia it would have endured difficult sailing conditions with 30 to 40 knot winds and 3 to 4 metre seas. The evidence shows the more difficult conditions in the two days prior to 19 June were not such that they greatly impeded the progress or direction of the vessel. On those days it travelled for 123 miles and 186 miles respectively and on a course directly towards Southport, Queensland. It is apparent the seas were navigable, even in the relatively small Exodus, and that is a strong indication that no extraordinary circumstances existed.
137 Perhaps the strongest evidence of the absence of any “emergency” whether it be sudden or extraordinary, is the failure of Mr Saric to attempt to contact the Australian authorities and seek assistance. If there had existed an “extraordinary emergency” of the type referred to in s 10.3, it is inconceivable that he would not have used his satellite phone or his VHF radio or any of his other forms of communication to contact the Australian authorities to identify his circumstances and to seek assistance. At the very least he would have alerted the authorities to his position and the risks he was facing, lest the risks created by the extraordinary emergency materialise and imperil the vessel. That is particularly relevant in the light of the fact that he had, so he claims, made radio contact with the Marina Mirage at the Gold Coast and some other marina as well. In neither of those conversations did he claim that he or his vessel was in danger. His failure to advise anyone that he was experiencing circumstances of an extraordinary emergency takes on additional significance when it is recalled the history of his voyage shows he was readily prepared to call for assistance when the circumstances required it.
138 The Commonwealth also submitted there was no evidence which satisfied the requirements of subs (2); namely that Mr Saric carried out the conduct in question reasonably believing the matters in sub-paragraphs (2)(a), (b) and (c). It submitted Mr Saric failed to establish he had a reasonable belief that a sudden or extraordinary emergency existed because of the relevant circumstances, or even what those circumstances were and what was the nature of the emergency. Mr McCarthy for Mr Saric submitted the evidence appeared in Mr Saric’s affidavit although the paragraphs to which the Court was directed did not support that submission. At its highest all Mr Saric deposed to was taking a risk of getting to port to escape from the storm and that the weather conditions were extremely difficult. Later in his affidavit he said he only entered Australia because of the need to resupply and repair.
139 Despite Mr McCarthy’s very able submissions to the contrary, the evidence falls short of establishing that Mr Saric had a reasonable belief that a sudden and extraordinary emergency existed.
140 The Commonwealth further submitted that Mr Saric had not discharged the evidential burden in relation to the further requirement that he reasonably believed that committing the offence was the only reasonable way to deal with the emergency. Again, despite Mr McCarthy’s strenuous submissions to the contrary, there was no sufficient evidence which would permit the Court to conclude this requirement of s 10.3(2)(b) was satisfactorily raised. All that was relied upon was a statement in Mr Saric’s affidavit, “We could not turn back to the Pacific Islands and we could not continue to Indonesia”. That does not raise the requirement in s 10.3(2)(b). In order to do so Mr Saric would have had to have shown, at least, that he considered the alternatives to dealing with the emergency and there is nothing to show he did. He did not mention whether he considered being escorted into port or reprovisioning at sea (“underway replenishment” or “replenishment at sea” as it is often referred to) or any other alternative. It follows there was an absence of evidence on which the Court might conclude this criteria was satisfied. Indeed, it is apparent that Mr Saric did not hold the reasonable belief required. The Commonwealth has established this to the requisite standard of proof.
141 Whether the relevant conduct was crossing into the migration zone or travelling from near Tonga to Australia, there was no evidence from Mr Saric to establish that he believed the conduct was a reasonable response to the real or perceived emergency. This was not the topic of any of his evidence. That said, given his inability to satisfy the requirements of s 10.3(2)(a) or (b), there is no need to reach a final conclusion about this.
142 It must be kept steadily in mind the above discussion has, to some extent, proceeded upon the notion that the “conduct constituting the offence” was the crossing of the frontier of the migration zone. That is the manner in which Mr Saric framed his case. However, as has been indicated, the relevant conduct was the bringing of non-citizens to Australia without a visa and that conduct took place over a period of about two weeks and a long sea voyage. This reflects the Commonwealth’s submissions on the construction of s 229 which ought to be accepted. On this basis, there is nothing to suggest the extraordinary emergency existed from the time Exodus was near Tonga with the consequence that the vessel was required to sail to Australia and it was not suggested by Mr Saric. Nor was there anything to suggest that embarking on a long sea voyage from around Tonga to Australia through inclement weather was a reasonable response. A port outside of Australia at one of the Pacific Island nations would obviously have been more appropriate to stop. On this construction the requirements of s 10.3(2) could not be satisfied.
Conclusion on Criminal Code defence
143 It follows that neither of the defences under s 10.1 or 10.3 are available to Mr Saric. Even if it is assumed that the defences had been raised by him, the Commonwealth negated their availability. Indeed, it has disproved their availability on the higher standard of proof being beyond reasonable doubt.
144 It follows the Commonwealth has established that Exodus was involved in a contravention of s 229(1) because the requirements of that section were satisfied and no available defence existed. It also follows that the requirements of s 261A have been established and Mr Saric has not shown any entitlement to recover the vessel.
145 The consequence is that the orders Mr Saric seeks should be refused and his application should be dismissed with costs. His lack of success on his application has the effect that, by reason of the operation of the Act, the vessel has been condemned as forfeited to the Commonwealth.