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Zamudin v The Queen

Zamudin v The Queen

Case [2013] NSWCCA 120 22 May 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Zamudin v R [2013] NSWCCA 120
Hearing dates: 30 April 2013
Decision date: 22 May 2013
Before: Macfarlan JA at [1]
Campbell J at [41]
Barr AJ at [56]
Decision:
(1) Leave to appeal granted.
(2) Appeal allowed.
(3) Conviction quashed.
(4) Verdict of acquittal entered.

Catchwords: CRIMINAL LAW - Indonesian crewman on fishing vessel carrying 97 asylum seekers to Christmas Island convicted of people smuggling offence under s 233C(1) Migration Act 1958 (Cth) - whether Crown proved beyond reasonable doubt that applicant knew vessel or its passengers were destined for Australia - Crown bound by limited case run at trial - applicant gave evidence that told by those who engaged him not to ask where the vessel was going - relevance of lies by applicant - guilt not proved beyond reasonable doubt - conviction quashed
Legislation Cited: Criminal Appeal Act 1912
Migration Act 1958 (Cth)
Cases Cited: Alomalu v R [2012] NSWCCA 255
Bale v Mills [2011] NSWCA 226; 81 NSWLR 498
Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1
Edwards v The Queen [1993] HCA 63; 178 CLR 193
Fonseka v The Queen [2003] WASCA 111; 140 A Crim R 395
M v The Queen [1994] HCA 63; 181 CLR 487
Pereira v Director of Public Prosecutions [1988] HCA 57; 63 ALJR 1
R v Anderson [2001] NSWCCA 488; 127 A Crim R 116
R v Hillier [2007] HCA 13; 228 CLR 618
R v Razak [2012] QCA 244
Sunada v R [2012] NSWCCA 187
SKA v The Queen [2011] HCA 13; 243 CLR 400
Zolmin v R [2012] QCA 355
Zoneff v The Queen [2000] HCA 28; 200 CLR 234
Category: Principal judgment
Parties: Ardi Zam Zamudin (Applicant)
Regina (Respondent)
Representation: Counsel:
G Brady (Applicant)
M McHugh SC/C Lee (Respondent)
Solicitors:
Nyman Gibson Stewart (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2011/95028
Decision under appeal

Jurisdiction:

9101

Citation:

R v Ardi Zam Zamudin

Date of Decision:

2012-03-21 00:00:00

Before:

King DCJ

File Number(s):

2011/95028

Judgment

MACFARLAN JA: Following a trial before a judge and jury in March 2012, the applicant and two co-accused were convicted of the following offence:

"Between about 29 November 2010 and about 1 December 2010 in the seas between the Republic of Indonesia and the Territory of Christmas Island, Australia, [they] facilitated the bringing or coming to Australia of a group of at least five persons, namely a group of ninety-seven (97) persons, who were non-citizens and who had or have no lawful right to come to Australia, and they did so reckless as to whether the said ninety-seven persons had, or have, a lawful right to come to Australia.

Contrary to Section 233C(1) Migration Act 1958 (Law Part Code: 72121). "

The applicant seeks to appeal against his conviction upon the ground that the verdict against him of guilty was unreasonable and not supported by…

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 Zamudin v The Queen

Details

AGLC: Zamudin v The Queen [2013] NSWCCA 120
Case: [2013] NSWCCA 120
Decision Date: 22 May 2013

CaseChat Overview and Summary

Indonesian national Zamudin was the crewman of a fishing vessel that carried 97 asylum seekers to Christmas Island. He was convicted of a people smuggling offence under section 233C(1) of the Migration Act 1958 (Cth). The court had to determine whether the Crown had proven beyond reasonable doubt that Zamudin knew the vessel or its passengers were destined for Australia. Additionally, the court considered whether the Crown was bound by the limited case run at the trial and the relevance of lies Zamudin told during his testimony.

The court found that the Crown was bound by the limited case it presented at trial. The applicant had given evidence stating he was told by those who engaged him not to ask where the vessel was going. The court examined the relevance of the lies Zamudin told and concluded that the Crown had not proven beyond reasonable doubt that Zamudin knew the vessel or its passengers were destined for Australia. The court found that Zamudin's guilt had not been established beyond reasonable doubt, and his conviction was quashed.

The court's reasoning was based on the evidence presented, the Crown's limited case, and the applicant's testimony. The lies told by Zamudin were considered, but the court found that they did not prove his knowledge of the vessel's destination. The court's decision hinged on the Crown's inability to prove beyond reasonable doubt that Zamudin knew the vessel or its passengers were destined for Australia.

The final orders of the court were to quash Zamudin's conviction for the people smuggling offence under section 233C(1) of the Migration Act 1958 (Cth). The court found that the Crown had not proven beyond reasonable doubt that Zamudin knew the vessel or its passengers were destined for Australia, and therefore, the conviction could not stand.

Orders