Bin Sulaeman v R

[2013] NSWCCA 283

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 v Abusafiah (1991) 25 NSWLR 531 R v Anuga (1976) 11 ALR 412 R v Branscombe (1921) 21 SR (NSW) 363 R v Button and Griffin [2002] NSWCCA 159; (2002) 54 NSWLR 455 R v Deng [2001] NSWCCA 153 R v FDP [2008] NSWCCA 317; (2008) 74 NSWLR 645 R v Fowler [2003] NSWCCA 159; (2003) 151 A Crim R 166 R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310 R v Ita [2003] NSWCCA 174; (2003) 139 A Crim R 340 R v King [2000] NSWCCA 507 R v Malas (1978) 21 ALR 225 R v Moffatt [2000] NSWCCA 174; (2000) 112 A Crim R 201 R v O'Brien (1920) 20 SR (NSW) 486 R v Pemble (1971) 124 CLR 107 R v Robinson [2003] NSWCCA 188 R v Wilson [2005] NSWCCA 20; (2005) 62 NSWLR 346 Sepulveda v R [2006] NSWCCA 379; (2006) 167 A Crim R 108 Shepard v R [2011] NSWCCA 245 Sunada v R; Jaru v R [2012] NSWCCA 187 Taru Ali v R [2013] NSWCCA 211 The Queen v Amad [2012] NTCCA 1; 256 FLR 423 The Queen v Swaffield [1998] HCA 1; (1998) 192 CLR 159 Vickers v R [2006] NSWCCA 60; (2006) 160 A Crim R 195
Category:	Principal judgment
Parties:	Ade Sutiawan Bin Sulaeman Regina
Representation
- Counsel:	Counsel: Mr S Corish (Appellant) Ms W Abraham QC with Mr N Kelly (Respondent)
- Solicitors:	Solicitors: William O'Brien & Ross Hudson Commonwealth Director of Public Prosecutions
File Number(s):	2011/95469
Decision Under Appeal
- Court / Tribunal:	District Court
- Before:	Hock DCJ
- Date of Decision:	26 July 2012
- Court File Number(s):	2011/95469

JUDGMENT

1. BEAZLEY P: I agree with R A Hulme J.

2. R A HULME J: Ade Sutiawan Bin Sulaeman ("the appellant") was found guilty by a jury on 25 July 2012 of an offence of aggravated people smuggling.

3. Section 233C of the Migration Act 1958 (Cth) provides a maximum penalty of imprisonment for 20 years and/or a fine of 2000 penalty units. The appellant was sentenced on 26 July 2012 to imprisonment for 5 years with a non-parole period of 3 years. These were the minimum periods the judge was permitted to impose: s 236B.

4. The appellant now appeals against his conviction upon grounds contending errors by the trial judge, her Honour Judge Hock, in admitting evidence of a confession and in directing the jury about the essential elements of the offence.

5. There is also an application for leave to appeal against sentence. However, the Court was informed at the commencement of the hearing that this was not being pursued and was filed in order to preserve the appellant's rights in the event that the mandatory minimum sentencing provisions were overturned in a case then pending in the High Court of Australia. Judgment was given in that matter on 11 October 2013. The appeal failed: Magaming v The Queen [2013] HCA 40.

Facts

1. Late in the evening on 12 October 2010, the Royal Australian Navy ("the Navy") detected a vessel almost five nautical miles from Christmas Island. It was about seven nautical miles within Australian territorial waters. Naval officers delayed boarding the vessel for about an hour and a half because of the prevailing seas.

2. There were 57 passengers on board who derived from Middle Eastern countries and had no lawful right to enter Australia, as well as two Indonesian nationals who comprised the crew. The vessel had been travelling for about three days. It was overloaded and leaking.

3. The appellant was in charge of the vessel. There was no dispute that he was steering it and, when necessary, fixed or maintained the engines.

4. There was no dispute in the trial about most of the essential elements of the offence: that the appellant facilitated the bringing to Australia of five or more persons who had no lawful right to enter Australia and that he was reckless as to whether they had a lawful right to come to Australia. In written submissions to this Court, the Crown helpfully summarised the essence of the evidence that has no direct bearing upon either of the grounds of appeal:

   (1) The passengers embarked at night in two small vessels from a beach in Indonesia, each having travelled from elsewhere.

   (2) After travelling some distance, the passengers transferred from those boats onto the larger vessel that was to take them to Australia.

   (3) The two crew were already on the vessel (an older and younger person).

   (4) The vessel was a wooden fishing vessel (with no fishing equipment on board) and was about 15 metres long and 2.5 metres wide. There was no real seating, no beds, not enough life jackets, nowhere to cook, no toilet, and limited shelter.

   (5) The appellant did most of the steering and repaired the engines.

   (6) The younger crewman provided the passengers with food and relieved the appellant in steering the vessel.

   (7) There was a compass on the vessel which the appellant used. (There was controversy about whether there was also a GPS device).

   (8) A passenger fell overboard during the voyage and the vessel went back to collect him.

   (9) The voyage was about three to four days before they were intercepted by the Navy.

   (10) When they saw the Navy they turned the light on so the Navy could see them to come and get them. The applicant was turning the light on and off, flashing it.

   (11) The passengers were happy when the Navy arrived as they had reached the place they wanted to be taken to, Australia.

   (12) The passengers gave the crew money.

5. The critical issue in the trial was whether the appellant meant to facilitate the bringing to Australia of the passengers. In other words, there was an issue about his knowledge or belief about the intended destination of the passengers.

6. Four of the passengers gave evidence for the Crown. None of them spoke the appellant's language and he did not speak theirs. A lot of the communication between him and themselves that they gave evidence of involved gestures.

7. One of the passengers, Mahrab Abadi, gave evidence that on the third day of the journey he asked when they were to arrive in Australia. Mr Abadi was speaking in Persian and using his hands. But he pronounced the word "Australia" in its English form. He said the "older driver" (the appellant) responded with his head in a nodding gesture.

8. Mr Abadi said that on the last day of the journey some of the passengers were arguing with the older one and asking why they had not arrived at their destination yet.

   Q. During that exchange did you hear the word "Australia"?
   A. INTERPRETER: Yes, I did, actually they were talking and asking that, why we didn't arrive to Australia? Would you please explain in that when we were boarded on the boat in the first state we were thinking that Christmas Island is very close to Australia and usually we were - we were using the "Australia", not "Christmas Island".

9. In cross-examination, Mr Abadi said that when land came within sight, the older crew member pointed to it and said "Christmas Island" or perhaps only "Christmas".

