Taru Ali v R - [2013] NSWCCA 211

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Taru Ali v R [2013] NSWCCA 211
Hearing dates: 29 July 2013
Decision date: 09 September 2013
Before: Johnson J at [1]
Price J at [2]
R A Hulme J at [3]
Decision:
Appeal against conviction dismissed

Catchwords: CRIMINAL LAW - offences - people smuggling - s 233C Migration Act - appellant crew on boat bound for Ashmore Reef from Indonesia with fifty-two passengers - trial judge directed that the necessary intention was that by steering to Ashmore Reef the appellant was facilitating the entry of the passengers into Australia - whether necessary to establish that the immediate destination was part of Australia or only that the ultimate destination was Australia - mention of particular destination does not create additional element of offence - evidence established knowledge that ultimate destination was Australia - no misdirection
Legislation Cited: Criminal Code Act 1995 (Cth)
Migration Act 1958 (Cth)
Cases Cited: Alomalu v R [2012] NSWCCA 255
PJ v The Queen [2012] VSCA 146; 268 FLR 99
Sunada v R; Jaru v R [2012] NSWCCA 187
The Queen v Ahmad [2012] NTCCA 1; (2012) 256 FLR 423
Category: Principal judgment
Parties: Ishak Daeng Taru Ali (Applicant)
Regina (Respondent)
Representation: Counsel:
Mr K H Averre (Applicant)
Ms W Abraham QC and Ms N Case (Crown)
Solicitors:
Catherine Hunter (Applicant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2011/121349
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-02-29 00:00:00

Before:

Woodburne DCJ

File Number(s):

2011/121349

Judgment

JOHNSON J: I agree with R A Hulme J.

PRICE J: I agree with R A Hulme J.

R A HULME J: Mr Ishak Daeng Taru Ali (the surname is Taru Ali) pleaded not guilty to a charge of "aggravated people smuggling" contrary to s 233C of the Migration Act 1958 (Cth). The maximum penalty prescribed for such an offence is imprisonment for 20 years or a fine of 2,000 penalty units, or both. The charge was described in the indictment as follows:

Between about 31 August 2010 and about 6 September 2010 in the seas between the Republic of Indonesia and the Territory of Ashmore and Cartier Islands, Australia, facilitated the bringing or coming to Australia of a group of at least five persons, namely a group of fifty-two (52) persons, who were non-citizens and who had no lawful right to come to Australia, and he did so reckless as to whether the said fifty-two (52) persons had a lawful right to come to Australia.

A trial before her Honour Judge Woodburne SC and a jury of twelve commenced on 6 February 2012 and concluded with a verdict of guilty being returned on 28 February 2012. On 29 February 2012, the learned judge sentenced the appellant to imprisonment for 5 years with a non-parole period of 3 years (the minimum required by s 236B of the Migration Act).

The appellant appeals only against his conviction and upon the sole ground that:

The trial…

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 Taru Ali v R

Details

AGLC: Taru Ali v R [2013] NSWCCA 211
Case: [2013] NSWCCA 211
Decision Date: 09 September 2013

CaseChat Overview and Summary

In this matter, the appellant, Taru Ali, faced charges of people smuggling under section 233C of the Migration Act. The incident involved the appellant and a crew operating a boat from Indonesia, carrying fifty-two passengers, with the intended destination being Ashmore Reef. The central issue was whether the appellant's actions constituted facilitating the entry of the passengers into Australia, specifically regarding the necessary intention to steer the boat to a location that was part of Australia. The case was heard and determined in the High Court of Australia.

The court was required to decide whether the prosecution needed to establish that the immediate destination was part of Australia or if it was sufficient to show that the ultimate destination was Australia. The court also needed to consider whether the mention of a particular destination, Ashmore Reef, created an additional element of the offence. Furthermore, the court had to assess the sufficiency of the evidence to prove that the appellant had the requisite knowledge that the ultimate destination was Australia. The appellant argued that the trial judge's direction on the necessary intention created a misdirection, which needed to be addressed.

The High Court found that the mention of a particular destination did not introduce an additional element to the offence under section 233C. The court held that it was sufficient to prove that the ultimate destination was Australia. The evidence presented at the trial established that the appellant was aware that the ultimate destination was Australia, which was enough to satisfy the requisite knowledge for the offence. Consequently, the court dismissed the appeal and found no misdirection in the trial judge's instructions. The decision confirmed that the necessary intention was correctly interpreted by the trial judge, and the evidence was adequate to support the conviction.

No additional orders were made by the court beyond dismissing the appeal and affirming the conviction. The court's reasoning clarified the legal standards for proving the necessary intention in people smuggling cases under section 233C of the Migration Act, providing guidance for future cases involving similar circumstances.

Orders