The Queen v Hungan Summary

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:

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;”.

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.

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.
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.
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.
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.
I shall direct the jury accordingly.

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CaseChat Overview and Summary

In the case of The Queen v Hungan, the defendant, Ampi Hungan, was charged under section 233(1)(a) of the Migration Act with bringing a non-citizen to Australia under circumstances that might reasonably have been inferred as intending to enter the country in contravention of the Act. The case was heard in the Supreme Court of the Northern Territory, with Angel A/CJ presiding over the trial. The primary issue for the court was the interpretation of the requisite mental element of the charge, specifically whether the defendant needed to have knowledge that the person was a non-citizen intending to enter Australia unlawfully, or if it was sufficient to show that the defendant's actions could reasonably lead to such an inference.

The court considered the interpretation of section 233(1)(a) of the Migration Act, focusing on the phrase "from which it might reasonably have been inferred." Angel A/CJ concluded that the section was directed at culpability through negligence or recklessness rather than conscious wrongdoing or illegality, and thus required an objective test. The court held that the jury should assess whether a reasonable person, given the circumstances and knowledge of the defendant at the time, would have inferred that the non-citizen intended to enter Australia unlawfully. This approach was deemed more appropriate than requiring the defendant to have actual knowledge of the non-citizen's status or intent. The court decided that the jury should be directed accordingly.

Following this reasoning, Angel A/CJ directed the jury to consider the objective circumstances of the case and the state of knowledge of the defendant at the time of the alleged offence. The court provided specific instructions to ensure that the jury would properly assess the defendant's actions under an objective standard rather than requiring proof of actual knowledge. The outcome of this decision ensured that the trial proceeded based on a clear understanding of the legal standards applicable to the charge against the defendant.

The Queen v Hungan

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established