Sunada v R; Jaru v R
[2012] NSWCCA 187
•27 August 2012
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 District Court, the trial judge on two occasions directed the jury to the following effect:
"It is enough if the Crown can prove that the accused knew that they were coming to Ashmore Reef, however called. The Crown does not have to prove that they knew that it was part of Australia" (Summing-Up pp 12 and 17).
At the conclusion of the Summing-Up, counsel for Mr Sunada submitted to the trial judge, in the absence of the jury, that this direction was erroneous. His Honour declined to alter his direction.
In their grounds of appeal against conviction filed on 3 May 2012, the appellants contended that the trial judge's direction was erroneous. On 29 June 2012 the Victorian Supreme Court delivered judgment in PJ v R [2012] VSCA 146, holding that proof of an offence under s 233C of the Migration Act requires proof that the accused intended that relevant persons be brought to a destination that was a part of Australia and that the accused knew was a part of Australia ([5] and [44]). Section 233C was inserted into the Migration Act on 1 June 2010, at the time that s 232A was repealed. Section 233C(1) relevantly provides as follows:
"(1) A person (the first person) commits an offence if:
(a) the first person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of at least 5 persons (the other persons); and
(b) at least 5 of the other persons are non-citizens; and
(c) the persons referred to in paragraph (b) who are non-citizens had, or have, no lawful right to come to Australia".
There are differences between the repealed s 232A and the current 233C but the Crown submits that there is no presently relevant distinction. Indeed, in light of the decision in PJ v R, the Crown submits that the direction given here by the trial judge was erroneous, and significant. It does not submit that despite the misdirection, no substantial miscarriage of justice occurred. As a result, it submits that the appellants' appeals should be upheld and their convictions quashed.
As the Crown has pointed out, this Court should follow PJ v R, being a decision of another Australian intermediate appellate court on materially identical Commonwealth legislation, unless it is convinced that the decision is plainly wrong (Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485 at 492; Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at [134]). The Crown does not submit that PJ v R is wrong. Indeed it accepts its correctness. PJ v R is a carefully reasoned decision dealing comprehensively with issues arising out of legislation which, for present purposes, we regard as materially indistinguishable. As we do not consider the decision to be plainly wrong, we propose to follow it and quash the appellants' convictions.
The Crown submits that an order for a re-trial would not be appropriate and that this Court should enter verdicts of acquittal in favour of the appellants. It points particularly to the fact that the appellants have already served a large proportion of their sentences. On 27 September 2011 the appellants were sentenced to five year terms of imprisonment, with three year non-parole periods, both periods to date from 4 February 2010, when the appellants were taken into custody. As they remain in custody, they have completed almost two years and seven months of their three year non-parole periods. Some time would inevitably elapse before a re-trial took place and the Crown has advanced no reason why, if the appellants were convicted at that trial, their sentences would be any longer than those imposed at the first trial. Assuming they remained in custody pending a re-trial, before their re-trial occurred they would serve considerably more time in prison than the non-parole periods imposed on 27 September 2011.
This is a compelling reason to accept the Crown's submission that a re-trial should not be ordered. Accordingly, verdicts of acquittal should be entered.
The orders that the Court makes are 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.
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