Citation: Bin Sulaeman v R [2013] NSWCCA 283
Court: Court of Criminal Appeal (NSW)
Date: 14 November 2013
Judge(s): Beazley P, R A Hulme J, Bellew J
Background
The appellant was an Indonesian national convicted by jury of aggravated people smuggling under s 233C of the Migration Act 1958 (Cth), following an incident in October 2010 in which he captained an overloaded, leaking wooden vessel carrying 57 passengers without lawful right to enter Australia. The vessel was intercepted by the Royal Australian Navy approximately seven nautical miles inside Australian territorial waters near Christmas Island.
The appellant was sentenced to five years' imprisonment with a three-year non-parole period, both being the statutory minimum under s 236B of the Migration Act. A companion application for leave to appeal against sentence was abandoned after the High Court upheld the mandatory sentencing regime in Magaming v The Queen [2013] HCA 40.
The central dispute at trial concerned whether the appellant knew or believed the passengers were bound for Australia. Most other elements of the offence were not contested, including that he was steering the vessel and that the passengers had no lawful right to enter Australia.
Legal Issues
- Whether the trial judge erred in admitting an oral admission the appellant made to a Royal Australian Navy officer, where that admission was obtained using translation cards, and where objections had been raised under ss 85, 90, and 139 of the Evidence Act 1995 (NSW) on the grounds of unfairness, unreliability, and failure to adequately caution
- Whether new grounds of objection to the admission, not raised at trial, could be advanced on appeal, and how Rule 4 of the criminal appeal practice applied in those circumstances
- Whether the trial judge misdirected the jury on the elements of aggravated people smuggling, specifically on the required mental element of intention as to destination
Decision
Admissions via translation cards: The trial judge admitted evidence of the appellant's response to a translation card shown by a Navy boarding officer. The card asked a question concerning awareness of being in Australian waters. The Court of Criminal Appeal found no error in the admission. It was open on the facts to find, for the purposes of s 85, that the circumstances did not adversely affect the reliability or truth of the admission. On ss 90 and 139, the court found no House v The King error in the trial judge's exercise of discretion, including her reliance on the fact that a caution had been administered via the translation cards.
New grounds raised on appeal: The appellant sought to raise additional grounds of objection on appeal that had not been put to the trial judge. The court applied Rule 4, which limits the ability of appellants to rely on grounds not raised at trial, and confirmed the longstanding common law position that new grounds supporting an objection are generally not available on appeal. The court found no miscarriage of justice that would justify departing from this position.
Jury directions on the elements: The appellant argued the trial judge failed to direct the jury adequately on the circumstances in which Christmas Island's status as part of Australia would be relevant to proof of the required intention. The court rejected this. The Crown's case was put on the basis that the appellant intended to facilitate the passage of the passengers to Australia, and the evidence (from both passenger witnesses and the naval officer's account of the translation card exchange) supported that case. There was no realistic prospect the jury would have found the appellant aware only of Christmas Island as a destination while remaining unaware it was part of Australia. The court found no misdirection on the elements.
Orders Made
- Appeal against conviction dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that where a trial judge's admission of evidence under ss 85, 90, and 139 of the Evidence Act 1995 (NSW) involved factual findings reasonably open on the evidence, no appellate error arises unless House v The King principles are satisfied.
- A caution administered through translated cards, rather than orally in a language understood by the accused, can properly be taken into account when assessing the exercise of discretion under ss 90 and 139 of the Evidence Act.
- Under Rule 4 of the criminal appeal practice, an appellant who objected to evidence at trial on specific grounds generally cannot advance new grounds of objection on appeal, absent a miscarriage of justice.
- The Crown's case under s 233C of the Migration Act does not require proof that a defendant knew Christmas Island was part of Australia, where the evidence establishes the defendant's awareness that the passengers' intended destination was Australia more broadly.
- Sufficient evidence existed to support the jury's conclusion on destination-awareness where passenger witnesses attributed references to both "Australia" and "Christmas Island" to the appellant, and a naval officer gave evidence of an admission consistent with knowledge of being in Australian waters.
Legislation and Cases Referenced
Legislation:
- Migration Act 1958 (Cth), ss 233C, 236B
- Evidence Act 1995 (NSW), ss 85, 90, 139
- Crimes Act 1914 (Cth)
Cases:
- House v The King (1936) 55 CLR 499
- Magaming v The Queen [2013] HCA 40
- Bin Radimin v R; Bin Zakhria v R [2013] NSWCCA 220
- Em v The Queen [2007] HCA 46; (2007) 232 CLR 67
- Gately v The Queen [2007] HCA 55; (2007) 232 CLR 208
- Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1
- R v Button and Griffin [2002] NSWCCA 159; (2002) 54 NSWLR 455
- Alomalu v R [2012] NSWCCA 255
- Potts v R [2012] NSWCCA 229
- Aslett v R [2006] NSWCCA 49
- R v Abusafiah (1991) 25 NSWLR 531