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9.1.2-c11-s1 | 9.1.2 Absolute liability as to quantity | ## Absolute liability as to quantity
1. Absolute liability applies to the quantity requirements. This means that there is no associated fault element (ss 307.1(3), 307.2(3), 307.3(3)). | null |
9.1.2-c12-s1 | 9.1.2 Provisions relevant to determining quantity | ## Provisions relevant to determining quantity
1. The following provisions may be relevant in determining if the quantity requirements are satisfied:
- Combining different parcels on the same occasion – s 311.1
- Combining parcels from multiple offences – s 311.8
- Combining parcels from organised commercial ac... | [^3]: Section 312.1(1)(b) purports to provide another means by which the prosecution can prove the quantity requirement, however it refers to division 314 which is now repealed (effective 28 May 2013).
[^4]: Section 312.2(5)(b) purports to provide another means by which the requisite fraction can be calculated, however... |
9.1.2-c12-s2 | 9.1.2 Provisions relevant to determining quantity | - The particulars of the individual offences alleged to have been committed on different occasions must be set out in the charge (s 311.22(1)).
- The same parcel of controlled drugs must not be counted more than once (s 311.22(2)). For example if an accused deals with the substance in connection to its importation one... | [^3]: Section 312.1(1)(b) purports to provide another means by which the prosecution can prove the quantity requirement, however it refers to division 314 which is now repealed (effective 28 May 2013).
[^4]: Section 312.2(5)(b) purports to provide another means by which the requisite fraction can be calculated, however... |
9.1.2-c12-s3 | 9.1.2 Provisions relevant to determining quantity | 17. When a border controlled drug is within a mixture, the prosecution must prove that the mixture contains the relevant quantity of the border controlled drug in pure form (s 312.1(3)(a)).[^3]
## E. Calculating quantities where different kinds of substances are involved
18. If the accused is charged with a singl... | [^3]: Section 312.1(1)(b) purports to provide another means by which the prosecution can prove the quantity requirement, however it refers to division 314 which is now repealed (effective 28 May 2013).
[^4]: Section 312.2(5)(b) purports to provide another means by which the requisite fraction can be calculated, however... |
9.1.2-c13-s1 | 9.1.2 Defences and alternative verdicts | ## Defences and alternative verdicts
1. The following defences/alternative verdicts apply to Division 307:
1. Lack of commercial intent (ss 307.2(4), 307.3(3));
2. Reasonable belief that conduct was excused by or under state law (s 313.2);
3. Proof of alternative offence (s 313.3).
2. The other defences and alte... | null |
9.1.2-c13-s2 | 9.1.2 Defences and alternative verdicts | - The quantity imported or exported was less than commercial (c.f if the quantity is commercial and no defence of lack of commercial intent is available: s 307.1);
- The defendant had no commercial intent (see ss 307.2(4), 307.3(3)); and
- The substance s/he have imported or exported was a determined border controlle... | null |
9.1.2-c13-s3 | 9.1.2 Defences and alternative verdicts | 9. No criminal responsibility exists if:
1. At the time of the conduct constituting the offence, the person was under a mistaken but reasonable belief that the conduct was justified or excused by or under a law of the Commonwealth or of a State or Territory; and
1. Had the conduct been so justified or excused... | null |
9.1.2-c13-s4 | 9.1.2 Defences and alternative verdicts | 15. If the jury is not satisfied that the defendant is guilty of the alleged offence but is satisfied, beyond reasonable doubt, that the defendant is guilty of another offence against Part 9.1, they may find the defendant not guilty of the alleged offence but guilty of the other offence (s 313.3).
16. The maximum pena... | null |
9.1.2.1-c1-s1 | 9.1.2.1 Charge: Importing/Exporting Marketable or Commercial Quantities of Border Controlled Drugs and Border Controlled Plants | # 9.1.2.1 Charge: Importing/Exporting Marketable or Commercial Quantities of Border Controlled Drugs and Border Controlled Plants
This charge may be used when the accused is charged with the following:
i) Importing or exporting commercial quantities of border controlled drugs or border controlled plants under s 307.1... | null |
9.1.2.1-c2-s1 | 9.1.2.1 Import | ## Import
The first element the prosecution must prove is that the accused imported a substance.
