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9.2.1 - Charge: People Smuggling (Basic Offence)

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This charge is designed for use where the accused is charged with the basic offence of people smuggling (Migration Act 1958 s233A).

If the accused is charged with the aggravated offence under Migration Act 1958 s233C, use Charge: Aggravated People Smuggling (5 or more people) instead.

This charge is designed for use in cases where it is alleged that the accused facilitated a person’s entry into Australia. If a different form of smuggling is in issue, the Charge will need to be modified accordingly.

This charge is designed for use in cases where there is no issue regarding whether the person smuggled is a non-citizen who had no lawful right to come to Australia. Where those elements are in dispute, the Charge will need to be modified accordingly.

I must now direct you about the crime of people smuggling. To prove this crime, the prosecution must prove the following 5 elements beyond reasonable doubt:

One – the accused facilitated a person’s entry into Australia;

Two – the accused intended to facilitate that person’s entry into Australia;

Three – the person was a non-citizen;

Four – the person had no lawful right to come into Australia; and

Five – the accused was reckless about the person’s lack of a lawful right to come into Australia.

I will now explain each of these elements in more detail.

Facilitating entry

The first element that the prosecution must prove is the accused facilitated a person’s entry into Australia.[1]

In this case, it is alleged that NOA facilitated NOP’s entry into Australia by [describe alleged acts of facilitation].

[Discuss relevant evidence and/or arguments.]

Intention

The second element that the prosecution must prove is that when NOA [identify conduct], s/he intended to facilitate NOP’s entry into Australia.[2]

For this element to be met, you must be satisfied that NOA knew that it was Australia that NOP was entering, and meant to help him/her to enter.

[Where the prosecution seeks to rely on Kural reasoning, add the following shaded section]

One matter which might help you decide whether NOA intended to facilitate the group’s entry into Australia is whether NOA was aware that there was a significant chance that s/he was helping the group enter Australia.

If you accept that NOA was aware that there was a significant chance that s/he was helping the group enter Australia, that may help you draw the conclusion that NOA intended to facilitate the group’s entry into Australia. Remember, you must not look at pieces of evidence in isolation. Instead, you must decide, based on the evidence you accept, whether the prosecution has proved that NOA knew it was Australia that the group was entering and meant to help him/her to enter.

[Discuss relevant evidence and/or arguments.]

Non-citizen

The third element the prosecution must prove is that NOP was not a citizen of Australia when NOA facilitated his/her entry.

In this case, there is no dispute that NOP was a non-citizen.

No lawful right to come to Australia

The fourth element that the prosecution must prove is that NOP had no lawful right to come into Australia. As a matter of law, NOP did not have a lawful right to come into Australia.

[Judges may add the following section to address possible misconceptions about this element]

A person only has a lawful right to come to Australia if he or she holds a visa permitting entry, is covered by a relevant exemption, or is permitted by regulations to travel to Australia without a visa permitting entry.

This element is not in dispute.

Recklessness about lack of lawful right

The fifth element the prosecution must prove is that NOA was reckless about NOP’s lack of a lawful right to come into Australia.

This element looks at what NOA knew or believed about the immigration status of NOP. The prosecution will prove this element if NOA knew or believed that NOP did not have a lawful right to enter Australia. This element will also be proved if NOA was aware that there was a substantial risk that NOP did not have a lawful right to come into Australia and that in the circumstances as known to him/her, it was not justifiable to do what s/he did. In this case, it is difficult to think of circumstances in which it would be justifiable to ignore a substantial risk that the person had no lawful right to come into Australia.[3] The focus of this element is therefore whether NOA was aware that there was a substantial risk that NOP did not have a lawful right to come into Australia.

[Judges may add the following section to address possible misconceptions about this element]

It is not justifiable to take a risk that NOP had no lawful right to come to this country because NOA wanted to help NOP seek asylum, or because of any sympathy you might have for asylum seekers. Such matters are irrelevant to this element and you must put them out of your mind. You must instead look at the circumstances known to the accused and determine whether it was justifiable to take the risk that NOP had no lawful right to enter Australia.

[If relevant, add the following shaded section.]

It is not enough for the prosecution to prove that NOA was aware of a substantial risk that NOP did not have a lawful right to come into [describe relevant destination, e.g., Christmas Island]. S/he must have been aware of a significant risk that NOP had no lawful right to come into Australia.

[Discuss relevant evidence and/or arguments.]

Defences

[Insert directions on any relevant defences, such as Sudden or Extraordinary Emergency, here.]

Summary

To summarise, before you can find NOA guilty of people smuggling the prosecution must prove to you beyond reasonable doubt:

One — that NOA facilitated NOP’s entry into Australia; and

Two — that NOA intended to facilitate NOP’s entry; and

Three — that NOP was a non-citizen; and

Four — that NOP had no lawful right to come into Australia; and

Five – that NOA was reckless about NOP’s lack of a lawful right to come into Australia.

If you find that any of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of people smuggling.

Notes

[1] If a different form of smuggling is in issue, this element will need to be modified accordingly. See People Smuggling (Basic Offence) for information concerning the other ways in which this element may be satisfied.

[2] If a different form of smuggling is in issue, this element will need to be modified accordingly

[3] If justification is open on the evidence, then this passage will need to be modified.

Last updated: 1 July 2017

 

See Also

9.2 - People Smuggling (Basic Offence)

9.2.2 - Checklist: People Smuggling (Basic Offence)