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Alomalu v R

Alomalu v R

Case [2012] NSWCCA 255 26 November 2012

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Alomalu v R [2012] NSWCCA 255
Hearing dates: 4 October 2012
Decision date: 26 November 2012
Before: McClellan CJ at CL at [1]
Rothman J at [83]
Adamson J at [84]
Decision:
1. The appeal is allowed and the conviction is quashed.
2. Order the entry of a verdict of acquittal.

Catchwords:
CRIMINAL LAW - appeal - conviction - appellant convicted of aggravated people smuggling -whether trial judge erred in refusing to direct jury regarding evidence given by appellant on essential element of Crown case - where appellant and key prosecution witness gave conflicting accounts - whether principle in Robinson v The Queen [1991] HCA 38; (1991) 180 CLR 531 was breached - whether direction in Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 - principle in Robinson not breached - Liberato direction not required - appeal dismissed.

CRIMINAL LAW - appeal - whether verdict unreasonable and unsupported by evidence - where no evidence capable of showing appellant knew Ashmore Reef was part of Australia - where evidence gives rise to reasonable doubt that jury should have had - where jury advantage in seeing and hearing evidence not capable of resolving doubt - verdict unreasonable - appeal upheld.
CRIMINAL LAW - appeal - conviction - whether trial judge erred in not giving direction that accused intended to take passengers to Australia or that appellant knew Ashmore Reef was part of Australia - where central issue in trial not properly identified.
Legislation Cited: Migration Act 1958 (Cth)
Criminal Appeal Act 1912
Cases Cited: Bahar v R [2011] WASCA 249; (2011) 214 A Crim R 417
Latham v R [2000] WASCA 57
Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
PJ v R [2012] VSCA 146
R v Smith [2000] NSWCCA 468
Robinson v The Queen [1991] HCA 38; (1991) 180 CLR 531
Short v R [2000] NSWCCA 462
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Sunada v R; Jaru v R [2012] NSWCCA 187
Category: Principal judgment
Parties: Sakarias Alomalu (Appellant)
Crown
Representation: Counsel:
S Corish (Appellant)
P Neil SC (Crown)
Solicitors:
Purcell Felton Lawyers (Appellant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2011/137027
Decision under appeal

Date of Decision:

2011-11-24 00:00:00

Before:

Taylor ADCJ

File Number(s):

2011/137027

Judgment

McCLELLAN CJ at CL: The appellant, Sakarias Alomalu, was convicted on an indictment that alleged that he, along with Bimbi Yusuf Lahniya and Tarsan Bin Su Wita, had facilitated the bringing or coming to Australia of a group of five or more people who were non-citizens and who had no lawful right to come to Australia.

The offence is contrary to s 233C of the Migration Act 1958 (Cth). That section creates an offence of "aggravated people smuggling (at least 5 people)" and provides as follows:

"233C Aggravated offence of people smuggling (at least 5 people)

(1) A person (the first person)…

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 Alomalu v R

Details

AGLC: Alomalu v R [2012] NSWCCA 255
Case: [2012] NSWCCA 255
Decision Date: 26 November 2012

CaseChat Overview and Summary

The appeal in Alomalu v R involved the appellant who was convicted of aggravated people smuggling. The crux of the dispute was whether the trial judge erred in not directing the jury regarding the evidence provided by the appellant on an essential element of the Crown's case. The appellant and the key prosecution witness provided conflicting accounts of the events. The High Court was tasked with determining whether this error breached the principle established in Robinson v The Queen and whether the direction in Liberato v The Queen was required.

The court examined whether the trial judge's refusal to direct the jury amounted to a breach of the principle in Robinson v The Queen. It was held that the principle in Robinson was not breached as the trial judge did not err in his direction to the jury. The court further considered whether the Liberato direction was necessary but found that it was not required in this case. Consequently, the appeal was dismissed.

The court also assessed whether the verdict was unreasonable and unsupported by evidence. The appellant argued that there was no evidence indicating that they knew Ashmore Reef was part of Australia, and the evidence raised a reasonable doubt that the jury should have considered. The court concluded that the jury's advantage in seeing and hearing the evidence was not sufficient to resolve this doubt, leading to the verdict being unreasonable. Thus, the appeal was upheld on this ground.

In conclusion, the appeal was dismissed regarding the trial judge's direction on the evidence, but upheld concerning the unreasonableness of the verdict. The central issue in the trial was not properly identified by the trial judge.

Orders