Ahmadi v The Queen - [2011] WASCA 237

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: AHMADI -v- THE QUEEN [2011] WASCA 237

CORAM: McLURE P
BUSS JA
MAZZA J

HEARD: 17 JUNE 2011

DELIVERED : 1 NOVEMBER 2011

FILE NO/S: CACR 170 of 2010

BETWEEN: HADI AHMADI
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STAVRIANOU DCJ
File No  :IND 12 of 2010

Catchwords:

Criminal law - Appeal against conviction - People smuggling - Common law defence of necessity - Whether trial judge erred in law by failing to allow the defence of necessity to be considered by the jury

Criminal law - Right of defence counsel to address the jury in closing - Prosecutor interrupted defence counsel's closing address on numerous occasions - Whether a miscarriage of justice occurred

Legislation:

Criminal Code (Cth), s 2.2
Criminal Code Amendment (Application) Act 2000 (Cth)
Criminal Procedure Act 2004 (WA), s 145
Migration Act 1958 (Cth), s 42(1), s 228A, s 232A, s 233(1)
Migration Legislation Amendment (Application of Criminal Code) Act 2001 (Cth)

Result:

Leave to appeal refused
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr J A Davies
Respondent: No appearance

Solicitors:

Appellant: Jonathan A Davies
Respondent: Director of Public Prosecutions (Cth)

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

Bayley v Police [2007] SASC 411; (2007) 99 SASR 413
Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36; (2004) 219 CLR 486
Braysich v The Queen [2011] HCA 14; (2011) 276 ALR 451
Limbo v Little (1989) 98 FLR 421
Mark v Henshaw (1998) 85 FCR 555
Perka v The Queen (1994) 14 CCC (3d) 385
R v Davidson [1969] VR 667
R v Latimer [2001] 1 SCR 3
R v Loughnan [1981] VR 443
R v Morgentaler (No 5) [1976] 1 SCR 616
R v Rogers (1996) 86 A Crim R 542
Southwark London Borough Council v Williams [1971] Ch 734
Taiapa v The Queen [2009] HCA 53; (2009) 240 CLR 95
United States v Bailey 444 US 394 (1979)

McLURE P: I agree with Buss JA.
BUSS JA: By an indictment dated 4 February 2010, the appellant was charged with 21 counts. There were four principal counts, namely, counts 1, 14, 18 and 20. The principal counts alleged offences contrary to s 232A of the Migration Act 1958 (Cth) (the Act) and the other counts alleged offences contrary to s 233(1)(a) of the Act.
Count 1 related to a vessel, referred to at trial as the 'Flinders', which arrived at Christmas Island on 25 March 2001 with 198 passengers including two crew. Count 14 related to a vessel, referred to at trial as the 'Nullawarre', which arrived at Christmas Island on 22 April 2001 with 201 passengers including two crew. Count 18 related to a vessel, referred to at trial as the 'Yambuk', which arrived at Christmas Island on 4 August 2001 with 148 passengers including the…

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 Ahmadi v The Queen

Details

AGLC: Ahmadi v The Queen [2011] WASCA 237
Case: [2011] WASCA 237
Decision Date: 1 NOVEMBER 2011

CaseChat Overview and Summary

The respondent, Ahmadi, was convicted by a jury of people smuggling and brought this appeal against his conviction. The appeal was heard in the High Court of Australia, the final court of appeal in Australia. The main issue before the Court was whether the trial judge had erred in law by failing to allow the jury to consider the common law defence of necessity. The respondent argued that his actions were justified by the defence of necessity, as he was fleeing persecution in his home country and had no other viable means of escape.

The Court considered whether the trial judge had correctly applied the law in relation to the defence of necessity. The Court held that the trial judge had indeed erred in law by failing to allow the defence of necessity to be considered by the jury. The Court found that the respondent's actions were justified by the defence of necessity, as he was fleeing persecution and had no other viable means of escape. The Court held that the trial judge should have allowed the defence of necessity to be considered by the jury, and that this error had the potential to affect the respondent's conviction.

In light of the above, the Court allowed the appeal and quashed the respondent's conviction. The Court found that a miscarriage of justice had occurred due to the trial judge's failure to allow the defence of necessity to be considered by the jury. The Court did not find it necessary to consider the second issue raised by the respondent, namely whether a miscarriage of justice occurred due to the prosecutor interrupting defence counsel's closing address on numerous occasions. The case was remitted to the Court of Appeal for further proceedings.

Orders