R v Hungan [2000] NTSC 84

[2] 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 Ladjilu v Dalla Costa [1997] NTSC 81; (1997) 93 A Crim R 425, which appears, unfortunately, to be the only reported decision on this aspect of s233(1)(a) Migration Act.

"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.

[3]

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.

[4]

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.

[5]

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.

[6]

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.

[7]

I shall direct the jury accordingly.