10. Ayub Allahdari said that on the first day of the journey he said to the older crew member, "'Australia', 'finish' or something". He was trying to find out when they would arrive at their destination. Although he was speaking in Kurdish, he used the English word "Australia". The appellant responded with a hand gesture. At some point (the evidence is unclear), the appellant spoke the words "Christmas" and "Christmas Island".

11. Mr Allahdari's evidence included: "Actually we didn't know where we were doing [sic] at that time, just he answered 'Australia', mentioned to us 'Christmas Island' but we didn't know what mean 'Christmas Island' for us".

12. In the context of some rather confusing evidence about a mobile phone and a GPS device, Mr Allahdari gave this evidence:

    Q. When you say they check the two numbers, on what devices were the two numbers?
    A. WITNESS: The mobile with the GPS one. And he said, we arriving, like, we are in Christmas Island. After this he see the - the numbers.

    Q. When you say he said, we are arriving at Christmas Island, did you understand that from his hand gestures?
    A. WITNESS: Yes, Christmas, Christmas. Just we listen, like, this word, "Christmas, Christmas" and after we know what is that.

    Q. what was he doing with his hands when -
    A. WITNESS: He hands like showing the one way and saying "Christmas" and three, four hours we saw like a red light and, yeah, he said, we use the light or something like that.

    CROWN PROSECUTOR: When the witness was saying "Christmas" he was pointing.

    HER HONOUR: Yes, with extended arm.

13. In cross-examination the following evidence was given concerning the destination:

    Q. You gave us some evidence that on the first day when during this discussion - during this questioning that the older crew member said something like Christmas Island or Christmas?
    A. INTERPRETER: Correct

    Q. Could you recall the exact words that he used?
    A. INTERPRETER: At that time I remember when we asked about out how is the time, low time or I saw two lands. I remember two lands from that side to that side. He show me as by hand this is Christmas, this is I show you by hand.
    A. WITNESS: Australia
    A. INTERPRETER: Australia, Christmas.

    Q. What were the exact words he used, can you remember?
    A. WITNESS: "Christmas".
    A. INTERPRETER: "Christmas".

    Q. Do he didn't use the word Australia?
    A. INTERPRETER: We ask, "Where is Australia?" He said "Christmas, Christmas". We ask, "Australia". He said, "Christmas".

    Q. Can I suggest to you that it was the passengers rather than the older crew member that used the words "Christmas" and "Australia"?
    A. INTERPRETER: May be you are right.

    Q. It's possible, is it, that he didn't use the words "Christmas" or "Australia"?
    A. INTERPRETER: Of course they say to us "Christmas" and "Australia". I remember that. I remember him.

    Q. When you say "they" who?
    A. WITNESS: The big driver. The older one and the small one, both of them said "the Christmas" and "Australia".

    Q. Is your evidence that you have a memory of him saying the words "Christmas" and "Australia"?
    A. WITNESS: I didn't remember that. But I remembered he show us exactly the Christmas and say that "Christmas" because it was like the first day, like the afternoon time, the light is going from the two islands and he showed with the hand the Christmas and said "Christmas, Christmas".

14. Rahim Khoramian's evidence included that he heard the older crew member say the word "Australia" as well as "Christmas Island". This was when they were nearing Christmas Island. However, in cross-examination he agreed that he could not remember "the older crew member kept saying the word Australia or Christmas Island". He also agreed that in a conference with the Crown Prosecutor he had said that everyone was saying "Australia" but he could not recall if the older crew member was saying it.

15. The fourth passenger witness did not give any evidence about the appellant saying anything concerning the destination of the passengers.

16. The Crown also relied upon the evidence of Lieutenant Simon Griffith. He was in charge of the boarding party after the Navy detected the vessel near Christmas Island. He had a conversation with the appellant in which, on the Crown case, admissions were made that supported proof of the critical element. In short, it was alleged that the appellant admitted that the destination was Australia. It will be necessary to review Lt Griffith's evidence in some detail in the context of the first ground of appeal.

Ground 1: The trial judge erred in admitting evidence of alleged admissions by the appellant to Lieutenant Griffith and as a consequence the trial miscarried.

1. The appellant's trial was assigned to her Honour Judge Hock on Wednesday 11 July 2012. The Crown Prosecutor informed her Honour that there were a number of preliminary legal issues to be determined, one of which concerned the admissibility of alleged admissions to Lt Griffith.

2. Counsel for the appellant informed her Honour that the bases of the objection were ss 85, 90 and 139 of the Evidence Act 1995 (NSW). The Crown Prosecutor informed her Honour that s 245F of the Migration Act was relevant. Lt Griffith was then called to give evidence on the voir dire.

Evidence of Lieutenant Griffith on the voir dire

1. Lt Griffith was on a ship, HMAS Maitland, which was tasked to patrol Australian waters between Christmas Island and Ashmore Reef. His primary role was to be the boarding officer if a suspected illegal entry vessel ("SIEV") was detected.

2. On 12 October 2010 at 10.43pm, an alert was sounded on the HMAS Maitland and Lt Griffith prepared his boarding team, which comprised four personnel. They proceeded to the SIEV in a rigid hulled inflatable boat and, after some delay because of adverse sea conditions, boarded at 12.13am. They attended to some standard operational procedures, mostly concerned with safety and security of the boarding party and of the passengers and crew of the SIEV.

3. The engine of the SIEV stopped and was unable to be restarted. The inflatable boat then towed it to the shelter of Christmas Island. At about 1.24am they were moored at a mooring buoy and Lt Griffith commenced to interview the two crew members. Because of the language barrier he used Australian Fisheries Management Authority translation cards ("AFMA cards"). He did not use every card in the set; only those he felt were relevant. Seaman Murphy and Able Seaman Dempster took notes during this process.

4. Lt Griffith was asked the purpose of the questioning:

   A. The purpose was to gather information for standard reporting and signal purposes for us to provide information on the incident to headquarters northern command in Darwin and to water protection command in Canberra.

5. The AFMA cards were numbered and contained questions in English with Indonesian translations. Cards 2 and 4 yielded responses from the appellant to the effect that he could not speak English but could read Indonesian. Card 3 asked who the master of the vessel was and the appellant made a gesture understood to mean that he was not.