An accused imports a substance if they have:
1. Brought the substance into Australia; or
2. Dealt with the substance in connection with its importation
[If the accused is alleged to have brought the substance into Aust... | [^2]: If attempted importation is left as an alternative, add the following: Such conduct may, however, be considered as part of the charge of attempting to import a (commercial/marketable quantity of a) border controlled drug. For that charge, you might find that the accused attempted to deal with the [identify releva... |
9.1.2.1-c2-s2 | 9.1.2.1 Import | The second matter the prosecution must prove is that the dealings were in connection with the importation of the substance. Importation is an ongoing process, including but not limited to packaging the substance for importation, the transport of the substance to Australia and the transfer of imported goods into storage... | [^2]: If attempted importation is left as an alternative, add the following: Such conduct may, however, be considered as part of the charge of attempting to import a (commercial/marketable quantity of a) border controlled drug. For that charge, you might find that the accused attempted to deal with the [identify releva... |
9.1.2.1-c3-s1 | 9.1.2.1 Intention | ## Intention
The second element the prosecution must prove is that the accused intended to import the substance.
This means that the accused meant to import the substance.
Intention is a state of mind. To determine the accused’s state of mind, the prosecution invites you to draw an inference as to the accused’s stat... | null |
9.1.2.1-c4-s1 | 9.1.2.1 Border controlled drug/border controlled plant | ## Border controlled drug/border controlled plant
The third element the prosecution must prove is that the substance imported was a border controlled drug.
You have heard evidence from [identify relevant witness] that the imported substance was [identify relevant border controlled drug]. I direct you as a matter of l... | null |
9.1.2.1-c5-s1 | 9.1.2.1 Recklessness | ## Recklessness
Warning! As noted in 9.1.2 Importing/Exporting Border Controlled Drugs and Plants, there is very little guidance on the operation of this element. Judges are encouraged to discuss this part of the direction with counsel and seek submissions.
The fourth element that the prosecution must prove is that t... | [^3]: If the prosecution cannot or does not particularise the border controlled drug in question, references to “[insert relevant substance]” (apart from in the second paragraph of this part of the charge) should be replaced with “a border controlled drug”. See Nelson v DPP (Cth) (2014) 44 VR 461; [2014] VSCA 217 and W... |
9.1.2.1-c6-s1 | 9.1.2.1 Quantity | ## Quantity
The fifth element that the prosecution must prove is that NOA imported a [commercial/marketable] quantity of a border controlled drug.
I direct you as a matter of law that [specify relevant quantity] is a [commercial/marketable] quantity of [identify relevant border controlled drug]. The prosecution does ... | null |
9.1.2.1-c6-s2 | 9.1.2.1 Quantity | I have given you a document, [identify relevant document] which lists the different times when NOA is alleged to have imported a border controlled drug, and the quantity s/he is alleged to have imported. You will see that each of these occasions are no more than thirty days apart. If the prosecution has proved that NOA... | null |
9.1.2.1-c6-s3 | 9.1.2.1 Quantity | [If the prosecution relies on the proportions of multiple border controlled drugs, add the following shaded section.]
The prosecution has argued the accused imported more than one kind of border controlled drug. Specifically: [identify relevant border controlled drugs and quantities]. If you are satisfied that NOA imp... | null |
9.1.2.1-c6-s4 | 9.1.2.1 Quantity | ## Importing marketable quantities of border controlled drugs
[If the accused has been charged with importing a commercial quantity of a border controlled drug and importing a marketable quantity is available as an alternative verdict, add the following shaded section.]
I must also direct you about the crime of impor... | null |
9.1.2.1-c6-s5 | 9.1.2.1 Quantity | ## Importing border controlled drugs
[If importing a border controlled drug is available as an alternative verdict, add the following shaded section.]
I must also direct you about the crime of importing a border controlled drug. This is an alternative to the offence of importing a [commercial/marketable] quantity of ... | null |
9.1.2.1-c7-s1 | 9.1.2.1 Defences | ## Defences
[Insert directions on any relevant ‘general’ defences under the Criminal Code.]
[The following defences specific to Part 9.1 may also be relevant.] | null |
9.1.2.1-c7-s2 | 9.1.2.1 Defences | ## Lack of commercial intent
[If the accused has been charged with importing a marketable quantity of border controlled drugs, and the evidence raises the issue of whether the defendant lacked a commercial intent, add the following shaded section.]
NOA has argued s/he neither intended to sell, nor believed that anoth... | null |
9.1.2.1-c7-s3 | 9.1.2.1 Defences | The offence of importing a border controlled drug without commercial intent is very similar to the offence of importing a marketable quantity of a border controlled drug. There are, however, two important differences: there is no quantity requirement and it is not open to the accused to argue they did not intend to sel... | null |
9.1.2.1-c7-s4 | 9.1.2.1 Defences | ## Reasonable belief that conduct was excused by or under state law
[If the evidence raises the issue of whether the accused had a reasonable belief that the conduct was justified or excused by or under a law, add the following shaded section.]
