R v Husen Baco - [2011] NTSC 75

R v Husen Baco & Ors [2011] NTSC 75
PARTIES: The Queen

v
Husen Baco, Imus,
Mbau, Mikel and
Mushollah, Hendryk

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:   SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:   21040049, 21040047 and 21040050
DELIVERED:   28 September 2011
HEARING DATES:   26 September 2011
JUDGMENT OF:   KELLY J
CATCHWORDS:

Evidence Act s 26L – determination of questions of law before jury empanelled
Migration Act s 232A(1)(b) – whether passengers had “a lawful right to come to Australia” – determined in accordance with Australian law Migration Act – no lawful right to come to Australia
Migration Act 232A – facilitating the bringing to Australia of 5 or more people to whom s 42(1) applies – elements of the offence – whether necessary to prove knowledge that passengers are “people to whom s 42(2) applies” - s 232A(1)(b) provides fault element of recklessness – intention/knowledge not required

Criminal Code (Cth), s 4.1(1)(a), s 4.1(c), s 4.1(2), Chapter 2, s 5.2, s 5.1(1), s 5.6.(1), s 5.6(2)
Evidence Act (NT), s 26L

Migration Act 1958 (Cth), s 4A, s 5(1), s 5.6, s 13(1), s 14(1), s 42(1), s 46A, s 68, s 232A, s 232A(1)(b)
Application v Minister for Immigration (1997) 190 CLR 225; Minister for Immigration v Ibrahim (2000) 204 CLR 1 ; NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161; Nguyen Tuan Cuong v Director of Immigration [1997] 1 WLR 68; R v Saengsai-Or (2004) 61 NSWLR 135; SZ v Minister for Immigration and Cultural Affairs (2000) 101 FCR 342; T v Home Secretary [1996] AC 742; considered
REPRESENTATION:
Counsel:
Plaintiff:   W Abraham QC with N Batten
Defendant (Husen Baco):              I Read with F Kepert
Defendants (Mbau & Mushollah) I Read with J Adams
Solicitors:
Plaintiff:   Commonwealth Director of Public Prosecutions
Defendants:   Northern Territory Legal Aid Commission
Judgment category classification:    A
Judgment ID Number:   KEL11018
Number of pages:   19

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
R v Husen Baco & Ors [2011] NTSC 75
No. 21040049, 21040047 and 21040050
BETWEEN:

THE QUEEN

Plaintiff

AND:

IMUS HUSEN BACO, MIKEL MBAU and HENDRYK MUSHOLLAH

Defendants

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 28 September 2011)

Each of the accused is charged with one count alleging that he facilitated the bringing to Australia of a group of five or more people to whom s 42(1) of the Migration Act 1958 (Cth) applies, namely 43 people, being reckless as to whether the people had a lawful right to come to Australia, contrary to s 232A of the Act. The allegation is that the accused were the captain and crew of the Cahaya Purnam, a vessel on which they carried the 43 people from Indonesia to Australia.
Two questions of law have been set down for preliminary determination pursuant to s 26L of the Evidence Act. The first is whether five 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 Husen Baco

Details

AGLC: R v Husen Baco & Ors [2011] NTSC 75
Case: [2011] NTSC 75
Decision Date: 28/09/2011

CaseChat Overview and Summary

In the case of R v Husen Baco, the defendant was charged with contravening the Migration Act by facilitating the bringing of five or more individuals to Australia, who did not possess a lawful right to enter the country. The matter was heard in the Federal Court of Australia, which was tasked with resolving several legal questions regarding the interpretation and application of the relevant statutory provisions. The primary issues before the court were whether the question of whether the passengers had a lawful right to come to Australia should be decided by the jury or the judge, and what level of knowledge or intention was required to establish the offence under section 232A of the Migration Act.

The court considered the provisions of the Evidence Act and determined that the question of whether the passengers had a lawful right to come to Australia was a question of law that should be decided by the judge, not the jury. Furthermore, the court held that section 232A(1)(b) of the Migration Act sets out the fault element of recklessness, and it is not necessary to prove that the defendant knew that the passengers were "people to whom s 42(2) applies." The court concluded that the prosecution must establish that the defendant recklessly facilitated the entry of the passengers into Australia, without requiring proof of their specific knowledge about the passengers' immigration status.

The court's interpretation of the statutory provisions resulted in a significant reduction in the burden of proof for the prosecution, as it was no longer required to demonstrate that the defendant had knowledge of the passengers' immigration status. This decision may have implications for future prosecutions under the Migration Act, as it clarifies the legal requirements for establishing the offence and the role of the jury in such cases. The final orders of the court were not provided in the text, and it is unclear whether the defendant's case proceeded to trial or was otherwise resolved.

Orders