R v Ambo

Case [2011] NSWDC 156 28 September 2011

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District Court

New South Wales

Medium Neutral Citation: R v AMBO [2011] NSWDC 156
Hearing dates: 20 - 28 September 2011
Decision date: 28 September 2011
Jurisdiction: Criminal
Before: B J Knox SC DCJ
Decision:
The application for a directed verdict of acquittal is rejected

Catchwords: CRIMINAL LAW - Judgment - Application for a directed verdict - Lawful right
Legislation Cited: Criminal Code
Migration Act
Cases Cited: Applicant A v Minister for Immigration & Ethnic Affairs (1996 - 1997) 190 CLR 225
DPP v Jeky Payara (2011) Vict CA
Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 384
Koowarta v Bjelke Petersen (1982) 153 CLR 168 at 204; [1982] HCA 27
Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273
Minister for Immigration v Ibrahim (2000) 204 CLR 1
NAGV & NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 222 CLR 161
Nguyen Tuan Cuong v Director of Immigration [1997] 1 WLR 68
Plaintiff M70/2011 v Minister for Immigration and Citizenship; M106/2011 v Minister for Immigration and Citizenship [2011] HCA 32
R v Mahnedra [2011] NTSC 57
T v Home Secretary [1996] AC 742
Texts Cited: Explanatory Memorandum to the Anti-People Smuggling & Other Measures Bill (Cth) 2010
Universal Declaration of Human Rights
Category: Principal judgment
Parties: The Crown
Asse Ambo
Representation: D Lee - The Crown
Mr Kerkyasharian - The Accused
Director of Public Prosecutions (Cth)
O'Brien Hudson Law - The Accused

File Number(s): 2011/148339

Judgment

APPLICATION FOR A DIRECTED VERDICT

At the conclusion of the Crown case, Counsel for the accused made an application for a directed verdict. These are my reasons for rejecting that application.

INDICTMENT

The accused is charged with one count on an indictment as follows:

Between about 5 February 2011 and about 8 February 2011 in the waters between the Republic of Indonesia and the Territory of Christmas Island, Australia, facilitated the bringing or coming to Australia of a group of five or more people, namely a group of fifty-three people who were non-citizens and travelled to Australia and who had, or have, no lawful right to come to Australia, and he did so reckless as to whether those people had or have a lawful right to come to Australia .

OFFENCE

The charge has been brought against the accused under section s 233C of the Migration Act which provides:

(1) A person (the first person ) commits an offence if:

(a) the first person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of at least 5 persons (the other persons ); and

(b) at least 5 of the other persons are non-citizens; and

(c) the persons referred to in paragraph (b) who are non-citizens had, or have, no lawful right to come to Australia.

Penalty: Imprisonment for 20 years or 2,000 penalty units.

ELEMENTS

The elements of this offence are as follows; that the accused:

(1) Organised or facilitated the bringing or…

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 Ambo

Details

AGLC: R v Ambo [2011] NSWDC 156
Case: [2011] NSWDC 156
Decision Date: 28 September 2011

CaseChat Overview and Summary

The case of R v Ambo involved the respondent, Ambo, who was on trial for an alleged criminal offence. The specifics of the offence are not detailed in the text, but it is understood that Ambo applied for a directed verdict of acquittal, which was rejected by the court. The case was heard in a court that has jurisdiction over criminal matters, although the exact court is not specified.

The primary legal issue before the court was whether Ambo's application for a directed verdict of acquittal should be granted. This required the court to consider whether there was sufficient evidence presented against Ambo to warrant a conviction. The court also had to determine if Ambo's actions were in accordance with his lawful rights, which could have potentially affected the outcome of the case.

In rejecting the application for a directed verdict of acquittal, the court found that there was sufficient evidence to allow the case to proceed to the jury. The court considered the evidence presented and concluded that it was adequate to support a conviction if the jury found Ambo guilty beyond reasonable doubt. The court also assessed whether Ambo's actions were justified under his lawful rights, but did not find this to be a mitigating factor in the current context.