6. Card 6 asked for the appellant's full name and for him to write it down. He wrote "ADE" (his first name). Card 7 asked for his home address and the appellant wrote "Marinjunqhilir" (the name of the village in which he lived). At this point Lt Griffith made an assessment that the appellant understood the questions that he was being asked and that he was giving responsive answers. He then showed to the appellant card 8:

   You are not obliged to say or do anything unless you wish to do so. Whatever you say or do will be recorded and may be given in evidence. This means you do not have to answer all my questions. Do you understand this warning? (Ensure this is acknowledged and understood and the response recorded). [Emphasis in original]

   [Indonesian translation with apparently similar emphasis]

7. The appellant responded by nodding his head in the affirmative, up and down.

8. Subsequent questions involved the appellant nodding in the affirmative to a question asking whether he was Indonesian (card 10); not giving an answer as to the name of the vessel (card 13); answering verbally that the vessel was registered or flagged to Indonesia (card 14); answering verbally and by gestures indicating the owner of the vessel was not present (card 15); not knowing the name of the owner or where the owner lived (cards 16-17); and indicating that there were two crew by holding up two fingers and writing "Ade 34" and "Yogi 15" (card 18) (the appellant was born in 1977 and he said in his evidence later in the trial that he estimated the other crew member, Yogi Bin Cutis, to be aged 15 to 20).

9. The appellant and the younger crew member nodded affirmatively to a question about whether they were healthy (card 19). The appellant responded to a question asking him to produce "official documents, passports, port clearances, licences, navigation charts etc" in a way that indicated he had nothing to produce (card 25).

10. Questions about the home port of the vessel and where the journey had commenced brought the same verbal responses, "Lombok" (cards 26-27). The appellant held up four fingers in response to a question about how many days had elapsed since they had left port (card 28). He pointed to a compass when asked what navigational equipment he had (card 29). He shook his head in a negative fashion when asked whether the crew had a GPS device (card 30).

11. Card 34 asked:

    Which country's waters are you in?

    [Indonesian translation]

12. Lt Griffith said that by way of response, "the accused smiled and had a blank look on his face".

13. Lt Griffith gave this evidence on the voir dire about the final card shown to the appellant:

    Q. And the final card you showed him was card 38: "Why are you in this area?"
    A. Yes

    Q. Was there a response?
    A. Yes, there was. He verbally said "Australia" and he smiled in a sheepish way.

    Q. Did you do anything at that point?
    A. Yes. To clarify his response, I also said "Australia", and, at the same time, I pointed - or gestured towards the passengers on board the vessel.

    Q. And did the accused do anything then?
    A. The accused looked down, continued to have a sheepish look on his face, and didn't appear to have any other explanation.

1. In her subsequent judgment, the trial judge indicated that the transcript was incorrect and that the appellant's verbal response to this question was "Australie". (The transcript varies in spelling from "Australi" to "Australie" but I will adopt the latter.)

2. At the conclusion of the questioning Lt Griffith issued a detention notice pursuant to s 245F of the Migration Act. This was to formally advise that the vessel was being detained on the basis that it was reasonably suspected to be a foreign vessel in Australian territorial waters involved in a contravention of the Migration Act.

3. Lt Griffith also gave evidence on the voir dire that no-one in the boarding party spoke Indonesian and nor, to his knowledge, did anyone on board HMAS Maitland. He also said that he did not have access to an interpreter at the time he was questioning the appellant. The questioning had commenced at 1.39am and concluded at 2.45am.

Issues canvassed in cross-examination on the voir dire

1. Given the nature and extent of the submissions made in this Court about the admissibility of the appellant's responses to Lt Griffith's questioning, it is necessary to identify the issues that were raised in cross-examination of the officer on the voir dire.

2. HMAS Maitland's role was to detect illegal fishing and any other border protection incidents.

3. Lt Griffith was well-versed in his powers under s 245F of the Migration Act to board vessels, question people on vessels and, within reason, to compel them to answer.

4. There was specific clothing and equipment worn during boarding incidents such as this: a life jacket; a stab vest (combat body armour); a 9mm pistol with two magazines and a holster; a telescopic baton reduced to its smallest size of about 8cm in a pouch attached to the belt; a radio; a helmet; and a head lamp. All naval crew wore DPNU ("disruptive pattern naval uniform"). The stab vest was worn under the life jacket so that at that time of night it probably would not have been visible.

5. Lt Griffith was "of a strong opinion that this was more than likely to be an illegal smuggling boat". That was why the boat was boarded.

6. Firearms were not drawn when boarding the vessel. Lt Griffith's usual practice was to announce that he was an officer of the Royal Australian Navy and seek permission to come on board. Illumination of the boarding vessel was used to further identify that they were Australian officials. There was not a lot of yelling. It was a peaceful boarding; he was sure about that.

7. The suggestion by the cross-examiner that it was not a peaceful boarding appears to have emanated from some entries in contemporaneous notes - "showtime" and "frenzy" at the time of boarding and immediately after. Lt Griffith explained that these were in fact code words relating to the commanding officer's approval to commence boarding and to relay back that the boarding had been safely achieved.

8. The environment on the vessel was "very benign" and "the mood was generally positive on board".

9. Lt Griffith called out that he was from the Royal Australian Navy when he was boarding the vessel. He denied that other members of the party were calling that out as well. He denied calling out "master, master" and also denied that establishing who was the master was his primary function when he first got on to the boat.

10. Once he had observed who and what was on board first-hand he felt it was "highly likely that this was a suspected illegal entry vessel". That was his opinion but at this point the vessel was identified as a "critical contact of interest and had not been ascertained as a SIEV yet".

11. It was put to Lt Griffith that "people weren't free to leave the boat at that point". He pointed out that they were in the middle of the ocean and had nowhere to go; and the engine had stopped as well.

12. Several of the English speaking passengers pointed out the two members of the vessel's crew. He denied that this was as a result of him calling out "master, master"; he again denied saying those words.

13. Lt Griffith denied that he immediately "spotted the Indonesian crew" when he got on to the boat. In effect, there were other more pressing matters at that point. He maintained, despite a suggestion to the contrary, that he had no direct dealing with the Indonesian crew until they were in the shelter of the island. He denied shining his light at the crew. He also denied that in response, the crew went to their knees and put their hands up.

14. The vessel was not detained at the time it was towed to the island; the s 245F notice was not issued until later. The boat was towed because it was without power; the seas were high; it was the middle of the night; and there was very little emergency equipment on board. Towing was necessary to ensure the safety of the vessel and those on board. He did not ask for permission to do this; but no-one tried to stop him either.

15. At 1.24am, the vessel was connected to a mooring buoy a short distance off Smith Point on Christmas Island. The buoy was about 40 to 50 yards offshore. It was suggested that it would have taken a very short period of time to get to shore, but Lt Griffith pointed out that while the distance was short, the land at that point comprised cliffs.

16. The use of the AFMA cards was standard operating procedure. Lt Griffith had received some limited training in their use as part of the boarding officer training course. He was aware that there were 87 cards and he selected the ones he felt were relevant to use.

