Usman v The Queen - [2022] WASCA 46

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   USMAN -v- THE QUEEN [2022] WASCA 46
CORAM:   BUSS P
VAUGHAN JA
HALL J

HEARD:   12 NOVEMBER 2021
DELIVERED          :   26 APRIL 2022
FILE NO/S:   CACR 132 of 2020
CACR 136 of 2020
CACR 137 of 2020
CACR 138 of 2020
CACR 139 of 2020
CACR 140 of 2020

BETWEEN: RUDI USMAN
Appellant

AND

THE QUEEN
Respondent

ON APPEAL FROM:
For File No:   CACR 132 of 2020
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STAUDE DCJ
File Number            :   IND 994 of 2010
For File No:   CACR 136 of 2020
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   WISBEY DCJ
File Number            :   IND 736 of 2010
For File No:   CACR 137 of 2020
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   SCOTT DCJ
File Number            :   IND 874 of 2011
For File No:   CACR 138 of 2020
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   GOETZE DCJ
File Number            :   IND 1253 of 2010
For File No:   CACR 139 of 2020
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   WISBEY DCJ
File Number            :   IND 674 of 2010
For File No:   CACR 140 of 2020
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   GOETZE DCJ
File Number            :   IND 359 of 2010

Catchwords:

Criminal law - Appeal against conviction - Federal offence - Each appellant convicted in the District Court of an offence against s 232A of the Migration Act 1958 (Cth) - Each appellant sentenced to mandatory minimum penalty for an adult - Whether each appellant's conviction and sentencing involved a miscarriage of justice in that the District Court did not have jurisdiction to convict and sentence each appellant because each appellant was under the age of 18 years at the time of the alleged offending

Legislation:

Children's Court of Western Australia Act 1988 (WA), s 19
Criminal Procedure Act 2004 (WA), s 126(1)(a)
Migration Act 1958 (Cth), s 232A, s 233C

Result:

In respect of each appeal:

Appellant's application for an extension of time to appeal granted
Appellant's application for leave to adduce additional evidence granted
Crown's application for leave to adduce additional evidence granted
Leave to appeal granted
Appeal allowed
Judgment of conviction set aside
Judgment of acquittal entered

Category: B

Representation:

Counsel:

Appellant	:	Mr P A Tierney
Respondent	:	Mr M D Howard SC & Mr A J C Mossop

Solicitors:

Appellant	:	Ken Cush & Associates
Respondent	:	Director of Public Prosecutions (Cth)

Case(s) referred to in decision(s):

Abdul v The Queen [2020] WASCA 34
Jasmin v The Queen [2017] WASCA 122; (2017) 51 WAR 505

JUDGMENT OF THE COURT:

Each appellant in CACR 132 of 2020 (Rudi Usman), CACR 136 of 2020 (Hamzah Gogo), CACR 137 of 2020 (Maikel Husa), CACR 138 of 2020 (Vandi), CACR 139 of 2020 (Muhammad Maleng) and CACR 140 of 2020 (Usman Ari) has applied for an extension of time to appeal and for leave to appeal…

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 Usman v The Queen

Details

AGLC: Usman v The Queen [2022] WASCA 46
Case: [2022] WASCA 46
Decision Date

CaseChat Overview and Summary

Rudi Usman, Hamzah Gogo, Maikel Husa, Vandi, Muhammad Maleng, and Usman Ari have each appealed against their convictions and sentences for facilitating the entry into Australia of five or more people to whom s 42(1) of the Migration Act 1958 (Cth) applied, reckless as to whether they had a lawful right to come to Australia, contrary to s 232A of the Act. Each appellant was charged on indictment, convicted, and sentenced in the District Court of Western Australia between 2010 and 2012. At the time of the offending, the offence carried a mandatory minimum penalty of 5 years' imprisonment with a minimum non-parole period of 3 years unless it was established, on the balance of probabilities, that the offender was aged under 18 years when the offence was committed. The appellants each argue that their conviction and sentencing involved a miscarriage of justice because the District Court did not have jurisdiction to convict and sentence them because they were under the age of 18 years at the time of the alleged offending.

The court had to decide whether each appellant's conviction and sentencing involved a miscarriage of justice because the District Court did not have jurisdiction to convict and sentence them because they were under the age of 18 years at the time of the alleged offending. The court found that the Crown had conceded that a miscarriage of justice had occurred because each appellant was under the age of 18 years at the time of the alleged offending. The court found that the additional evidence satisfied it, on the balance of probabilities, that each appellant was under the age of 18 years at the time of the offending. The court found that the District Court had no jurisdiction to deal with any of the appellants when a Judge of the District Court entered a judgment of conviction against each appellant and imposed sentence on him. Consequently, each appellant was sentenced on the basis that he was an adult and not by reference to the sentencing principles applicable to children. A substantial miscarriage of justice has occurred.

In respect of each appeal, the appellant's application for an extension of time to appeal is granted. The appellant's application for leave to appeal is granted. The appellant's application for leave to adduce additional evidence is granted. The Crown's application for leave to adduce additional evidence is granted. Leave to appeal is granted. The appeal is allowed. The judgment of conviction is set aside. A judgment of acquittal is entered.

Orders