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Bin Sulaeman v R

Bin Sulaeman v R

Case [2013] NSWCCA 283 14 November 2013

Admissibility of Evidence

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Court of Criminal Appeal

New South Wales

Case Title: Bin Sulaeman v R

Medium Neutral Citation: [2013] NSWCCA 283

Hearing Date(s): 1 October 2013

Decision Date: 14 November 2013

Before: Beazley P at [1]
R A Hulme J at [2]
Bellew J at [170]

Decision:
Appeal against conviction dismissed.

Catchwords: EVIDENCE - offence of aggravated people smuggling - evidence of admission made to officer of Royal Australian Navy boarding party - use of translation cards - objection taken at trial on ss 85, 90, and 139 - evidence admitted - asserted unfairness, unreliability and failure to adequately caution - findings of fact open with regard to s 85 that circumstances did not adversely affect truth of admissions - no House v The King error regarding reliance upon caution administered with translation cards as bearing against rejection of the admission for the purposes of ss 90 and 139 - decisions below not erroneous
CRIMINAL LAW - offences - people smuggling - s 233C Migration Act - appellant crew on boat found near Christmas Island with fifty-seven passengers - made admissions in response to translation card that indicated awareness of being in Australian waters - conversations with passengers on voyage to similar effect - trial judge directed that the necessary intention was awareness of passengers intended destination of Australia - proper directions about unreliability of conversations and admission - Crown case not reliant on proving that appellant aware Christmas Island was part of Australia - defence case simply that appellant going to entirely different destination in Indonesia - no misdirection on elements established
CRIMINAL LAW - appeals generally - practice and procedure - objection to admissions taken below on specific grounds - objection not upheld - further grounds raised in support of objection in appeal against ruling - application of Rule 4 where objection taken below but new grounds raised on appeal - consideration of general requirement that counsel make clear at trial the grounds on which particular rulings are sought - Rule 4 applies - common law practice generally contrary to reliance upon new grounds, subject to question of miscarriage of justice

Legislation Cited: Crimes Act 1914 (Cth)
Evidence Act 1995 (NSW)
Migration Act 1958 (Cth)

Cases Cited: Alomalu v R [2012] NSWCCA 255
Aslett v R [2006] NSWCCA 49
Bin Radimin v R; Bin Zakhria v R [2013] NSWCCA 220
Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1
Em v The Queen [2007] HCA 46; (2007) 232 CLR 67
FMJ v The Queen [2011] VSCA 308
Gately v The Queen [2007] HCA 55; (2007) 232 CLR 208
Hawkins v R (NSWCCA, 17 December 1992, unreported)
House v The King (1936) 55 CLR 499
Magaming v The Queen [2013] HCA 40
Maier v R (unreported, NSWCCA, 21 May 1996)
MIH v R [2007] NSWCCA 199
Newcomen v Corrigan [1880] NSWLawRp 80; (1880) 1 LR (NSW) 358
PJ v The Queen [2012] VSCA 146; (2012) 268 FLR 99
Potts v R [2012] NSWCCA 229
R…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bin Sulaeman v R

Details

AGLC: Bin Sulaeman v R [2013] NSWCCA 283
Case: [2013] NSWCCA 283
Decision Date: 14 November 2013

CaseChat Overview and Summary

In the matter of Bin Sulaeman versus The Queen, the appellant was part of the crew on a boat found near Christmas Island with fifty-seven passengers. He was charged with aggravated people smuggling under section 233C of the Migration Act. The case came before the High Court of Australia, which was required to consider the admissibility of certain statements made by the appellant and whether the trial judge correctly directed the jury on the elements of the offence.

The court had to determine the admissibility of the appellant's admissions, made in response to a translation card, and whether the trial judge erred in admitting this evidence. The defence objected to the use of the translation cards on the grounds that the circumstances did not adequately caution the appellant and that the evidence was unfair and unreliable. The court found that the trial judge's findings regarding the admissibility of the evidence were open and that there was no error in the admission of the evidence under sections 85, 90, and 139 of the Evidence Act. The court also found that the trial judge correctly directed the jury on the necessary intention required for the offence, which was the awareness of the passengers' intended destination of Australia.

The court held that the trial judge did not err in admitting the evidence, and the appeal was dismissed. The court found that the trial judge's directions to the jury on the necessary intention for the offence were correct and that the defence case did not require the appellant to be aware that Christmas Island was part of Australia. The court also found that the application of Rule 4 of the High Court Rules applied, and that the general requirement that counsel make clear at trial the grounds on which particular rulings are sought applied in this case.

Orders