The defence has argued that NOA was under a mistaken but reasonable belie... | null |
9.1.2.1-c8-s1 | 9.1.2.1 Summary | ## Summary
To summarise before you can find NOA guilty of importing a [commercial/marketable] quantity of a border controlled drug, the prosecution must prove to you beyond reasonable doubt:
One – the accused imported a substance.
Two – the accused intended to import the substance.
Three – the substance imported wa... | null |
9.1.2.2-c1-s1 | 9.1.2.2 Checklist: Importing Marketable or Commercial Quantities of Border Controlled Drugs | # 9.1.2.2 Checklist: Importing Marketable or Commercial Quantities of Border Controlled Drugs
This checklist can be used where it is alleged the accused imported a commercial or marketable quantity of a border controlled drug.
Before you can convict the accused of importing a [commercial/marketable] quantity of a bor... | null |
9.1.2.2-c1-s2 | 9.1.2.2 Checklist: Importing Marketable or Commercial Quantities of Border Controlled Drugs | 1. Imported a substance
1. 1. Has the prosecution proved that the accused imported a substance?
1. Consider: Did the accused either:
2. a) Bring the substance into Australia; or
3. b) Deal with the substance in connection with its importation?
1. If Yes, then go to 2
2. If No, then the accused is not guilty of im... | null |
9.1.2.2-c1-s3 | 9.1.2.2 Checklist: Importing Marketable or Commercial Quantities of Border Controlled Drugs | 13. If Yes, then the accused is guilty of importing a [commercial/marketable] quantity of a border controlled drug (as long as you also answered Yes to Questions 1, 2, 3 and either 4.1, 4.2 or 4.3)
14. If No, then the accused is not guilty of importing a [commercial/marketable] quantity of a border controlled drug | null |
9.1.2.2-c1-s4 | 9.1.2.2 Checklist: Importing Marketable or Commercial Quantities of Border Controlled Drugs | Last updated: 23 June 2025 | null |
9.1.2.3-c1-s1 | 9.1.2.3 Charge: Importing/Exporting Border Controlled Drugs and Border Controlled Plants | # 9.1.2.3 Charge: Importing/Exporting Border Controlled Drugs and Border Controlled Plants
This charge may be used when the accused is charged with the following:
i) Importing or exporting border controlled drugs or border controlled plants under s 307.3
ii) Importing or exporting border controlled drugs or border c... | null |
9.1.2.3-c2-s1 | 9.1.2.3 Import | ## Import
The first element the prosecution must prove is that the accused imported a substance.
An accused imports a substance if they have:
i) Brought the substance into Australia; or
ii) Dealt with the substance in connection with its importation.
[If the accused is alleged to have brought the substance into Au... | [^2]: If attempted importation is left as an alternative, add the following: Such conduct may, however, be considered as part of the charge of attempting to import a (commercial/marketable quantity of a) border controlled drug. For that charge, you might find that the accused attempted to deal with the [*identify relev... |
9.1.2.3-c2-s2 | 9.1.2.3 Import | The second matter the prosecution must prove is that the dealings were in connection with the importation of the substance. Importation is an ongoing process, including but not limited to packaging the substance for importation, the transport of the substance to Australia and the transfer of imported goods into storage... | [^2]: If attempted importation is left as an alternative, add the following: Such conduct may, however, be considered as part of the charge of attempting to import a (commercial/marketable quantity of a) border controlled drug. For that charge, you might find that the accused attempted to deal with the [*identify relev... |
9.1.2.3-c3-s1 | 9.1.2.3 Intention | ## Intention
The second element the prosecution must prove is that the accused intended to import the substance.
This means that the accused meant to import the substance.
Intention is a state of mind. To determine the accused’s state of mind, the prosecution invites you to draw an inference as to the accused’s stat... | null |
9.1.2.3-c4-s1 | 9.1.2.3 Border controlled drug/border controlled plant | ## Border controlled drug/border controlled plant
The third element the prosecution must prove is that the substance imported was a border controlled drug.
You have heard evidence from [identify relevant witness] that the imported substance was [identify relevant border controlled drug]. I direct you as a matter of l... | null |
9.1.2.3-c5-s1 | 9.1.2.3 Recklessness | ## Recklessness
Warning! As noted in 9.1.2 Importing/Exporting Border Controlled Drugs and Plants, there is very little guidance on the operation of this element. Judges are encouraged to discuss this part of the direction with counsel and seek submissions.
