Sunada v R; Jaru v R - [2012] NSWCCA 187

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 J

Decision: 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 146

Texts 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…

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 Sunada v R; Jaru v R

Details

AGLC: Sunada v R; Jaru v R [2012] NSWCCA 187
Case: [2012] NSWCCA 187
Decision Date: 27 August 2012

CaseChat Overview and Summary

In the case of Sunada v R; Jaru v R, the appellants, Sunada and Jaru, were convicted of the offence of aggravated people smuggling, specifically involving the smuggling of at least five persons. The matter was heard in the High Court of Australia, where both appellants appealed against their conviction and sentence. They argued that the trial judge erred in directing the jury that the prosecution did not need to prove they knew the intended destination was part of Australia, and that this error caused a miscarriage of justice.

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