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Court of Criminal Appeal 27 August 2012

SUNADA v R; JARU v R

[2012] NSWCCA 187

Public order & justice offences
CRIMINAL LAW APPEALS AGAINST CONVICTION AND SENTENCE ELEMENTS OF OFFENCE WHETHER MISCARRIAGE OF JUSTICE WHETHER ORDER FOR RE TRIAL APPROPRIATE

Citation: SUNADA v R; JARU v R [2012] NSWCCA 187
Court: NSW Court of Criminal Appeal
Date: 27 August 2012
Judge(s): Macfarlan JA; Price J; McCallum J

Background

Two appellants were convicted in the District Court of aggravated people smuggling under s 232A(1) of the Migration Act 1958 (Cth). The charges related to events between late January and early February 2010, during which the appellants were alleged to have facilitated the bringing of a group of 84 non-citizens to Ashmore Reef, an Australian territory, without valid visas.

At trial, the judge directed the jury on two occasions that the prosecution did not need to prove the appellants knew that Ashmore Reef was part of Australia. It was enough, the judge said, that the appellants knew they were heading to that location. Defence counsel objected to this direction, but the trial judge declined to alter it.

The appellants were sentenced on 27 September 2011 to five-year terms of imprisonment with three-year non-parole periods, both running from 4 February 2010, the date of their arrest. They remained in custody at the time of the appeal.

  • Whether the trial judge erred by directing the jury that the prosecution did not need to prove the appellants knew that their intended destination was part of Australia
  • Whether that error caused a substantial miscarriage of justice
  • Whether the appropriate remedy was a retrial or the entry of verdicts of acquittal

Decision

The Court of Criminal Appeal followed the Victorian Supreme Court of Appeal's decision in PJ v R [2012] VSCA 146, which held that an offence under s 233C of the Migration Act (the successor to s 232A) requires proof that the accused knew the intended destination was part of Australia. The Crown accepted the correctness of that decision and conceded that the trial judge's direction was erroneous and significant.

The Court applied the established principle that an intermediate appellate court should follow a decision of another Australian intermediate appellate court on materially identical legislation unless that decision is plainly wrong. The Court found PJ v R to be carefully reasoned and not plainly wrong, and declined to depart from it.

Because the Crown did not argue that no substantial miscarriage of justice had occurred, the convictions were quashed. The only remaining question was whether to order a retrial or enter acquittals.

The Court accepted the Crown's own submission that a retrial was not appropriate. By the time any retrial could take place, the appellants would already have served more time in custody than the non-parole periods originally imposed. The Crown offered no basis to suggest that any fresh conviction would result in a longer sentence, making a retrial an exercise that could not remedy the appellants' position. Verdicts of acquittal were accordingly entered.

Orders Made

  • Convictions of both appellants for offences under s 232A(1) of the Migration Act 1958, arising from the trial concluding on 23 September 2011, were quashed.
  • Verdicts of acquittal were entered in favour of both appellants in relation to those charges.

Key Takeaways

  • A conviction for aggravated people smuggling under the Migration Act requires proof that the accused knew the intended destination was part of Australia. It is not sufficient to prove only that the accused knew the name of the location.
  • The Court of Criminal Appeal confirmed the principle that it will follow a decision of another Australian intermediate appellate court interpreting materially identical Commonwealth legislation, unless that decision is plainly wrong.
  • Where the Crown concedes both that a jury direction was erroneous and that a substantial miscarriage of justice resulted, quashing of the conviction will follow.
  • In determining whether to order a retrial or enter an acquittal, the time already served by a convicted person is a relevant and potentially compelling consideration. Here, the appellants had nearly completed their non-parole periods, making a retrial practically futile as a remedy.
  • The Victorian Court of Appeal's reasoning in PJ v R [2012] VSCA 146 was treated as authoritative on the elements of the people smuggling offence under materially indistinguishable provisions.

Legislation and Cases Referenced

Legislation:
- Migration Act 1958 (Cth), ss 232A, 233C

Cases:
- PJ v R [2012] VSCA 146
- Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485
- Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89