R v Bauwa Deng Narru - [2012] QCA 364

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bauwa Deng Narru [2012] QCA 364

PARTIES:

R
v
BAUWA DENG NARRU, Sampara
(appellant)

FILE NO/S:

CA No 102 of 2012
DC No 1796 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

21 December 2012

DELIVERED AT:

Brisbane

HEARING DATE:

26 November 2012

JUDGES:

Holmes and Fraser JJA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PRESENTATION OF CROWN CASE – where the appellant was found guilty of an offence of people smuggling and sentenced to imprisonment for five and a half years, with a non-parole period of three and a half years – where the prosecution opened that it would call five of 23 passengers to give evidence – where the prosecution failed to call the fifth passenger as opened – where the appellant contends that, notwithstanding a direction from the trial judge, there was a miscarriage of justice because the case was left to the jury on a different basis to that opened by the prosecution and as litigated at trial – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant contends there was a miscarriage of justice because the directions given to the jury in relation to the failure to call the five witnesses as opened by the prosecution were insufficient to satisfy an element of the offence – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – where the appellant contends the trial judge erred in finding there was a case to answer – whether there was a miscarriage of justice – whether the trial judge erred

Migration Act 1958 (Cth), s 232A(1)

Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45, cited
Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1, cited
R v Apostilides (1984) 154 CLR 563; [1984] HCA 38, cited
R v Heinze (2005) 153 A Crim R 380; [2005] VSCA 124, cited

COUNSEL:

C L Morgan for the appellant
W J Abraham QC, with M J Woodford, for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Commonwealth) for the respondent

HOLMES JA: I agree with the reasons of Boddice J and the order he proposes.

FRASER JA: I agree with the reasons for judgment of Boddice J and the order proposed by his Honour.

BODDICE J: On 3 April 2012, a jury found the appellant guilty of an offence of people smuggling. The appellant was sentenced to imprisonment for five and a half years, with a non-parole period of three and…

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 Bauwa Deng Narru

Details

AGLC: R v Bauwa Deng Narru [2012] QCA 364
Case: [2012] QCA 364
Decision Date: 21 December 2012

CaseChat Overview and Summary

In the matter of R v Bauwa Deng Narru, the appellant sought to appeal against his conviction for people smuggling, which resulted in a sentence of imprisonment for five and a half years, with a non-parole period of three and a half years. The court was tasked with assessing the sufficiency of the directions given to the jury and determining whether there was a miscarriage of justice due to the prosecution's failure to call a specific passenger as outlined in their case opening. The appellant argued that the trial judge's directions regarding the non-called witnesses were insufficient, and this failure led to an unjust outcome. Furthermore, the appellant contested the trial judge's finding that there was a case to answer, asserting that this was an erroneous exercise of judicial discretion.

The primary legal issues before the court were whether the trial judge's directions to the jury were adequate in light of the prosecution's failure to call a key witness and whether the trial judge erred in finding that there was a case to answer. The court examined the sufficiency of the jury directions and whether the omission of the witness testimony resulted in a miscarriage of justice. Additionally, the court reviewed the trial judge's decision to proceed with the case, considering whether this decision was within the judge's proper discretion.

Upon review, the court determined that the trial judge's directions to the jury were sufficient, and the absence of the witness did not prejudice the appellant to the extent that a miscarriage of justice occurred. The court found that the trial judge's decision to proceed with the case was not an abuse of judicial discretion. Consequently, the appeal against the conviction was dismissed, affirming the original findings and sentence.

The court's final orders were to dismiss the appeal against the conviction, upholding the original findings and sentence imposed on the appellant.

Orders

Orders of the court

Appeal against conviction dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Bauwa Deng Narru [2012] QCA 364
PARTIES:	R v BAUWA DENG NARRU, Sampara (appellant)
FILE NO/S:	CA No 102 of 2012 DC No 1796 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	21 December 2012
DELIVERED AT:	Brisbane
HEARING DATE:	26 November 2012
JUDGES:	Holmes and Fraser JJA and Boddice J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PRESENTATION OF CROWN CASE – where the appellant was found guilty of an offence of people smuggling and sentenced to imprisonment for five and a half years, with a non-parole period of three and a half years – where the prosecution opened that it would call five of 23 passengers to give evidence – where the prosecution failed to call the fifth passenger as opened – where the appellant contends that, notwithstanding a direction from the trial judge, there was a miscarriage of justice because the case was left to the jury on a different basis to that opened by the prosecution and as litigated at trial – whether there was a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant contends there was a miscarriage of justice because the directions given to the jury in relation to the failure to call the five witnesses as opened by the prosecution were insufficient to satisfy an element of the offence – whether there was a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – where the appellant contends the trial judge erred in finding there was a case to answer – whether there was a miscarriage of justice – whether the trial judge erred Migration Act 1958 (Cth), s 232A(1) Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45, cited Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1, cited R v Apostilides (1984) 154 CLR 563; [1984] HCA 38, cited R v Heinze (2005) 153 A Crim R 380; [2005] VSCA 124, cited
COUNSEL:	C L Morgan for the appellant W J Abraham QC, with M J Woodford, for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Commonwealth) for the respondent