The fourth element that the prosecution must prove is that t... | [^3]: If the prosecution cannot or does not particularise the border controlled drug in question, references to “[insert relevant substance]” (apart from in the second paragraph of this part of the charge) should be replaced with “a border controlled drug”. See Nelson v DPP (Cth) (2014) 44 VR 461; [2014] VSCA 217 and W... |
9.1.2.3-c6-s1 | 9.1.2.3 Defences | ## Defences
[Insert directions on any relevant ‘general’ defences under the Criminal Code.]
[The following defences specific to Part 9.1 may also be relevant.] | null |
9.1.2.3-c6-s2 | 9.1.2.3 Defences | ## Lack of commercial intent
[If the accused has been charged with importing border controlled drugs, and the defendant has argued a lack of commercial intent, add the following shaded section.]
NOA has argued s/he neither intended to sell, nor believed that another person intended to sell any of the [identify releva... | null |
9.1.2.3-c6-s3 | 9.1.2.3 Defences | One – the accused imported a substance.
Two – the accused intended to import the substance.
Three – the substance imported was a border controlled drug.
Four – the accused was reckless as to the substance imported being a border controlled drug.
You will remember my earlier directions about these four elements. If ... | null |
9.1.2.3-c6-s4 | 9.1.2.3 Defences | ## Reasonable belief that conduct was excused by or under state law
[If the evidence raises the issue of whether the accused had a reasonable belief that the conduct was justified or excused by or under a law, add the following shaded section.]
The defence has argued that NOA was under a mistaken but reasonable belie... | null |
9.1.2.3-c7-s1 | 9.1.2.3 Summary | ## Summary
To summarise before you can find NOA guilty of [importing a border controlled drug/importing a border controlled drug with no defence of lack of commercial intent], the prosecution must prove to you beyond reasonable doubt:
One – the accused imported a substance.
Two – the accused intended to import the s... | null |
9.1.2.4-c1-s1 | 9.1.2.4 Checklist: Importing Border Controlled Drugs | # 9.1.2.4 Checklist: Importing Border Controlled Drugs
This checklist can be used where it is alleged the accused imported a border controlled drug.
Before you can convict the accused of importing a border controlled drug, there are four elements that the prosecution must prove beyond reasonable doubt:
1. The accuse... | null |
9.1.2.4-c1-s2 | 9.1.2.4 Checklist: Importing Border Controlled Drugs | 1. Imported a substance
1. 1. Has the prosecution proved that the accused imported a substance?
1. Consider: Did the accused either:
2. a) Bring the substance into Australia; or
3. b) Deal with the substance in connection with its importation?
1. If Yes, then go to 2
2. If No, then the accused is not guilty of im... | null |
9.2-c1-s1 | 9.2 People Smuggling (Basic Offence) | # 9.2 People Smuggling (Basic Offence)
## Overview
1. The Migration Act 1958 (Cth)[^1] contains the following four people smuggling offences, which commenced operation on 1 June 2010:
- People smuggling (s 233A);
- Aggravated people smuggling (exploitation or danger) (s 233B);
- Aggravated people smuggling (... | [^1]: Unless otherwise stated, all references to legislation are to Commonwealth legislation. |
9.2-c2-s1 | 9.2 Elements | ## Elements
1. The offence of people smuggling has the following 5 elements:
1. The accused organised or facilitated the bringing or coming to Australia of a second person, or the entry or proposed entry of a second person into Australia;
2. The accused did so intentionally;
3. The second person was a non-citizen... | [^2]: Consequently, the appropriate fault element is intention: Criminal Code Act 1995 s 5.6(1). See the discussion of the second element below for further information.
[^3]: While successful entry into Australia is not an element of the crime, it may be relevant to sentencing: R v Ahmad (2012) 31 NTLR 38.
[^4]: Conseq... |
9.2-c2-s2 | 9.2 Elements | 7. The words "organise" and "facilitate" are active verbs, describing conduct directed at producing a result or outcome. They require the accused’s conduct to have been directed at the purpose of bringing about the arrival of the relevant passengers at, or their entry into, Australia (PJ v R (2012) 36 VR 402).
8. This... | [^2]: Consequently, the appropriate fault element is intention: Criminal Code Act 1995 s 5.6(1). See the discussion of the second element below for further information.
[^3]: While successful entry into Australia is not an element of the crime, it may be relevant to sentencing: R v Ahmad (2012) 31 NTLR 38.
[^4]: Conseq... |
9.2-c2-s3 | 9.2 Elements | 11. The second element the prosecution must prove is that the accused intentionally organised or facilitated the bringing or coming to Australia of a second person, or their entry or proposed entry into Australia (PJ v R (2012) 36 VR 402; Bahar v R (2011) 45 WAR 100; Criminal Code Act 1995 s 5.6(1)).