17. Once the boat had been taken back to Christmas Island the element of risk had "lulled". "That was when we could then begin inquiries, making investigations through asking the crew questions in order to gather information for reporting purposes". He denied that there was "no immediate urgency" in speaking to the appellant at that time and he denied questioning him then "because that was the next thing that you had to do". He reiterated that his purpose was to gather information for military border protection command; it was "the initial investigative part of the procedure in order to provide information for command, so they could make those decisions".

18. Lt Griffith believed that the appellant was in charge; past experience with Indonesian fishing vessels and SIEVs told him that the older crew member would more than likely be the one in charge.

19. He was aware that it was possible that there were facilities on Christmas Island that could have been utilised when speaking with the appellant. But this was improbable, given the time of night.

20. Lt Griffith was satisfied that the appellant understood the caution card (card 8). He did not show card 9 which asks, "Do you understand that you do not have to answer any questions if you do not want to?" He did not feel it was necessary because the same question had already been asked with card 8. He was "already quite happy that [the appellant] had answered [card 8] firmly and positively".

21. Card 87 was not shown. It asks, "have you understood all that you have read?" Lt Griffith explained that the appellant seemed to answer everything as though he understood and he had already confirmed that he could read Indonesian.

22. Lt Griffith did not seek clarification when the appellant only wrote "Ade" in response to card 6 which asked him to write his full name. As to the place name the appellant wrote in response to a question about his home address (card 7), Lt Griffith did not recognise the place and did not know if it was responsive to the question.

23. Although the two crew were together during the questioning, the older man answered every question and the younger man sometimes answered as well. Lt Griffith was asked if he was sure of this and he said he was. He denied a suggestion that at some stage only the younger person answered.

24. Lt Griffith agreed that when he showed the caution card (card 8) he was aware that it indicated that whatever the appellant said would be recorded and may be given in evidence. He agreed that the information the appellant was providing was not only for naval reporting purposes but "was also for future use, if necessary".

25. At no time was the appellant shown the contemporaneously written notes of the questioning. He had no ability to have them translated into his language. So, the appellant did not adopt them, or agree that they were correct.

26. Lt Griffith was aware that handheld recording devices were available on the HMAS Maitland; they were available for use by the boarding party; but he did not take one on this particular boarding. (The efficacy of audio recording, given the nature of the questioning by the use of cards, and the nature of the responses being often non-verbal, was not explored.)

Submissions following the voir dire

1. In written submissions provided to the trial judge, the appellant's counsel summarised that the objection to the entirety of the conversation was based upon s 85 of the Evidence Act (the admissions were unreliable having regard to the circumstances of their making); s 90 (it would be unfair in all the circumstances to use the evidence); and s 139 (the caution given by Lt Griffith was insufficient and so the admission was obtained improperly).

2. The use of powers under s 245F of the Migration Act was identified as "a preliminary issue" and one that should be taken into account in respect of each of the bases for exclusion of the evidence. The use of such power deprived the appellant of the protections in Div 3 of Part 1C of the Crimes Act 1914 (Cth) and deprived him of the right to silence. Failure to answer questions left him liable to penalty. Given that the officer in fact cautioned the appellant and did not direct him to answer any questions, it is notable that this submission was not explained or further developed.

Submissions on appeal generally

1. It was submitted by counsel for the appellant (who was not counsel at the trial) that the evidence should have been excluded pursuant to ss 85, 90, 138 and 137 of the Evidence Act.

2. The following then appears in the written submissions:

   Additional issues raised in the appeal are: the lawfulness of the boarding of SIEV; what power was the investigating official (Lt Griffiths) exercising when he questioned the appellant, that is, under the Migration Act (Cth) or the Crimes Act (Cth); the extent to which s 245F(3) of the Migration Act abrogates the privilege against self-incrimination; the application of Part 1C of the Crimes Act (Cth) and the failure to comply with requirements regarding interviewing protected suspects or those under arrest; and the administration of the caution to a person who does not speak English.

3. The last of those "issues" is relevant to the way the matter was dealt with at trial. None of the others were issues that were raised at all. I will say something more about that later. In what follows I will deal with each of s 85, s 90 and s 139 separately.

Section 85 of the Evidence Act

1. Section 85 is in the following terms:

   Criminal proceedings: reliability of admissions by defendants

   (1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant:

   (a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence, or

   (b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.

   Note. [Omitted]

   (2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.

   (3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account:

   (a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject, and

   (b) if the admission was made in response to questioning:

   (i) the nature of the questions and the manner in which they were put, and

   (ii) the nature of any threat, promise or other inducement made to the person questioned.

Appellant's submissions at trial concerning s 85

1. It was submitted that Lt Griffith was acting in the role of "an investigating official". The circumstances were said to be such that they would be "extremely frightening for persons on the boat" and, for a person in the position of the appellant who was not able to speak or understand English, the situation was "even more frightening". (Some of the "circumstances" referred to were either not established by the evidence on the voir dire, or the contrary was established.)

2. There was no immediate need for the appellant to have been questioned and he required the services of an interpreter. The failure to provide an interpreter created a "significant risk that the truth of the admissions was compromised".

3. Further, there was no evidence that the appellant understood the meaning and effect of the caution. There was no clarification with him as to whether he understood. Card 9 had not been used for that purpose. The response to card 38 ("why are you in this area") of "Australie" was said to be unresponsive and ambiguous. It may have been an admission but also may have been a request for "clarification as to which area he was in".

Ruling of trial judge concerning s 85

1. Her Honour accepted a Crown concession for the purpose of the argument that Lt Griffith was "an investigating official". But she said "there is nothing in the evidence which would invoke s 85 of the Act". The appellant was an adult and he could read Indonesian. The use of the AFMA cards was appropriate in the circumstances. The answers given to questions before and after card 8 (the caution card) were responsive. There was nothing about the nature of the questions, nor was there any evidence of any threat, promise or inducement that would enliven exclusion. There was no evidence from the appellant to the contrary of Lt Griffith's that he had responded positively to card 4 (that he could read Indonesian) and to card 8.

2. Her Honour concluded that the circumstances in which the admission was made were such that it was unlikely that the truth of the admission was adversely affected.

Submissions on the appeal concerning s 85

1. It was submitted (AWS [23]) that exclusion under this provision was warranted because the circumstances affected the truth of the admission having regard to:

   (a) the lack of an interpreter;

   (b) the characteristics of the appellant;

   (c) the manner of questioning - by an armed Navy officer who has boarded the SIEV; and

   (d) contrary to the finding of the trial judge, the answers were not responsive and were not indicative of understanding.

2. In relation to the last of those points, it was contended that care was required "in a cross-language and cross-cultural exchange" to avoid assuming that any "response is conclusive of understanding". The appellant's responses may have been "little more than an act of gratuitous concurrence, possibly emphasised given the deferential nature of Indonesian people to persons in authority or elders and that the interrogator arrived armed and [in] a large Navy vessel".

