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9.3.2 - Checklist: People Smuggling (5 or More People)

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

1. The accused facilitated the entry of a group of 5 or more people into Australia; and

2. The accused intended to facilitate the group’s entry into Australia; and

3. At least 5 of the people in the group were non-citizens; and

4. At least 5 of the non-citizens had no lawful right to come into Australia; and

5. The accused was reckless about those non-citizens’ lack of a lawful right to come into Australia.

Facilitated a person’s entry

1. Has the prosecution proved that the accused facilitated the entry of a group of 5 or more people into Australia?

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

If Yes then go to 2

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

Intention

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

If Yes then go to 3

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

Non-Citizens

3. Has the prosecution proved that at least 5 members of the group were not citizens of Australia when the accused facilitated their entry?

If Yes then go to 4

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

No lawful right to come to Australia

4. Has the prosecution proved that at least 5 members of the group did not have a lawful right to come into Australia?

Consider – The 5 members of the group for this element must be the same as for the third element

Consider –The jury must be unanimous about the identity of the 5 members of the group.

If Yes then go to 5

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

Recklessness about lack of lawful right

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

If Yes then the accused is guilty of Aggravated 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 non-citizens did not have a lawful right to enter Australia?

If Yes then the accused is guilty of Aggravated 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 non-citizens 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 Aggravated 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 Aggravated People Smuggling

Last updated: 18 September 2013

See Also

9.3 - People Smuggling (5 or More People)

9.3.1 - Charge: Aggravated People Smuggling (5 or more people)