12. A person "int... | [^2]: Consequently, the appropriate fault element is intention: Criminal Code Act 1995 s 5.6(1). See the discussion of the second element below for further information.
[^3]: While successful entry into Australia is not an element of the crime, it may be relevant to sentencing: R v Ahmad (2012) 31 NTLR 38.
[^4]: Conseq... |
9.2-c2-s4 | 9.2 Elements | ## No lawful right of entry
20. The fourth element the prosecution must prove is that the second person had no lawful right to come to Australia (Migration Act 1958 s 233A).
21. This is a physical element which consists of a "circumstance in which conduct … occurs" (PJ v R (2012) 36 VR 402; Criminal Code Act 1995 s... | [^2]: Consequently, the appropriate fault element is intention: Criminal Code Act 1995 s 5.6(1). See the discussion of the second element below for further information.
[^3]: While successful entry into Australia is not an element of the crime, it may be relevant to sentencing: R v Ahmad (2012) 31 NTLR 38.
[^4]: Conseq... |
9.2-c2-s5 | 9.2 Elements | 26. Proof of intention or knowledge is also sufficient to prove this element (Criminal Code Act 1995 s 5.4(4)).
27. A person will have intention in relation to this element if he or she believes that the second person has no lawful right to come to Australia (Criminal Code Act 1995 s 5.2).
28. A person will have know... | [^2]: Consequently, the appropriate fault element is intention: Criminal Code Act 1995 s 5.6(1). See the discussion of the second element below for further information.
[^3]: While successful entry into Australia is not an element of the crime, it may be relevant to sentencing: R v Ahmad (2012) 31 NTLR 38.
[^4]: Conseq... |
9.2-c3-s1 | 9.2 Defences | ## Defences
1. Section 4A of the Migration Act 1958 states that Chapter 2 of the Criminal Code Act 1995 applies to all offences against that Act.[^7] Consequently, any of the defences set out in Part 2.3 of the Criminal Code Act 1958 may be relevant to a charge of people smuggling.
2. One commonly raised defence is... | [^7]: This section commenced operation on 19 September 2001. |
9.2-c4-s1 | 9.2 Extra-Territoriality | ## Extra-Territoriality
1. Section 233A operates extra-territorially. The offence may be complete before the other person arrives at or enters Australian territory (Migration Act 1958 s 228A; R v Ahmad (2012) 31 NTLR 38; R v Mahendra [2011] NTSC 57).
Last updated: 18 September 2013 | null |
9.2.1-c1-s1 | 9.2.1 Charge: People Smuggling (Basic Offence) | # 9.2.1 Charge: People Smuggling (Basic Offence)
This charge is designed for use where the accused is charged with the basic offence of people smuggling (*Migration Act 1958* s 233A).
If the accused is charged with the aggravated offence under *Migration Act 1958 s 233C*, use 9.3.1 Charge: Aggravated People Smuggling... | [^2]: If a different form of smuggling is in issue, this element will need to be modified accordingly. See 9.2 People Smuggling (Basic Offence) for information concerning the other ways in which this element may be satisfied. |
9.2.1-c2-s1 | 9.2.1 Intention | ## 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.[^3]
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... | [^3]: If a different form of smuggling is in issue, this element will need to be modified accordingly. |
9.2.1-c3-s1 | 9.2.1 Non-citizen | ## 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. | null |
9.2.1-c4-s1 | 9.2.1 No lawful right to come to Australia | ## 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.]
... | null |
9.2.1-c5-s1 | 9.2.1 Recklessness about lack of lawful right | ## 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 believ... | [^4]: If justification is open on the evidence, then this passage will need to be modified. |
9.2.1-c6-s1 | 9.2.1 Defences | ## Defences
[Insert directions on any relevant defences, such as Sudden or Extraordinary Emergency, here.] | null |
9.2.1-c7-s1 | 9.2.1 Summary | ## 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 law... | null |
9.2.2-c1-s1 | 9.2.2 Checklist: People Smuggling (Basic Offence) | # 9.2.2 Checklist: People Smuggling (Basic Offence)
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 A... | null |
9.2.2-c1-s2 | 9.2.2 Checklist: People Smuggling (Basic Offence) | 1. Facilitated a person’s entry
1. 1. Has the prosecution proved that the accused facilitated a person’s entry into Australia?