The orders made by the court were to reject the application for a directed verdict of acquittal, thereby allowing the case to proceed to the jury for determination. The court's decision was based on the sufficiency of the evidence presented and the lack of justification under lawful rights. The case continues to be heard by the jury, who will determine the final outcome based on the evidence and legal arguments presented.

Orders

Orders of the court

The application for a directed verdict of acquittal is rejected

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

R v Ambo [2011] NSWDC 156

Most Recent Citation

R v Oke Ladoke, R v Ardi La Lau and R v Haris La Said [2011] NSWDC 183

Cases Citing This Decision

R v Oke Ladoke, R v Ardi La Lau and R v Haris La Said [2011] NSWDC 183
Citation 1 (Para 1)

…made to Judge Knox SC, although it is accepted that that case concerned the new s 233C Migration Act , s 23A having been repealed: see R v Asse Ambo [2011] NSWDC 156.…

See all citing cases →

Cases Cited

Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32
Citation 1 (Para 1)

…In Plaintiff M70/2011 v Minister for Immigration and Citizenship; M106/2011 v Minister for Immigration and Citizenship [2011] HCA 32, Kiefel J summarised the position at [247] and following:…
R v Mahendra [2011] NTSC 57
Citation 2 (Para 1)

…ant A v Minister for Immigration & Ethnic Affairs (1996-1997) 190 CLR 225; Nguyen Tuang Cuong v Director of Immigration [1997] 1 WLR 68; R v Mahendra [2011] NTSC 57 which advance the following principles. International law deals with the right of asylum as a right of states, not individuals; individuals cannot ac…
NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6
Citation 3 (Para 1)

…Counsel for the Crown referred me to the following cases: NAGV & NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 222 CLR 161; Minister for Immigration v Ibrahim (2000) 204 CLR 1; T v Home Secretary [1996] AC 742; Applicant A v Minister for Immigration & Ethnic Affairs (1996-1997) 1…
Coleman v Power [2004] HCA 39
Citation 4

…Commonwealth ((2003) 211 CLR 476 at 492 [29] fn 64 per Gleeson CJ; [2003] HCA 2), and Coleman v Power ((2004) 220 CLR 1 at 27-28 [19] per Gleeson CJ; [2004] HCA 39).…
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6
Citation 5

…95) 183 CLR 273 at 287-288. See also Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 33 [100]; [2003] HCA 6.) :…
Plaintiff S157/2002 v Commonwealth [2003] HCA 2
Citation 6

…37 at 384 [97] per Gummow and Hayne JJ; [1998] HCA 22.), Plaintiff S157/2002 v The Commonwealth ((2003) 211 CLR 476 at 492 [29] fn 64 per Gleeson CJ; [2003] HCA 2), and Coleman v Power ((2004) 220 CLR 1 at 27-28 [19] per Gleeson CJ; [2004] HCA 39).…
Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55
Citation 7 (Para 1)

…the municipal or domestic legislation. Similarly, a contracting state can determine who should be allowed to enter its territory - R v Ibrahim [2000] 204 CLR 1 per Gummow J at [137 ]; Applicant A v MIEA (1996-1997) 190 CLR 225 at 273; and in the UK, T v Immigration Officer [1996] AC 742 at 754B. That approac…
Kartinyeri v The Commonwealth [1998] HCA 22
Citation 8

…The rule of construction stated in Teoh has been applied in Kartinyeri v The Commonwealth ((1998) 195 CLR 337 at 384 [97] per Gummow and Hayne JJ; [1998] HCA 22.), Plaintiff S157/2002 v The Commonwealth ((2003) 211 CLR 476 at 492 [29] fn 64 per Gleeson CJ; [2003] HCA 2), and Coleman v Power ((2004) 220 CLR 1 at…
Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4
Citation 9 (Para 1)

…ter for Immigration v Ibrahim (2000) 204 CLR 1; T v Home Secretary [1996] AC 742; Applicant A v Minister for Immigration & Ethnic Affairs (1996-1997) 190 CLR 225; Nguyen Tuang Cuong v Director of Immigration [1997] 1 WLR 68; R v Mahendra [2011] NTSC 57 which advance the following principles. International law…
Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20
Citation 10

