The Queen v Hungan

[2000] NTSC 84

The Queen v Hungan [2000] NTSC 84

PARTIES:THE QUEEN

v

AMPI HUNGAN

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL

FILE NO:SCC 9928265

DELIVERED:  4 October 2000

HEARING DATES:  2, 3, 4 October 2000

JUDGMENT OF:  ANGEL A/CJ

REPRESENTATION:

Counsel:

Commonwealth Director of Public     P Elliott

Prosecutions:  

Accused:J Lewis

Solicitors:

Crown:Commonwealth Director of Public Prosecutions

Accused:NT Legal Aid Commission

Judgment category classification:           B

Judgment ID Number:  ang20006

Number of pages:  3

ang20006
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
SC 9928265

The Queen v Hungan [2000] NTSC 84

BETWEEN:

THE QUEEN

AND:

AMPI HUNGAN

EX TEMPORE REASONS FOR RULING

(Delivered 4 October 2000)

ANGEL A/CJ:

1. An issue has arisen in this trial between the parties as to the requisite mental element of the charge brought against the accused pursuant to s233(1)(a) Migration Act (Cwlth) and the form of the direction which should be given to the jury. 

S233(1)(a) Migration Act (Cwlth) provides:

“(1)   A person shall not take any part in:

(a)the bringing or coming to Australia of a non-citizen under circumstances from which it might reasonably have been inferred that the non-citizen intended to enter Australia in contravention of this Act;”.

1. At the trial of Husayni Bin Madi, unreported, before Riley J, an aide memoire was prepared and sent to the jury in respect of, inter alia, s233(1)(a) Migration Act.  The defence submits, in the present case, that the direction proposed and given in Madi properly sets out the elements of s233(1)(a).  Riley J followed a decision of this court in the case of Rutu and Ladjiluv Dalla Costa (1997) 93 A Crim R 425, which appears, unfortunately, to be the only reported decision on this aspect of s233(1)(a) Migration Act.

In that case, at p 431, the judge said:

“I also agree with the learned magistrate that although the prosecution must prove that the appellants knew that the persons they were bringing or assisting to be brought to Australia were non-citizens …… imports an objective test.”

Naturally, Mr Lewis for the accused relied on that passage and relied on the aide memoire of Riley J in the Bin Madi matter.

1. However, after considering the passage in the judgment of the judge in Rutu and Ladjilu v Dalla Costa, supra, with the usual reserve, I am of the opinion that it is in error and should not be followed.  S233(1)(a), I think, in contrast to s232A, is directed at culpable negligence or recklessness, not any conscious wrongdoing or illegality.  This is reflected in the respective penalties provided by the two sections.

2. The words “under circumstances from it might reasonably have been inferred” are expressed in the past tense and relate back to the acts of the accused in taking part in bringing to Australia a non-citizen.

3. The section requires an objective test.  The question is not whether the accused knew the person brought to Australia was a non-citizen, but, rather, first, whether the accused did take part in the bringing to Australia of a person who was a non-citizen and, secondly, whether the accused’s actions in so taking part occurred under circumstances from which it might reasonably have been inferred that the person was a non-citizen who intended to enter Australia in contravention of the Migration Act.

4. The latter element requires the jury to consider whether a reasonable person, in the circumstances and state of knowledge of the accused at the time of his impugned conduct, would have inferred that the person brought to Australia was a non-citizen who intended to enter Australia in contravention of the Migration Act.

5. I shall direct the jury accordingly. 

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