SUNADA v R; JARU v R [2012] NSWCCA 187

SUNADA v R; JARU v R [2012] NSWCCA 187

Because PJ v R was not plainly wrong and concerned materially indistinguishable legislation, the Crown was required to prove that the appellants knew the intended destination was part of Australia. The trial judge's direction to the contrary was erroneous and significant, the Crown did not contend that no substantial miscarriage of justice occurred, and the convictions had to be quashed. A re-trial was not appropriate because the appellants had already served a large proportion of their sentences and would likely serve more than their non-parole periods before any re-trial occurred.

Jurisdiction
Australia
Judgment Date
27 August 2012
Procedural Posture
Criminal Appeal Against Conviction and Sentence / Appeal in the Court of Criminal Appeal From Convictions in the District Court
Outcome
Appeals upheld; convictions quashed; verdicts of acquittal entered.
Legal Topics
['aggravated People Smuggling' 'elements of Offence' 'jury Directions' 'miscarriage of Justice' 'retrial' 'acquittal']
['criminal Law' 'migration Law'] ['aggravated People Smuggling' 'elements of Offence' 'jury Directions' 'miscarriage of Justice' 'retrial' 'acquittal']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction and Sentence / Appeal in the Court of Criminal Appeal From Convictions in the District Court

Legal Issues

  1. 1 ['Whether the trial judge erred in directing the jury that the Crown did not have to prove that the appellants knew Ashmore Reef was part of Australia.' 'Whether the convictions for offences under s 232A(1) of the Migration Act 1958 (Cth) should be quashed because of the misdirection.' 'Whether a re-trial should be ordered or verdicts of acquittal entered.']

Ratio Decidendi

Because PJ v R was not plainly wrong and concerned materially indistinguishable legislation, the Crown was required to prove that the appellants knew the intended destination was part of Australia. The trial judge's direction to the contrary was erroneous and significant, the Crown did not contend that no substantial miscarriage of justice occurred, and the convictions had to be quashed. A re-trial was not appropriate because the appellants had already served a large proportion of their sentences and would likely serve more than their non-parole periods before any re-trial occurred.

Court Disposition

Appeals upheld; convictions quashed; verdicts of acquittal entered.

Orders

  • ['The convictions of the appellants of offences under s 232A(1) of the Migration Act 1958 at the trial concluding on 23 September 2011 be quashed.' 'Verdicts of acquittal of the appellants be entered in relation to the charges of those offences.']