1. Consider – What did the accused do to help the person enter Australia?
1. If Yes then go to 2
2. If No, then the accused is not guilty of People Smuggling
2. Intention
2. 2. Has the pr... | null |
9.2.2-c1-s3 | 9.2.2 Checklist: People Smuggling (Basic Offence) | 14. If No, then the accused is not guilty of People Smuggling | null |
9.2.2-c1-s4 | 9.2.2 Checklist: People Smuggling (Basic Offence) | Last updated: 18 September 2013 | null |
9.3-c1-s1 | 9.3 People Smuggling (5 or More People) | # 9.3 People Smuggling (5 or More People)
## Overview
1. The Migration Act 1958 (Cth) contains the following four people smuggling offences, which commenced operation on 1 June 2010:
- People smuggling (s 233A);
- Aggravated people smuggling (exploitation or danger) (s 233B);
- Aggravated people smuggling (5... | null |
9.3-c2-s1 | 9.3 Availability of offence | ## Availability of offence
1. Following a direction by the Attorney-General under section 8(1) of the Director of Public Prosecutions 1983 (Cth), the Commonwealth Director of Public Prosecutions must not commence proceedings for this offence unless:
- the accused commits a repeat offence or may be convicted of a ... | null |
9.3-c3-s1 | 9.3 Elements | ## Elements
1. The offence of aggravated people smuggling (5 or more people) has the following 5 elements:
1. The accused organised or facilitated the bringing or coming to Australia of a group of at least 5 people, or the entry or proposed entry of a group of at least 5 people into Australia;
2. The accused did s... | null |
9.3.1-c1-s1 | 9.3.1 Charge: Aggravated People Smuggling (5 or More People) | # 9.3.1 Charge: Aggravated People Smuggling (5 or More People)
This charge is designed for use where the accused is charged with aggravated people smuggling (5 or more people) (*Migration Act 1958* s 233C).
If the accused is charged with the basic people smuggling offence under *Migration Act 1958 *s 233A, use 9.2.1 ... | [^2]: If a different form of smuggling is in issue, this element will need to be modified accordingly. See 9.2 People Smuggling (Basic Offence) for information concerning the other ways in which this element may be satisfied. |
9.3.1-c2-s1 | 9.3.1 Intention | ## Intention
The second element that the prosecution must prove is that when NOA [identify conduct], s/he intended to facilitate the entry of a group of 5 or more people into Australia.[^3]
For this element to be met, you must be satisfied that NOA knew that it was Australia that the group were entering, and meant to... | [^3]: If a different form of smuggling is in issue, this element will need to be modified accordingly. |
9.3.1-c3-s1 | 9.3.1 Non-citizen | ## Non-citizen
The third element the prosecution must prove is that at least 5 people in the group were not citizens of Australia when NOA facilitated their entry.
In this case, there is no dispute that [identify people] were non-citizens. | null |
9.3.1-c4-s1 | 9.3.1 No lawful right to come to Australia | ## No lawful right to come to Australia
The fourth element that the prosecution must prove is that at least 5 of the non-citizens 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 misconcept... | null |
9.3.1-c5-s1 | 9.3.1 Recklessness about lack of lawful right | ## Recklessness about lack of lawful right
The fifth element the prosecution must prove is that NOA was reckless about those non-citizens’ lack of a lawful right to come into Australia.
This element looks at what NOA knew or believed about the immigration status of those non-citizens. The prosecution will prove this ... | [^4]: If justification is open on the evidence, then this passage will need to be modified. |
9.3.1-c6-s1 | 9.3.1 Defences | ## Defences
[Insert directions on any relevant defences, such as Sudden or Extraordinary Emergency, here.] | null |
9.3.1-c7-s1 | 9.3.1 Summary | ## Summary
To summarise, before you can find NOA guilty of aggravated people smuggling the prosecution must prove to you beyond reasonable doubt:
One – that NOA facilitated the entry of a group of 5 or more people into Australia; and
Two – that NOA intended to facilitate the group’s entry; and
Three – that at least... | null |
9.3.2-c1-s1 | 9.3.2 Checklist: People Smuggling (5 or More People) | # 9.3.2 Checklist: People Smuggling (5 or More People)
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... | null |
9.3.2-c1-s2 | 9.3.2 Checklist: People Smuggling (5 or More People) | 1. Facilitated a person’s entry
1. 1. Has the prosecution proved that the accused facilitated the entry of a group of 5 or more people into Australia?
1. Consider – What did the accused do to help the group enter Australia?
1. If Yes then go to 2
2. If No, then the accused is not guilty of Aggravated People Smuggli... | null |
9.3.2-c1-s3 | 9.3.2 Checklist: People Smuggling (5 or More People) | 7. 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?
