Abdul v The Queen - [2020] WASCA 34

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   ABDUL -v- THE QUEEN [2020] WASCA 34
CORAM:   BUSS P
MAZZA JA
MITCHELL JA

HEARD:   16 MARCH 2020
DELIVERED          :   16 MARCH 2020
PUBLISHED           :   24 MARCH 2020
FILE NO/S:   CACR 84 of 2019
BETWEEN:   RAYAN ABDUL
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STAUDE DCJ
File Number            :   IND 404 of 2011

Catchwords:

Criminal law - Jurisdiction - Whether the appellant was aged under 18 years at the time of allegedly committing an offence - Whether the District Court or the Children's Court had jurisdiction to hear and determine the charge of the offence - Where appellant was convicted in the District Court on his plea of guilty of an offence against s 232A of the Migration Act 1958 (Cth) - Appellant sentenced to the mandatory minimum penalty, for an adult, of 5 years' imprisonment with a minimum non-parole period of 3 years - Referral of matter by Attorney General on appellant's petition - Whether conviction and sentence of appellant occasioned a miscarriage of justice in that the District Court did not have jurisdiction because the appellant was under 18 years of age at the time of the offending - Whether this court should set aside the judgment of conviction and enter a judgment of acquittal without a trial

Legislation:

Criminal Procedure Act 2004 (WA), s 126
Judiciary Act 1903 (Cth), s 68(2)
Migration Act 1958 (Cth), s 232A, s 233C
Sentencing Act 1995 (WA), s 140(1)(a)

Result:

Appeal allowed
Judgment of conviction set aside and judgment of acquittal substituted

Category: B

Representation:

Counsel:

Appellant	:	L G De Ferrari SC
Respondent	:	D W L Renton

Solicitors:

Appellant	:	Ken Cush & Associates
Respondent	:	Director of Public Prosecutions (Cth)

Case(s) referred to in decision(s):

Jasmin v The Queen [2017] WASCA 122; (2017) 51 WAR 505

REASONS OF THE COURT:

We made the following orders at the hearing of this appeal, with reasons to be published at a later date:
(1)Leave to appeal is granted, if leave is required.
(2)The application in an appeal filed on 29 October 2019 is granted.
(3)The appeal is allowed.
(4)The judgment of conviction entered against the appellant in respect of the charge in indictment IND 404 of 2011 is set aside.
(5)A judgment of acquittal is entered in respect of the charge.
These are our reasons for making those orders.

Factual and procedural background

Circumstances of offending

On 29 December 2009, near Ashmore Reef, an Australian customs vessel intercepted a wooden-hulled fishing vessel which they designated SIEV 90. On board the vessel were 48 passengers of Afghan origin who were not Australian citizens and who did not hold visas for entry into Australia. The appellant was an Indonesian crew member of the vessel. He was one of the crew members responsible for maintaining and refuelling the engine, pumping out water, and cooking for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abdul v The Queen

Details

AGLC: Abdul v The Queen [2020] WASCA 34
Case: [2020] WASCA 34
Decision Date: 24 MARCH 2020

CaseChat Overview and Summary

The appellant, Abdul, was convicted in the District Court of a charge under section 232A of the Migration Act 1958 (Cth) and was sentenced to five years' imprisonment with a minimum non-parole period of three years. The matter came before the court on a referral from the Attorney General, who considered the appellant's petition that the conviction and sentence occasioned a miscarriage of justice because the District Court lacked jurisdiction to try and sentence the appellant due to his age at the time of the offence. The appellant argued that he was under 18 years old at the time of the offending, and therefore the Children's Court, and not the District Court, should have had jurisdiction.

The court considered whether the appellant was under 18 years of age at the time of the offence and whether the District Court had jurisdiction to hear and determine the charge. The court also considered whether the conviction and sentence of the appellant occasioned a miscarriage of justice. The court held that the appellant was indeed under 18 years of age at the time of the offence, and therefore the District Court did not have jurisdiction to try and sentence the appellant. The court found that the conviction and sentence of the appellant did occasion a miscarriage of justice.

The court set aside the judgment of conviction and entered a judgment of acquittal without a trial. The court held that the appellant's age at the time of the offence was a jurisdictional fact that could not be waived, and therefore the District Court's lack of jurisdiction rendered the conviction and sentence null and void. The court further held that the appellant's petition for a referral to the court was valid, and that the court had the power to set aside the judgment of conviction and enter a judgment of acquittal without a trial.

Orders