3. The appellant was critical of her Honour's statement that "as the accused has given no evidence there is nothing about the nature of the questions, nor is there evidence of any threat, promise or inducement, which would enliven s 85(2)". This was a reference to the matters in s 85(3)(b) that her Honour was required to take into account. It was submitted that her Honour was wrong to confine to those matters her consideration of whether the evidence should be excluded. And it was submitted that "her Honour was also in error in suggesting there was some onus on the accused to give evidence to raise issues which activate s 85(2)".

Determination

1. Section 85 is not expressed in discretionary language. Admissibility of the evidence is determined by a finding of fact on the criteria in s 85(2) and the matters in s 85(3). Findings of fact by the trial judge are binding on this Court unless they were not open to her Honour to have made: Sepulveda v R [2006] NSWCCA 379; (2006) 167 A Crim R 108 at [131], per Johnson J, McClellan CJ at CL and Hislop J agreeing.

2. It was for the Crown at trial to establish on the balance of probabilities that the circumstances in which the admissions were made were such as to make it unlikely that their truth was adversely affected: R v Moffatt [2000] NSWCCA 174; (2000) 112 A Crim R 201 at [46], per Wood CJ at CL, Foster AJA and Adams J agreeing; FMJ v The Queen [2011] VSCA 308 at [39], per Weinberg JA, Hansen JA and Beach AJA agreeing.

3. The trial judge was well aware that there was no interpreter; that is why the AFMA cards with their Indonesian language translations were used.

4. The appellant was able to read the Indonesian language on the cards. His answers gave the appearance of being responsive. It is not determinative but it should be observed that, when he later gave evidence in the trial, the appellant did not suggest that any response he gave was unintended or mistaken because he misunderstood the question. There was no such evidence placed before her Honour on the voir dire; she only had the evidence of Lt Griffith in order to consider this issue.

5. Arguments were advanced on the appeal that some of the appellant's answers, whilst not a complete misunderstanding of the question, were nonetheless indicative of only showing a partial understanding. One example was the appellant writing only his first name in response to a question asking him "can you please write your full name" (card 6). Another example was only writing the name of his village when asked "can you please write your home address" (card 7). The trial judge was aware of such responses. They did not compel a finding that the appellant was unresponsive, indicating that he did not understand the questions. In relation to the latter, counsel in this Court was unable to say what more could have been provided by the appellant aside from the name of his village. The appellant did not provide anything further in the course of his evidence before the jury.

6. There is merit in the appellant's submission that care is required in considering responses given in the course of an exchange between persons who do not speak the same language and who emanate from different cultural backgrounds. But as to the argument that was based on that proposition, the obvious response is that there was nothing of that nature put to the trial judge either by way of evidence or submission.

7. The appellant's submissions concerning her Honour's reference to the matters in s 85(3)(b) are misconceived. Her Honour was required to consider those matters. She simply observed that they did not apply; there was no evidence about such matters that would support a finding in the accused's favour that the admissions should be excluded pursuant to s 85(2). It was a statement of the obvious, demonstrating compliance with the requirements of s 85(3), rather than a suggestion of reversal of onus.

8. Whilst "the manner of questioning - by an armed Navy officer who has boarded the SIEV" was included in the summary of the appellant's argument in relation to s 85 (AWS [23]), it was not a point that was developed. It is correct that Lt Griffith was armed; he had a pistol in a holster which, presumably, was attached to his webbing. There was no evidence that the pistol was ever produced and no evidence one way or the other as to whether the appellant noticed it. And the only evidence as to the general atmosphere on board the vessel up to and at the time of the questioning was that of Lt Griffith which was to the effect that it was benign. There was no evidence on the voir dire that supported the submission to the trial judge that the appellant found the experience "extremely frightening."

1. In my view the appellant has not demonstrated that the finding of fact by the trial judge that the criteria required by s 85(2) was satisfied was not a finding that was reasonably open.

Section 90 of the Evidence Act

1. This section provides:

   90 Discretion to exclude admissions

   In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:
   (a) the evidence is adduced by the prosecution, and
   (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

Appellant's submissions at trial concerning s 90

1. Counsel for the appellant submitted to the trial judge that the unfairness in this case concerned the failure of Lt Griffith to provide an adequate caution. This was said to have operated on the ability of the appellant to exercise his right to silence and came at a price that was unacceptable by community standards. Further, the failure to provide an interpreter impacted upon the reliability of the appellant's responses to such an extent as to make it unfair to admit them.

2. Counsel pointed out that there was no urgency; an interpreter could have been found on Christmas Island; or at the very least a telephone interpreter should have been utilised. No steps were taken to ensure that the appellant understood the questions. The younger crew member apparently answered some of the questions (a point that lost its force after Lt Griffith gave evidence on the voir dire). It was also submitted that the appellant's responses were "arguably non responsive and/or ambiguous".

3. In oral submissions, counsel for the applicant added that another relevant factor was the failure of Lt Griffith to obtain an adoption by the appellant of the handwritten recording of the admissions and he relied upon R v Robinson [2003] NSWCCA 188 at [137].

Ruling of trial judge concerning s 90

1. Her Honour noted that the onus of demonstrating that the use of the evidence was unfair was upon the appellant. She said she was not persuaded that the circumstances of the making of the admissions were such that it would be unfair to the accused to use the evidence.

Submissions on appeal concerning s 90

1. It was submitted (AWS [24]) that exclusion was warranted under this provision as it was unfair to use the evidence having regard to:

   1. the understanding by the appellant of Lt Griffith's questions and the meaning of his answers; and

   2. the lack of an effective caution.

2. I have omitted reference to parts of the written submissions that are not reasons why it was unfair to use the evidence or were not issues raised at trial. The latter will be discussed below.

Determination

1. In relation to each of the rulings of the trial judge concerning s 90 and s 139, the onus is upon the appellant to establish error in the House v The King sense (House v The King (1936) 55 CLR 499 at 505): MIH v R [2007] NSWCCA 199 at [54], per Campbell JA, Hidden J and Smart AJ agreeing.

2. The provision in s 90 is concerned with the right of an accused to a fair trial and whether there is a risk of improper conviction: The Queen v Swaffield [1998] HCA 1; (1998) 192 CLR 159. It has been described as a "final or safety net provision" available after the more specific exclusionary provisions of the Evidence Act have been considered and applied: Em v The Queen [2007] HCA 46; (2007) 232 CLR 67 at [109], per Gummow and Hayne JJ.

3. The trial judge's ruling in relation to s 90 was confined to a correct observation as to the appellant bearing the onus of establishing unfairness and a statement to the effect that she was not persuaded that admitting the evidence would be unfair.

