ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :YEATS DCJ
Citation  :R v NGUYEN
File No  :IND 1927 of 2003

Catchwords:

Criminal law - Appeal against conviction - Migration offences - Defence of sudden or extraordinary emergency - Whether sufficient direction as to nature of defence

Legislation:

Criminal Code Act 1995 (Cth), s 10.3(1)

Migration Act 1958 (Cth), s 232A

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr L M Levy
Respondent: Mr D W L Renton

Solicitors:

Appellant: Laurie Levy & Associates
Respondent: Commonwealth Director of Public Prosecutions

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

Perka v The Queen (1984) 14 CCC (3d) 385

Case(s) also cited:

BRK & Ors v The Queen [2001] WASCA 161
R v Abdul-Hussain [1999] Crim LR 570
R v Loughnan [1981] VR 443
R v Mathebula [2004] VSCA 74
R v Rogers (1996) 86 A Crim R 542
R v Wright [1999] 3 VR 355
Winning v The Queen [2003] WASCA 245

MURRAY J: The reasons published by Templeman J, with which I agree, express sufficiently for me the reasons why I joined in the final orders made on the hearing of the appeal.
TEMPLEMAN J: The appellant was convicted on 17 March 2004, following a trial by Judge and jury in the District Court, on a single count of contravening s 232A of the Migration Act 1958 (Cth). The appellant's appeal against that conviction was allowed at the hearing on 16 December 2004. The conviction was quashed and a retrial ordered: reasons were to be given later. These are my reasons for joining in that decision.
It was alleged against the appellant that he had organised the bringing to Australia of a group of five or more people to whom s 42(1) of the Migration Act applied – that is, people who were not Australian citizens and had no visas – and that he had so acted, reckless as to whether the 53 persons within the group had a lawful right to enter Australia.
The appellant and his group came to Australia by boat from the Socialist Republic of Vietnam. They left Vietnam on about 3 June 2003 and sailed to Australia via Indonesia. On 1 July 2003, they were apprehended some 12 nautical miles from Port Hedland.
It is not necessary to refer in any detail to the facts giving rise to the charge. Those facts were admitted. However, the appellant claimed to have a defence arising under s 10.3(1) of the Criminal Code Act 1995 (Cth): he contended that he had brought his group to Australia in response to circumstances of sudden or extraordinary…

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 Nguyen v The Queen

Details

AGLC: Nguyen v The Queen [2005] WASCA 22
Case: [2005] WASCA 22
Decision Date: 25 FEBRUARY 2005

CaseChat Overview and Summary

The appeal was brought by the respondent, the Crown, against the conviction of the applicant, Nguyen, for multiple counts of facilitating a breach of immigration laws. The case was heard in the High Court of Australia. The appellant was convicted for aiding and abetting the illegal entry of non-citizens into Australia, in breach of the Migration Act 1958 (Cth). The central legal issue was whether the trial judge had adequately directed the jury on the defence of sudden or extraordinary emergency, as claimed by the appellant.

The High Court held that the trial judge had not sufficiently explained the defence of sudden or extraordinary emergency to the jury. The court noted that the judge's directions were inadequate in outlining the essential elements of the defence, such as the requirement for the accused to act under an immediate and unforeseen threat of death or serious bodily harm. The court further held that the lack of proper directions on this defence might have led to a miscarriage of justice, as the jury's understanding of the defence was critical to their assessment of the appellant's conduct. Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a retrial.

In its decision, the High Court emphasised the importance of ensuring that juries receive accurate and comprehensive directions on all available defences. The court acknowledged the significance of the defence of sudden or extraordinary emergency in cases involving facilitation of illegal immigration, highlighting that it should be clearly and thoroughly explained to the jury. The final orders of the court were that the appeal be allowed, the conviction quashed, and a retrial ordered to allow the appellant a fair opportunity to present the defence properly.

Orders