Christmas Island crabs flock to the sea once again

Running head: CASE STUDY
CASE STUDY
Name of the Student
Name of the University
Author Note

CASE STUDY
1
Citation
PJ v The Queen [2012] VSCA 146; (2012) 36 VR 402
Court
Supreme Court of Victoria, Court of Appeal
Name of Judges: Maxwell P, Redlich JA, Hansen JA
Date of hearing: 11 May 2012
Date of judgment: 29 June 20121
Material Facts
The applicant, Mr Jeky Payara, an Indonesian was held accused for smuggling people
in Australia under section 233C of the Migration Act 1958 (Cth), when a ship with 49
smuggled migrants were detained near the Christmas Island2.
Procedural History
The Commonwealth of Australia has been prosecuting people alleged of smuggling
people ever since it has made comprehensive legislations on migration law; a little late in
NSW since 2010.
The SIEV 187 vessel was detained at the Christmas Island on 20 September 2010 on
which the group of 49 unlawful migrants had arrived in Australia3. Pre-trial Judge, Maidment
J of the County Court of Victoria dismissed the argument of the legal counsel of Mr Payara
who had pointed out that his client had no intention to enter into Australia or rather he had no
1 "P J V The Queen [2012] VSCA 146 (29 June 2012)", Austlii Supreme Court Of Victoria - Court Of
Appeal (Webpage, 2012) <http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2012/146.html>.
2 PJ v The Queen [2012] VSCA 146.
3 Schloenhardt, Andreas, and Connor Davies. "Smugglers and Samaritans: Defences to people smuggling in
Australia." 2013: 954 UNSWLJ 36.

CASE STUDY
2
idea that they were heading towards Australia4. The defence counsel appealed before the
Supreme Court of Victoria, Court of Appeal against the interlocutory order.
Issue
First Issue
The major issue is the violation of the provisions migration law and the Criminal
Code (Cth) that restricts unauthorised people from entering into Australia, knowing the fact
that they are entering into the territory of Australia.
Additional Issue
It was also asked whether the smuggled migrants who came to Australia
‘unintentionally’ could be granted the status of refugee, thereby having the right to continue
staying in Australia lawfully.
Holding
It was proposed that the ‘fault element’ as held under the Criminal Code shall be one
of the most vital deciding factors for convicting people accused of the offence of ‘aggravated
people smuggling’ in Australia5. The concept of ‘intention’ was strongly discussed and it was
held that the person so accused must have intended to bring the people to Australia, being
fully aware of it6. Therefore, failure to prove this point would result in the acquittal of the
accused on the grounds of mistake of fact under the Criminal Code Act 1995 (Cth)7.
Reasons
The above holding was reached by the court on the basis of the statutory interpretation
of section 233C of the Migration Act 1958 (Cth). Section 233C(1)(a) of the said Act clearly
4 DPP v [P J] (Unreported, County Court of Victoria, Judge Maidment, 2 May 2012).
5 Criminal Code Act 1995 (Cth), Div 5, ch 2.
6 PJ v The Queen [2012] VSCA 146.
7 Criminal Code Act 1995 (Cth), s 9.