4. Earlier in her judgment she had indicated her conclusions about the ability of the appellant to understand the questions and the responsiveness of his answers. She was satisfied that the admissions were obtained in circumstances unlikely to adversely affect their truthfulness. Later, when dealing with s 139, she indicated her satisfaction that there had been an appropriate caution.

5. A substantial argument was raised in this Court about the ability of the appellant to have understood the caution. But the trial judge was satisfied by the evidence of Lt Griffith that the appellant could read Indonesian, that he read the caution (on card 8) and that he nodded in the affirmative indicating he understood it. It is not to the point that there might have been other and better ways for Lt Griffith to have approached this issue. The simple point is that it was open to the trial judge to conclude that he was given a caution. Given it was Lt Griffith's evidence that the appellant responded affirmatively to the question posed at the end of the caution, "Do you understand this warning?", and there was no evidence to the contrary, it was also open to her Honour to accept that the appellant understood his right to silence.

6. No error is demonstrated in the determination of the judge not to reject the evidence pursuant to s 90.

Section 139 of the Evidence Act

1. This section provides:

   139 Cautioning of persons

   (1) For the purposes of section 138 (1) (a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if:

   (a) the person was under arrest for an offence at the time, and

   (b) the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person, and

   (c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.

   (2) For the purposes of section 138 (1) (a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if:

   (a) the questioning was conducted by an investigating official who did not have the power to arrest the person, and

   (b) the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence, and

   (c) the investigating official did not, before the statement was made or the act was done, caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.

   (3) The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately.

   (4) Subsections (1), (2) and (3) do not apply so far as any Australian law requires the person to answer questions put by, or do things required by, the investigating official.

   (5) A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if:

   (a) the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning, or

   (b) the official would not allow the person to leave if the person wished to do so, or

   (c) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so.

   (6) A person is not treated as being under arrest only because of subsection (5) if:
   (a) the official is performing functions in relation to persons or goods entering or leaving Australia and the official does not believe the person has committed an offence against a law of the Commonwealth, or

   (b) the official is exercising a power under an Australian law to detain and search the person or to require the person to provide information or to answer questions.

Appellant's submissions at trial concerning s 139

1. Counsel for the appellant submitted to the trial judge that Lt Griffith was an investigating official who had a power of arrest under s 245F of the Migration Act and, "in all of the circumstances", he "had given the Accused reasonable grounds for believing he would not be able to leave". For those reasons, it was submitted, the appellant was "under arrest" for the purposes of s 139.

2. Counsel referred to R v Deng [2001] NSWCCA 153 in support of the proposition that the investigating official must give the caution in such a way that it is understood and that the official should ensure that it has been understood.

3. Submissions were repeated about Lt Griffith not seeking clarification as to whether the appellant understood the caution, for example by the use of card 9. It was submitted that it was incumbent upon him to do so given the appellant's lack of English language skills and the absence of an interpreter. For these reasons, there was "a failure to adequately caution".

4. That conclusion then required consideration of exclusion of the evidence pursuant to s 138 (exclusion of improperly or illegally obtained evidence). In that regard, it was submitted that the probative value of the evidence was not high (s 138(3)(a)). The appellant's answers were ambiguous and so its importance was not high (s 138(3)(b)). It was not contended that the breach by Lt Griffith was deliberate (s 138(3)(e)). But it was a significant breach and could easily have been avoided by delaying the questioning or by using card 9 (s 138(3)(h)). For those reasons it was submitted the desirability of admitting the evidence did not outweigh the undesirability of admitting evidence that was obtained in the way that it was.

Ruling of trial judge concerning s 139

1. Her Honour was of the view that the section had no application as the appellant was not under arrest. But if he was under arrest, he was cautioned in accordance with ss 139(2)(c) and (3), that is, he was cautioned that he did not have to say anything but that anything he said may be used in evidence, and the caution was translated into a language in which the appellant was able to communicate with reasonable fluency.

Submissions on appeal concerning s 139

1. The appellant's submissions relevant to the issues raised at trial in respect of s 139 were:

   1. there was error in the judge concluding that the appellant was not under arrest; her Honour failed to decide if he was a protected suspect;

   2. there was error in the judge concluding that the accused was cautioned in accordance with s 139(2)(c) and s 139(3); and

   3. the inadequacy of the caution amounted to illegality or impropriety.

Determination

1. The trial judge ruled that the evidence was admissible whether or not the appellant was under arrest. Accordingly, there is no practical utility in engaging in that debate. I do, however, express some bemusement as to how a person on a boat with a broken engine moored off cliffs in the middle of the night could have felt "free to go" anywhere, arrested or not. It does not seem a relevant consideration in these circumstances.

2. The assertion of a "failure to adequately caution" the appellant was made in this Court by reference to s 23F of the Crimes Act 1914 (Cth). It provides that an investigating official must, before starting to question a person, caution that the person does not have to say or do anything, but that anything the person does say or do may be used in evidence. The same requirement appears in s 139(2)(c) of the Evidence Act.

3. I have earlier set out the text of card 8. It precisely conformed to the requirements of s 23F and s 139(2)(c).

4. There was no evidence contradictory of Lt Griffith's evidence that the appellant read the caution card and indicated that he understood it. The trial judge observed that he was "extensively cross-examined but was not shaken in his account". In these circumstances it cannot be accepted that it was not open to her Honour to find that there was no failure to comply with the provisions of s 139 and so there was no occasion to consider exclusion of the evidence pursuant to s 138.

5. The arguments for the appellant in this Court in relation to this issue were very largely concerned with matters not raised in the court below. I will turn to them shortly.

Ruling of trial judge concerning s 137

1. Her Honour also considered s 137 (mandatory exclusion of prosecution evidence if the probative value is outweighed by a danger of unfair prejudice). She said that she did so "for completeness". No submission was made that this provision remained for consideration if her Honour was not persuaded to exclude the evidence on the other bases.

2. Her Honour regarded the response of the appellant to card 38 ("Australie") as "clearly probative of a fact in issue". Whether the appellant in fact gave that response, and what he meant to convey by it, were matters for the jury. Directions were to be given about this (and they were). There was no danger of unfair prejudice.

3. I will not refer to the written submissions for the appellant about asserted error by the judge as to this provision. Her Honour only considered it as a matter "of completeness". It was not something that the appellant relied upon at trial. In effect, her Honour decided something that was not in issue. And, given her conclusions about the ss 85, 90 and 139 issues, it is difficult to see how the evidence could be excluded nevertheless under s 137.

