Court of Criminal Appeal
New South Wales
Case Title: SUNADA v R; JARU v R Medium Neutral Citation: [2012] NSWCCA 187 Hearing Date(s): 27 August 2012 Decision Date: 27 August 2012 Jurisdiction: Before: Macfarlan JA;
Price J;
McCallum JDecision: The Court orders that the convictions of the appellants of offences under s 232A(1) of the Migration Act 1958 at the trial concluding on 23 September 2011 be quashed and that verdicts of acquittal of the appellants be entered in relation to the charges of those offences Catchwords: CRIMINAL LAW - appeals against conviction and sentence - offence of aggravated people smuggling (at least five persons) - elements of offence - whether trial judge erred in directing jury that prosecution need not prove that appellants knew intended destination was part of Australia - whether miscarriage of justice - whether order for re-trial appropriate - Migration Act 1958 (Cth) ss 232A, 233C Legislation Cited: Migration Act 1958 (Cth) Cases Cited: Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89
PJ v R [2012] VSCA 146Texts Cited: Category: Principal judgment Parties: Ilham Sunada and Basir Jaru (Appellants)
Crown (Respondent)Representation - Counsel: Counsel:
H Dhanji SC (Appellant - Sunada)
K H Averre (Appellant - Jaru)
P W Neil SC/P McEniery (Respondent)- Solicitors: Solicitors:
Purcell Felton Lawyers (Appellant - Sunada)
Watsons (Appellant - Jaru)
Commonwealth Director of Public Prosecutions (Respondent)File number(s): CCA 2010/393959 Decision Under Appeal - Court / Tribunal: - Before: Madgwick ADCJ - Date of Decision: 27 September 2011 - Citation: R v Ilham Sunada; R v Basir Jaru - Court File Number(s) 2010/393959, 2010/393980 Publication Restriction:
JUDGMENT
THE COURT: Mr Ilham Sunada and Mr Basir Jaru, the appellants, appeal against their conviction of offences under s 232A(1) of the Migration Act 1958 (Cth), charged in the Indictment as follows:
"Between about 29 January 2010 and about 4 February 2010 in and between the waters between the Republic of Indonesia and the Territory of Ashmore and Cartier Islands, Australia, [Mr Sunada and Mr Jaru] facilitated the bringing or coming to Australia of a group of five or more people, namely a group of eighty four people who were non-citizens and travelled to Australia without visas that were in effect, and they did so reckless as to whether those people had a lawful right to come to Australia".
The now-repealed s 232A(1) was in the following terms:
"(1) A person who:
(a) organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of 5 or more people to whom subsection 42(1) applies; and
(b) does so reckless as to whether the people had, or have, a lawful right to come to Australia;
is guilty of an offence punishable on conviction, by imprisonment for 20 years or 2,000 penalty units, or both".
At the appellants' trial in the…
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- Sunada v R; Jaru v R [2012] NSWCCA 187
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- [2012] NSWCCA 187
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CaseChat Overview and Summary
The central legal issues the court had to decide were whether the trial judge's direction to the jury was correct and, if not, whether this error warranted a re-trial. The appellants contended that the prosecution must prove they knew the intended destination was part of Australia, as per the statutory definition under the Migration Act 1958 (Cth). The court considered whether the omission of this element from the jury direction constituted a significant error that could not be considered harmless.
The court held that the trial judge's direction to the jury did indeed err in omitting the requirement that the appellants knew the intended destination was part of Australia. The court acknowledged that this was a significant error, as the knowledge of the intended destination is a critical element of the offence. The court concluded that this error could not be considered harmless and that it likely affected the verdict. Consequently, the court allowed the appeals, quashed the convictions, and ordered a re-trial. The appellants' convictions were set aside, and the case was remitted to the lower court for a new trial to ensure that all elements of the offence were properly considered by the jury.
Orders
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