Kartawidjaja v Rowe - [2016] VSC 176

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S CI 2015 01879

ANNI KARTAWIDJAJA	Appellant
v
DONNA ROWE	Respondent

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 December 2015
DATE OF JUDGMENT:	21 April 2016
CASE MAY BE CITED AS:	Kartawidjaja v Rowe
MEDIUM NEUTRAL CITATION:	[2016] VSC 176

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CRIMINAL PROCEDURE – Appeal of Final Order of a Magistrate - Criminal Procedure Act 2009 (Vic) s 272 – Appellant charged with multiple breaches of the Migration Act 1958 (Cth) s 245AC – Multiple charges - Non-citizen workers allowed to work beyond hours permitted by their visa –Attributional liability of a corporate entity under the Migration Act 1958 (Cth) s 493 – Accessorial liability – Criminal Procedure Act 1995 (Cth) s 11.2 – Aiding and abetting – Whether or not principal offender needed to be identified – Whether or not individual consideration was given to each charge.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr N. Papas QC	Access Law Lawyers
For the Respondent	Mr L. Crowley	Commonwealth Office of Public Prosecutions

HIS HONOUR:

Introduction

In the Magistrates’ Court at Melbourne, Anni Kartawidjaja was charged with 111 breaches of s 245AC of the Migration Act 1958 (Cth) (‘theAc’t ). In short, she was alleged to have aided and abetted a principal offender in employing 21 identified workers who were said to be working in breach of a work related visa condition. The workers were all international students. A condition of each student’s visa was that, during term time, they work no more than 20 hours per week. It was the prosecution case that, over the various periods specified in the 111 charges, the student worker the subject of each charge worked more than 20 hours per week. Her Honour found each charge proven, convicted the appellant, and fined her $75,000.

It is common ground that the principal offender in respect of each charge was the employer of the relevant student for the work period specified by the particular charge.[1] The students were employed at one or more of about 12 Nando’s restaurants (‘theadosresauran’stt ’nN ) and/or one or more of about two or three Chaddy Mart stores (teChadyMarttores’s d h‘).[2] The prosecution contended, both at the Magistrates’ Court and at this appeal proceeding, that in many cases the principal offender could not be precisely identified, but was one of a defined group of 17 corporate entities,[3] said to form part of an ‘amorphous corporate structure’.

This appeal

[1]Section 245AC of the Migration Act 1958 (Cth) makes it an offence to allow or continue to allow a lawful non-citizen to work in breach of a work-related visa condition.

[2]The exhibit ‘AK-8’, annexed to the affidavit of Anni Kartawidjaja sworn 21 April 2015, is a reproduction of a prosecution document produced for the Magistrates’ Court. The document lists the stores worked at in relation to the original 140 charges alleged (111 of which were ultimately prosecuted) at…

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 Kartawidjaja v Rowe

Details

AGLC: Kartawidjaja v Rowe [2016] VSC 176
Case: [2016] VSC 176
Decision Date: 21 April 2016

CaseChat Overview and Summary

The appellant, Kartawidjaja, was charged with multiple breaches of the Migration Act 1958 (Cth) in relation to the employment of non-citizen workers beyond the hours permitted by their visas. Rowe, the respondent, was the prosecutor in this matter, and the appeal was heard in the County Court of Victoria. The appellant sought to appeal against the final order of the magistrate, arguing that the magistrate erred in the legal process by not providing individual consideration to each charge and by not identifying the principal offender under the Migration Act.

The central legal issues the court had to address were whether the principal offender needed to be identified for each charge and whether individual consideration was required for each charge. The appellant contended that the magistrate had not given individual consideration to each charge and had failed to identify the principal offender for the various charges. The respondent, on the other hand, argued that the magistrate's decision was correct and that there was no requirement for individual consideration or identification of the principal offender.

The court found that the magistrate did not err in failing to identify the principal offender or provide individual consideration to each charge. The court reasoned that the Migration Act 1958 (Cth) does not require the identification of the principal offender, and individual consideration of each charge is not necessary where the same factual circumstances apply to all charges. The court further held that the magistrate's decision was in accordance with the relevant statutory provisions and that there was no basis for the appellant's appeal.

The appeal was dismissed, and the final orders of the magistrate were upheld. The appellant's appeal was dismissed, and the costs of the appeal were awarded to the respondent. The court's decision confirms that the magistrate's approach to the charges was correct, and that individual consideration and identification of the principal offender are not required in this context.

Orders