Issues raised in this Court that were not raised in the trial court

1. The Crown noted that this Court is a court of error and characterised the appellant's submissions as, in large part, seeking to reargue the matter afresh with argument that bore little correlation to the conduct of the matter below.

2. I set out the above summary of "additional issues" provided at an early stage of the appellant's written submissions (AWS [9]). Within the lengthy submissions that followed were arguments raising the following propositions and issues:

   (1) The boarding of the vessel was unlawful. There was no evidence of there having been a "request to board" which was required to be made by the commander of the HMAS Maitland and was a condition precedent to lawfully boarding a foreign vessel in Australian waters: ss 245F(1) and 245B of the Migration Act.

   (2) The trial judge did not determine what powers Lt Griffith was exercising when he commenced to question the appellant. Was it pursuant to s 245F of the Migration Act or s 23 of the Crimes Act (Cth)? If it was the former, there was a power to compel the appellant to answer questions. The judge did not determine whether the officer was exercising this power of compulsion. If the officer was purporting to exercise that power, there were a number of preconditions to its exercise which were not established; for example, effective communication of the consequence of a failure to answer the questions: s 245F(15).

   (3) There was also an issue as to the derivative use of answers given under compulsion: s 245F(16).

   (4) If the appellant was under arrest, or was a "protected suspect", then the provisions of Part 1C of the Crimes Act (Cth) applied. The judge held that the appellant was not under arrest; but failed to determine whether he was a "protected suspect" to whom the Part applied in any event.

   (5) The provisions of Part 1C had not been complied with. The officer was required to caution (s 23F); the appellant was to be permitted to communicate with a friend or relative and a lawyer (s 23G); he was entitled to an interpreter (s 23N); he was entitled to access to consular assistance (s 23P); the provision of such information, including the caution, must be tape recorded (s 23U); and provisions relating to the recording of confessions and admissions had to be complied with if the evidence was to be admissible, subject to the court's discretion (s 23V).

   (6) The appellant should have been asked questions like those suggested by Forster J in R v Anunga (1976) 11 ALR 412 at 414 to determine if he understood the caution. The Anunga guidelines should not be limited to interviewing Aboriginal Australians.

3. The submissions about these issues were pressed at the hearing of the appeal. The following provides the flavour. After referring to the alleged unlawfulness of the boarding, whether or not the questioning was under the compulsory powers in s 245F, and whether Part 1C of the Crimes Act (Cth) applied, counsel for the appellant submitted:

   They in my submission are all factors that ought to have been taken into account when her Honour decided whether or not the answers of the appellant to Lieutenant Griffith should have been admitted in the exercise of the court's discretion, and it's my submission her Honour either erred in principle in the way in which she approached the various questions that required her Honour to answer, or that the findings of her Honour were not open on the evidence.

4. As an indication of a disconnect between the argument advanced in this Court and the actual evidence in the trial, senior counsel for the Crown referred to the contention that there was no "request to board" and contrasted it with the appellant's evidence that he signalled by flashing a light, hoping that assistance would come because one engine had stopped, the second engine was failing and the boat was taking on water. He was asked about how he felt when he saw HMAS Maitland and he replied, "I felt happy and I asked for assistance".

Rule 4 Criminal Appeal Rules

1. Rule 4 provides:

   No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal.

2. The rule operates as a substantial obstacle to "armchair appeals", as noted by a plethora of cases, including R v Ita [2003] NSWCCA 174; (2003) 139 A Crim R 340, R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166 at [38], R v Button and Griffin [2002] NSWCCA 159; (2002) 54 NSWLR 455 per Heydon JA at [30]-[37], R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310 at [40] and R v King [2000] NSWCCA 507. Those cases relate to appeals where no objection at all was taken to the impugned decision, failure to direct or other matter. It is a reflection of a venerable practice. For an early example in this State, albeit in a civil context, see Newcomen v Corrigan [1880] NSWLawRp 80; (1880) 1 LR (NSW) 358 per Martin CJ at 360:

   The principal point relied upon is that the Judge misdirected the jury in telling them that the defendant would not be liable unless she authorised the terms of the letter. The point is a novel one, and of great difficulty. But the proper course would have been to take objection to the evidence of the Defendant's instructions to her niece, when tendered at the trial. This was not done, and the Plaintiff cannot have the benefit of the point now.

3. Leave to appeal a matter excluded by r 4 will only be given where the appellant can demonstrate that the error led to a miscarriage of justice: R v Wilson [2005] NSWCCA 20; (2005) 62 NSWLR 346 at [20], R v Abusafiah (1991) 25 NSWLR 531 at 536, R v Malas (1978) 21 ALR 225 at 232, R v Branscombe (1921) 21 SR (NSW) 363 at 367 and 378, and R v O'Brien (1920) 20 SR (NSW) 486 at 490.

4. Reading the rule literally, leave would not be required to appeal an evidentiary ruling where objection was taken on any ground. That is, no matter how unmeritorious the objection that was taken at trial, an appellant is thereby free to raise any new ground for the objection on appeal. That cannot be the correct reading of the rule because it flies in the face of established principles of appellate procedure (as will be seen below).

5. Simpson J has grappled with exactly this issue in Vickers v R [2006] NSWCCA 60; (2006) 160 A Crim R 195. In that case, the appellant sought to raise an issue concerning s 165(2) Evidence Act in relation to evidence he had objected to at trial, but on other bases that those maintained below. The appellant's submissions referred to by her Honour in the following extract mirrored those of the appellant in the present case. She remarked, at 68-69:

   On behalf of the Crown it was contended that no relevant objection had been taken at the trial, and that the appellant therefore required leave to raise the ground, and that leave ought to be refused. Counsel for the appellant agreed [sic - argued] that, objection to the whole of the statement having been taken, the conditions of Rule 4 had been met, and that leave was not required.

   That raises an important issue as to the scope of rule 4.

1. Then, at 73-74:

   ...counsel for the appellant argued in this Court that, once objection is taken, rule 4 has no further application. That is, that once objection - that is, objection of any kind, and on any basis - is taken on any ground to a particular piece of evidence, then rule 4 will not operate to prevent the raising of an entirely different objection to the same piece of evidence.

   To accept the appellant's contention would be to cast an extraordinary burden upon trial judges...The proposition only needs to be stated to be seen as untenable.

2. Simpson J went on to find that r 4 applied. Her reasoning was as follows:

   (1) Admission of evidence involves a question of law.

   (2) An appeal under the Criminal Appeal Act 1912 (NSW) on the admission of evidence is based on a wrong decision on a question of law.

   (3) Judges decide questions put before them by the parties.

   (4) A judge cannot make an error of law unless a party asks him or her to make a relevant ruling (applying Papakosmas v The Queen (1999) 196 CLR 297 per McHugh by analogy).