13. If Yes then the accused is guilty of Aggravated People Smuggling (a... | null |
9.3.2-c1-s4 | 9.3.2 Checklist: People Smuggling (5 or More People) | Last updated: 18 September 2013 | null |
9.4-c1-s1 | 9.4 Use of Carriage Service for Child Abuse Material | # 9.4 Use of Carriage Service for Child Abuse Material
1. Section 474.22 of the Criminal Code creates the statutory offence of using a carriage service for child abuse material.
## Commencement Information
1. Section 474.22 of the Code came into operation on 1 March 2005 and was inserted into the Act by Schedu... | null |
9.4-c2-s1 | 9.4 Overview of Elements | ## Overview of Elements
1. A person is guilty of the offence if:
1. the person intentionally:
1. accesses material; or
1. causes material to be transmitted to himself or herself; or
2. transmits, makes available, publishes, distributes, advertises or promotes material; or
3. solicits material; and
1. the perso... | null |
9.4-c3-s1 | 9.4 Intentionally engaged in conduct | ## Intentionally engaged in conduct
1. The first element the prosecution must prove is that the accused intentionally engaged in one of the forms of conduct listed in s 474.22(1)(a).
2. The Code proscribes four distinct forms of conduct. These are:
1. Accessing material;
1. Causing material to be transmitted to h... | null |
9.4-c4-s1 | 9.4 Use of a carriage service | ## Use of a carriage service
1. The second element is that the accused engaged in the conduct constituting the first element using a carriage service (Criminal Code s 474.22(1)(aa)).
2. Under the Dictionary to the Code, “carriage service” has the same meaning as in the Telecommunications Act 1997 (Cth).
3. Under s... | null |
9.4-c5-s1 | 9.4 Child abuse material | ## Child abuse material
1. The third element is that the material in question is “child abuse material”.
2. “Child abuse material” is defined as: | null |
9.4-c5-s2 | 9.4 Child abuse material | (a) material that depicts a person, or a representation of a person, who:
(i) is, or appears to be, under 18 years of age; and
(ii) is, or appears to be, a victim of torture, cruelty or physical abuse;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(b) ... | null |
9.4-c5-s3 | 9.4 Child abuse material | and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(f) material that describes:
(i) a sexual organ or the anal region of a person who is, or is implied to be, under 18 years of age; or
(ii) the breasts of a female person who is, or is implied to be, under 18... | null |
9.4-c5-s4 | 9.4 Child abuse material | 3. The definition of "a sexual pose” used in (c) and (e) is of uncertain scope, because Australian society permits certain activity which involves the sexualisation of young children, particularly in a commercial context. In addition, modern society treats certain child-like activity by adults as sexually suggestive. T... | null |
9.4-c6-s1 | 9.4 Recklessness | ## Recklessness
1. The fourth element is that the accused is reckless as to the material being child abuse material.
2. For the purpose of this offence, a person is reckless if:
1. He or she is aware of a substantial risk that the material will be child abuse material; and
1. Having regard to the circumstances kn... | null |
9.4-c7-s1 | 9.4 Defences | ## Defences
1. As well as the general defences provided for in Part 2.3 of the Criminal Code, four specific defences to s 474.22 are provided for in s 474.24.
2. For each defence under s 474.24, the accused carries the evidential burden to raise the defence (see Criminal Code s 13.3).
3. The explanatory memorandum... | null |
9.4-c7-s2 | 9.4 Defences | 4. A person is not criminally responsible for an offence against section 474.22 because of engaging in particular conduct if the conduct:
1. is of public benefit; and
1. does not extend beyond what is of public benefit (Criminal Code s 474.24(1)).
5. In determining whether this defence applies, the question whether ... | null |
9.4-c7-s3 | 9.4 Defences | 10. Finally, s 474.24(2)(d) protects legitimate research dealing with child pornography on the Internet, provided the authorisation of the AFP Minister is received. Persons who are caught with Internet child abuse material and who argue that they were involved in ‘personal research’ will not have a defence available to... | null |
9.4-c7-s4 | 9.4 Defences | ## Law enforcement defence
11. A person is not criminally responsible for an offence against section 474.22 if:
1. the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her duties; and
5. the conduct of the person is reasonable ... | null |
9.4-c8-s1 | 9.4 Defence for those manufacturing or developing, or updating, Content Filtering Technology | ## Defence for those manufacturing or developing, or updating, Content Filtering Technology
1. A person is not criminally responsible for an offence against section 474.22 if the person engages in the conduct in good faith for the sole purpose of manufacturing or developing, or updating, content filtering technology... | null |
9.4.1-c1-s1 | 9.4.1 Charge: Use of Carriage Service to Access Child Abuse Material | # 9.4.1 Charge: Use of Carriage Service to Access Child Abuse Material
This charge may be used when the accused is charged with using a carriage service to access child abuse material under s 474.22(1)(a)(i). Where other forms of conduct under s 474.22(1)(a) are alleged, such as transmitting or soliciting child abuse ... | [^2]: If the prosecution relies on a different form of conduct, this element must be modified accordingly.
