R v Abdi - [1994] QCA 402

[1994] QCA 402

COURT OF APPEAL

MACROSSAN CJ McPHERSON JA MACKENZIE J

CA No 218 of 1994
THE QUEEN
v.

ABDULLAHI MOHAMED ABDI

Applicant

BRISBANE
..DATE 23/08/94
THE CHIEF JUSTICE: The applicant appeals against a conviction
for an offence that on a date unknown between 28 September
1992 and 25 May 1993, he parted with possession of a document
with intent that it be used to help a person gain entry into
Australia, this being an offence under the Migration Act 1958,
section 81(2A).

The sentence was imposed by a Magistrate at Townsville on this charge on 1 June 1994. The Magistrate's order was that the applicant be convicted and released without sentence being passed, upon his giving security by recognisance in the sum of $2,000 that he be of good behaviour for 18 months. The Magistrate acted under section 21A of the Crimes Act 1914 in making this order. The Magistrate has ordered in addition that the conviction be recorded.

The background circumstances were these: the applicant's cousin in 1993 arrived at Melbourne Airport, and as a Somali citizen sought refugee status in Australia. At the time of his arrival he did not have any travel documentation in his correct name but was in possession of an Australian certificate of identity which had been issued on 28 September 1992 in the name of one Farah Abdul Mohamed, giving a date of birth in July 1967. That person was the brother of the applicant.

The document contained identity details and a photograph relating to the applicant's brother. It also contained immigration stamps, indicating a departed Australia stamp which was not an authentic one. The cousin telephoned the applicant and the applicant then became aware that the intended outline of events had miscarried. The applicant made certain admissions, aware that the intended scheme had come to a dead end.

Behind those events occurring on that date, this was the situation: the applicant's brother had his certificate of identity issued in September 1992. He wanted it so that he could make a trip back to Kenya to help his family. To acquire that certificate of identity the applicant's brother had been required to produce travel tickets, which he did. He received the certificate of identity in due course but the trip was postponed and a refund obtained for the tickets.

The applicant's brother being left in possession of the certificate, gave it to the applicant for the purpose of arranging visas to other countries. The applicant, having obtained the visa as his brother asked, then, without the knowledge of his brother sent the certificate of identity to Kenya via some people who were travelling there. He, the applicant, declined to disclose the identity of these persons.

The intention of the applicant was that the document be

delivered to his cousin, so his cousin could use it to travel
to Australia. This was the purpose for which it was used.
The applicant told his cousin to keep the document intact if
he could…

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 R v Abdi

Details

AGLC: R v Abdi [1994] QCA 402
Case: [1994] QCA 402
Decision Date: 23/08/1994

CaseChat Overview and Summary

In the case of R v Abdi, the applicant, Abdullahi Mohamed Abdi, appealed against his conviction for an offence under the Migration Act 1958. The conviction was for parting with possession of a document with intent that it be used to help a person gain entry into Australia. The applicant was convicted by a Magistrate at Townsville on 1 June 1994 and was released upon giving security by recognisance to be of good behaviour for 18 months. The Magistrate also ordered that the conviction be recorded. The applicant contended that the Magistrate should have proceeded under section 19B of the Crimes Act rather than recording a conviction. The applicant argued that the recording of a conviction would excessively disadvantage him due to his professional background and qualifications.

The legal issues in this case revolved around the Magistrate's exercise of discretion in recording a conviction and whether it was appropriate in the circumstances of this case. The Court had to consider whether the applicant's professional background and qualifications were sufficient to warrant not recording the conviction and whether there was any evidence to support the claim that the applicant would be significantly disadvantaged beyond the average person's situation by the recording of a conviction.

The Court of Appeal found that the Magistrate's exercise of discretion in recording a conviction was not miscarried. The Court held that there were distinct public elements of importance involved in an offence of this kind under the Migration Act and that it was in the public interest to have matters regulating migration properly administered. The Court further found that the applicant had not shown any particular detriment that would result from the recording of the conviction beyond what is experienced by anyone in the community from having a conviction against their name. Therefore, the Court refused the application and upheld the Magistrate's decision to record the conviction.

Orders