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9.2.2 - Checklist: People Smuggling (Basic Offence)

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Before you can convict the accused of people smuggling, there are five elements that the prosecution must prove beyond reasonable doubt:

1. The accused facilitated a person’s entry into Australia; and

2. The accused intended to facilitate that person’s entry into Australia; and

3. The person was a non-citizen; and

4. The person had no lawful right to come into Australia; and

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

Facilitated a person’s entry

1. Has the prosecution proved that the accused facilitated a person’s entry into Australia?

Consider – What did the accused do to help the person enter Australia?

If Yes then go to 2

If No, then the accused is not guilty of People Smuggling

Intention

2. Has the prosecution proved that NOA intended to facilitate a person’s entry into Australia?

If Yes then go to 3

If No, then the accused is not guilty of People Smuggling

Non-Citizen

3. Has the prosecution proved that the person was not a citizen of Australia when the accused facilitated his or her entry?

If Yes then go to 4

If No, then the accused is not guilty of People Smuggling

No lawful right to come to Australia

4. Has the prosecution proved that the person did not have a lawful right to come into Australia?

If Yes then go to 5

If No, then the accused is not guilty of People Smuggling

Recklessness about lack of lawful right

5.1. Has the prosecution proved that the accused knew that the person did not have a lawful right to enter Australia?

If Yes then the accused is guilty of People Smuggling (as long as
you also answered Yes to Questions 1, 2, 3 and 4)

If No, then go to 5.2

5.2 Has the prosecution proved that the accused believed that the person did not have a lawful right to enter Australia?

If Yes then the accused is guilty of People Smuggling (as long as
you also answered Yes to Questions 1, 2, 3 and 4)

If No, then go to 5.3

5.3. Has the prosecution proved that the accused was aware that there was a substantial risk that the person did not have a lawful right to come into Australia and knew that in the circumstances it was not justifiable to do what s/he did?

If Yes then the accused is guilty of People Smuggling (as long as
you also answered Yes to Questions 1, 2, 3 and 4)

If No, then the accused is not guilty of People Smuggling

Last updated: 18 September 2013

See Also

9.2 - People Smuggling (Basic Offence)

9.2.1 - Charge: People Smuggling (Basic Offence)