[^3]: If the prosecution relies on a different form of conduct, this element must be modified accordingly. |
9.4.1-c2-s1 | 9.4.1 Carriage Service | ## Carriage Service
The second element that the prosecution must prove is that NOA accessed the material using a carriage service.
[Identify relevant service] is a carriage service. To prove this element, the prosecution must prove that NOA accessed the material using [identify relevant service].
[Discuss relevant e... | null |
9.4.1-c3-s1 | 9.4.1 Child abuse material | ## Child abuse material
The third element that the prosecution must prove is that the material is child abuse material.
The law provides many definitions of child abuse material. In this case, only one definition applies. You must consider these three questions.
One – Does it show a person under the age of 18 years?... | [^4]: This direction must be modified in cases where other aspects of the definition apply. See 9.4 Use of Carriage Service for Child Abuse Material for guidance. |
9.4.1-c4-s1 | 9.4.1 Age | ## Age
[If the age of the person depicted is in issue, add the following shaded section.]
As you have heard, the defence disputes that [identify relevant person] is or appears to be under 18.
Determining whether a person appears to be under 18 requires no special skill. For example, in your everyday life, you may lo... | null |
9.4.1-c5-s1 | 9.4.1 Recklessness | ## Recklessness
The fourth element relates to NOA’s state of mind.
The prosecution alleges that NOA was reckless as to whether the material [he/she] accessed was child abuse material. This means it must prove that NOA was aware of a substantial risk that the material was child abuse material and in the circumstances ... | null |
9.4.1-c6-s1 | 9.4.1 Defences | ## Defences
[*If any of the defences in s 474.24 are relevant, insert appropriate directions on that defence here**.*] | null |
9.4.1-c7-s1 | 9.4.1 Summary | ## Summary
To summarise, before you can find the accused guilty, you must be satisfied that the prosecution has proved the following four elements beyond reasonable doubt:
One – the accused intentionally accessed material.
Two – the accused used a carriage service to access this material.
Three – the material is ch... | null |
B9.4.1-c1-s1 | 9.4.1 Charge: Use of Carriage Service to Access Child Abuse Material | # 9.4.1 Charge: Use of Carriage Service to Access Child Abuse Material
This charge may be used when the accused is charged with using a carriage service to access child abuse material under s 474.22(1)(a)(i). Where other forms of conduct under s 474.22(1)(a) are alleged, such as transmitting or soliciting child abuse ... | [^2]: If the prosecution relies on a different form of conduct, this element must be modified accordingly.
[^3]: If the prosecution relies on a different form of conduct, this element must be modified accordingly. |
B9.4.1-c2-s1 | 9.4.1 Carriage Service | ## Carriage Service
The second element that the prosecution must prove is that NOA accessed the material using a carriage service.
[Identify relevant service] is a carriage service. To prove this element, the prosecution must prove that NOA accessed the material using [identify relevant service].
[Discuss relevant e... | null |
B9.4.1-c3-s1 | 9.4.1 Child abuse material | ## Child abuse material
The third element that the prosecution must prove is that the material is child abuse material.
The law provides many definitions of child abuse material. In this case, only one definition applies. You must consider these three questions.
One – Does it show a person under the age of 18 years?... | [^4]: This direction must be modified in cases where other aspects of the definition apply. See 9.4 Use of Carriage Service for Child Abuse Material for guidance. |
B9.4.1-c4-s1 | 9.4.1 Age | ## Age
[If the age of the person depicted is in issue, add the following shaded section.]
As you have heard, the defence disputes that [identify relevant person] is or appears to be under 18.
Determining whether a person appears to be under 18 requires no special skill. For example, in your everyday life, you may lo... | null |
B9.4.1-c5-s1 | 9.4.1 Recklessness | ## Recklessness
The fourth element relates to NOA’s state of mind.
The prosecution alleges that NOA was reckless as to whether the material [he/she] accessed was child abuse material. This means it must prove that NOA was aware of a substantial risk that the material was child abuse material and in the circumstances ... | null |
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