…eky Payara (2011) Vict CA Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 384 Koowarta v Bjelke Petersen (1982) 153 CLR 168 at 204; [1982] HCA 27 Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 Minister for Immigration v Ibrahim (2000) 204 CLR 1 NAGV & NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (…
Koowarta v Bjelke-Petersen [1982] HCA 27
Citation 11 (Para 1)

…- Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 384 [97] per Gummow and Hayne JJ, citing Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 204; [1982] HCA 27).…
Polites v The Commonwealth [1945] HCA 3
Citation 12

…945) 70 CLR 60 at 68-69 per Latham CJ (citing Maxwell on the Interpretation of Statutes, 8th ed (1937) at 130), 77 per Dixon J and 81 per Williams J; [1945] HCA 3) it was accepted that a statute is to be interpreted and applied, so far as its language permits, so that it is in conformity, and not in conflict, w…
Jumbunna Coal Mine NL v Victorian Coal Miners' Association [1908] HCA 95
Citation 13

…v Victorian Coal Miners' Association (1908) 6 CLR 309 at 363 per O'Connor J (citing Maxwell on the Interpretation of Statutes, 3rd ed (1896) at 200); [1908] HCA 95.) In Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287; [1995] HCA 20) , Mason CJ and Deane J took the proposition to appl…
[1996] AC 742 [1996] AC 742
Citation 14 (Para 1)

…ster for Immigration & Multicultural & Indigenous Affairs (2005) 222 CLR 161; Minister for Immigration v Ibrahim (2000) 204 CLR 1; T v Home Secretary [1996] AC 742; Applicant A v Minister for Immigration & Ethnic Affairs (1996-1997) 190 CLR 225; Nguyen Tuang Cuong v Director of Immigration [1997] 1 WLR 68; R v M…
[1997] 1 WLR 68 [1997] 1 WLR 68
Citation 15 (Para 1)

…ecretary [1996] AC 742; Applicant A v Minister for Immigration & Ethnic Affairs (1996-1997) 190 CLR 225; Nguyen Tuang Cuong v Director of Immigration [1997] 1 WLR 68; R v Mahendra [2011] NTSC 57 which advance the following principles. International law deals with the right of asylum as a right of states, not indiv…

Legislation Cited

No legislation cited in this judgment.

Medium Neutral Citation:	R v AMBO [2011] NSWDC 156
Hearing dates:	20 - 28 September 2011
Decision date:	28 September 2011
Jurisdiction:	Criminal
Before:	B J Knox SC DCJ
Decision:	The application for a directed verdict of acquittal is rejected
Catchwords:	CRIMINAL LAW - Judgment - Application for a directed verdict - Lawful right
Legislation Cited:	Criminal Code Migration Act
Cases Cited:	Applicant A v Minister for Immigration & Ethnic Affairs (1996 - 1997) 190 CLR 225 DPP v Jeky Payara (2011) Vict CA Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 384 Koowarta v Bjelke Petersen (1982) 153 CLR 168 at 204; [1982] HCA 27 Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 Minister for Immigration v Ibrahim (2000) 204 CLR 1 NAGV & NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 222 CLR 161 Nguyen Tuan Cuong v Director of Immigration [1997] 1 WLR 68 Plaintiff M70/2011 v Minister for Immigration and Citizenship; M106/2011 v Minister for Immigration and Citizenship [2011] HCA 32 R v Mahnedra [2011] NTSC 57 T v Home Secretary [1996] AC 742
Texts Cited:	Explanatory Memorandum to the Anti-People Smuggling & Other Measures Bill (Cth) 2010 Universal Declaration of Human Rights
Category:	Principal judgment
Parties:	The Crown Asse Ambo
Representation:	D Lee - The Crown Mr Kerkyasharian - The Accused Director of Public Prosecutions (Cth) O'Brien Hudson Law - The Accused
File Number(s):	2011/148339