R v Razak - [2012] QCA 244

SUPREME COURT OF QUEENSLAND

CITATION:

R v Razak [2012] QCA 244

PARTIES:

R
v
RAZAK, Rian Abdul
(appellant)

FILE NO/S:

CA No 271 of 2011
DC No 1048 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

11 September 2012

DELIVERED AT:

Brisbane

HEARING DATE:

19 June 2012

JUDGES:

Muir, Fraser and Gotterson JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL – DISMISSED – where appellant found guilty by jury of facilitating bringing a group of non-citizens to Australia and sentenced to mandatory minimum of five years imprisonment with three year non-parole period – where intention to facilitate the bringing of the passengers to Australia was element of offence – where appellant argued Crown case consistent with hypothesis that appellant was involved in clandestine movement of passengers within Indonesia, contrary to Indonesian law – where appellant argued that evidence did not allow jury to exclude that hypothesis beyond reasonable doubt – where recklessness as to whether passengers had lawful right to come to Australia was element of offence – where appellant argued that he would not have been aware of the passengers’ visa status because he did not understand the language they spoke and there was no evidence that he had any knowledge about immigration or any passport held by any passenger – where appellant argued that no adverse inference could be drawn from evidence of passengers retreating below deck, apparently to avoid detection, because that was explicable by hypothesis that appellant was engaged in clandestine movement of passengers within Indonesia – where respondent argued it was reasonably open for jury to conclude that a crew member in the appellant’s position would realise, even if not told directly, that there was a substantial risk that the passengers undertook the journey in that way and under those conditions because they had no right to come to Australia – whether open to jury on the evidence to be satisfied beyond reasonable doubt that appellant was guilty of offence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where appellant argued that as he was not involved in pre-travel arrangements, evidence of those arrangements given by the witnesses who were passengers was inadmissible – where respondent argued evidence of arrangements between passengers and smuggler contacts for travel to Australia was relevant to question whether it should be inferred that the appellant was aware that purpose of voyage was to take passengers to Australia – whether evidence admissible

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where defence counsel asked trial judge to direct jury that evidence of arrangements with smuggler contacts was irrelevant to determination of appellant’s guilt…

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 Razak

Details

AGLC: R v Razak [2012] QCA 244
Case: [2012] QCA 244
Decision Date: 11 September 2012

CaseChat Overview and Summary

In the case of R v Razak, the appellant was found guilty by a jury of facilitating the bringing of a group of non-citizens to Australia. The appellant was sentenced to a mandatory minimum of five years imprisonment, with a non-parole period of three years. The appellant appealed against his conviction and sentence, arguing that the verdict was unreasonable or insupportable having regard to the evidence. The appeal was heard in the higher court of Australia.

The legal issues in the case included whether the jury could be satisfied beyond reasonable doubt that the appellant was guilty of the offence, given the evidence presented. The appellant argued that the evidence was consistent with a hypothesis that he was involved in the clandestine movement of passengers within Indonesia, contrary to Indonesian law. The appellant also argued that the evidence did not allow the jury to exclude this hypothesis beyond reasonable doubt. Additionally, the appellant argued that there was no evidence that he had any knowledge about immigration or any passport held by any passenger, and that no adverse inference could be drawn from evidence of passengers retreating below deck.

The higher court found that it was open to the jury to conclude that a crew member in the appellant's position would realise, even if not told directly, that there was a substantial risk that the passengers undertook the journey in that way and under those conditions because they had no right to come to Australia. The court found that the evidence was sufficient to support the jury's verdict, and that there was no miscarriage of justice in the trial. The appeal was therefore dismissed.

The court also found that the evidence of pre-travel arrangements was relevant to the question of whether it should be inferred that the appellant was aware that the purpose of the voyage was to take passengers to Australia. The court found that the trial judge had not erred in admitting this evidence, and that the defence counsel's argument that the evidence was irrelevant was not well-founded. The court found that the trial judge had not erred in any other respect.

Orders

Orders of the court

Appeal 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 Razak [2012] QCA 244
PARTIES:	R v RAZAK, Rian Abdul (appellant)
FILE NO/S:	CA No 271 of 2011 DC No 1048 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	11 September 2012
DELIVERED AT:	Brisbane
HEARING DATE:	19 June 2012
JUDGES:	Muir, Fraser and Gotterson JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL – DISMISSED – where appellant found guilty by jury of facilitating bringing a group of non-citizens to Australia and sentenced to mandatory minimum of five years imprisonment with three year non-parole period – where intention to facilitate the bringing of the passengers to Australia was element of offence – where appellant argued Crown case consistent with hypothesis that appellant was involved in clandestine movement of passengers within Indonesia, contrary to Indonesian law – where appellant argued that evidence did not allow jury to exclude that hypothesis beyond reasonable doubt – where recklessness as to whether passengers had lawful right to come to Australia was element of offence – where appellant argued that he would not have been aware of the passengers’ visa status because he did not understand the language they spoke and there was no evidence that he had any knowledge about immigration or any passport held by any passenger – where appellant argued that no adverse inference could be drawn from evidence of passengers retreating below deck, apparently to avoid detection, because that was explicable by hypothesis that appellant was engaged in clandestine movement of passengers within Indonesia – where respondent argued it was reasonably open for jury to conclude that a crew member in the appellant’s position would realise, even if not told directly, that there was a substantial risk that the passengers undertook the journey in that way and under those conditions because they had no right to come to Australia – whether open to jury on the evidence to be satisfied beyond reasonable doubt that appellant was guilty of offence CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where appellant argued that as he was not involved in pre-travel arrangements, evidence of those arrangements given by the witnesses who were passengers was inadmissible – where respondent argued evidence of arrangements between passengers and smuggler contacts for travel to Australia was relevant to question whether it should be inferred that the appellant was aware that purpose of voyage was to take passengers to Australia – whether evidence admissible CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where defence counsel asked trial judge to direct jury that evidence of arrangements with smuggler contacts was irrelevant to determination of appellant’s guilt…