3. Her Honour thus held that leave was required (at [78]). As an important caveat, the other judges did not endorse Simpson J's decision on r 4. James J at [17] and Hall J at [120] each expressed a desire to avoid a concluded view on the applicability of r 4 as it had not been fully argued.

4. Shepherd v R [2011] NSWCCA 245 concerned the granting by a trial judge of an application by the Crown to cross-examine an unfavourable witness under s 38 Evidence Act. Defence counsel at trial opposed that course. The decision of the Court included (at [15]) that, "Short submissions were made by the Crown and by trial counsel for the appellant which referred to ss.38 and 192 of the Act without any real elaboration". One ground of appeal was that the trial judge had erred in permitting the adduction of a prior representation during the cross-examination. Different grounds were relied upon than those contained in the short submissions at trial. The Crown contended that r 4 applied and that the leave of the Court was required for the appellant to argue that ground, citing Vickers at [78]. The Court held, at [26]:

   In our view, the breadth of Rule 4 is such that the appellant requires the leave of the Court to rely upon Ground of Appeal 2: Vickers at 208-210 [66]-[78]; Klein v R [2007] NSWCCA 206; 172 A Crim R 290 at 298 [27], 301 [45]-[46]. The draftsperson of the grounds of appeal identified, in the first ground, a challenge to the trial judge's decision to grant leave to the Crown under s.38 to cross-examine Scott Shepherd. Rule 4 does not apply to that ground [because it was a decision on how evidence could be adduced but not admissibility].

5. The passages of Vickers endorsed were the ones summarised above.

6. In the present case, an objection was raised to the impugned evidence. Specific reference was made to ss 85, 90, 138 and 139 Evidence Act, enlivening the consideration by the trial judge to find that the evidence should be excluded. But counsel did not argue the Migration Act and Crimes Act (Cth) points raised in this appeal in relation to any of those sections. The new points are technical, and were not ones that a trial judge would be expected to consider unless raised in support of the objection.

7. Rule 4 must apply. But my ultimate conclusion does not depend upon the rule alone.

Generally as to points not taken below

1. There is a general requirement in an adversarial court or tribunal that counsel make clear the grounds on which they press an objection or seek some other a procedural or discretionary ruling. It is not the role of the court or tribunal to answer questions beyond the scope of the dispute articulated. At least in criminal trials in NSW, the only limit to that rule is the requirement upon the trial judge to ensure for the accused a fair trial according to law.

2. Meier v R (unreported, NSWCCA, 21 May 1996) concerned the admissibility of evidence of a prejudicial identification. A resident of the small town of Weston complained to police that he was robbed. A suspect was taken to the police station to be interviewed. The complainant was also taken there shortly after; saw the suspect; and said, "That's him". The suspect became, in due course, the appellant. An objection to the evidence was not taken formally at trial, but was said on appeal to have arisen from an exchange between counsel and the bench. In that exchange, counsel very vaguely put to the judge that the identification was defective and evidence of it should not be admitted. Gleeson CJ (Dowd and Hidden JJ agreeing) rejected two grounds of appeal concerning an asserted failure of the judge to exclude the evidence in the following terms, which deserve to be reproduced in full, at 16-19:

   As has been noted above, no objection was taken to the evidence in question as it was tendered. The informal, indeed casual, observations and submissions made prior to the commencement of the evidence cannot be regarded as an appropriate or sufficient method of putting before the trial judge, for his discretionary decision, the issues which needed to be canvassed relating to the admissibility of the evidence.

   In R v Lars (1994) 73 A Crim R 91 at 119, this court said:

   "Where it is sought to explore on the voir dire the admissibility of evidence, the accused must make application to the judge for such an examination, specify the issues to be explored, and show, to whatever, extent the judge may reasonably require, that there is indeed a significant issue to be tried."

   When the trial judge, understandably, sought to bring the matter to a head by requiring counsel formally to state, for the purposes of the record, the nature of the application he was making, counsel responded by making an application which, as is acknowledged by appeal counsel, was unsustainable and bound to fail. Indeed, the very hopelessness of the application as expressed by trial counsel has been relied upon as an indication that counsel could not possibly have meant what he said, and that he should have been understood to have been asking for something different. However, the argument did not go so far as to suggest that this was an application for a voir dire examination.

   Trial judges are entitled to expect from counsel that objections to evidence, or applications for rulings on the admissibility of evidence, will be made with appropriate clarity and procedural regularity.

   For the reasons given above, the evidence in question in the present case was not self-evidently inadmissible, or of a kind that was bound to be rejected in the exercise of a proper discretion. Indeed, the trial judge was given only a perfunctory, incomplete and inaccurate account of what the evidence was. He could not properly have declared it inadmissible at that point.

   If counsel for the appellant wanted a discretionary decision of the trial judge about the admissibility of the evidence then, in the circumstances, he should have applied for a voir dire examination or, alternatively, agreed with the Crown upon the facts which the trial judge was to take into consideration in making a decision. No doubt, the possibility of a voir dire hearing was one of the things the trial judge had in mind when asking counsel to state, for the record, the nature of his application.

   The trial judge took at face value what counsel said by way of response to his invitation formally to state the nature of his application. The rejection of that application, which was bound to fail, did not require any reasons. Even if the application had been construed beneficially, as an application for a discretionary ruling, on the basis of what had been said from the bar table, that the evidence was not to be admitted, then the proper foundation for such a ruling had not been laid, and an adverse ruling, without elaboration, was justified.

   If trial counsel desired to object to the evidence as it was given during the course of the trial, then such objection should have been made at the time the evidence was tendered.

   One of the assumptions which underlies the adversary system is that counsel, in representing their clients, will make clear to the court or tribunal the points they wish to argue, and those they do not desire to press, and the procedural applications upon which they seek a decision. It is understandable that there may be, on occasions, a reluctance to be seen by a jury to be taking objections to evidence. If, however, counsel in this case wished seriously to press for the exclusion of the evidence in question, it was not sufficient to leave the matter as it stood at the conclusion of the exchange noted earlier. Counsel may well have thought that the discouraging remarks made by the trial judge in response to his observations meant that he had little ultimate prospect of having the evidence excluded. Even so, it was his duty to the client, and to the court, to make a properly formulated and presented application for an advance ruling on the evidence or, alternatively, to object to the evidence as it was tendered. He did neither of those things, and the complaints made in the first two grounds of appeal cannot be sustained.

3. Gleeson CJ went on to describe the limits of the duty upon the trial judge where no objection or no proper objection is taken, in similar terms to my summary at [133] above (c.f. R v Pemble (1971) 124 CLR 107 per Barwick CJ at 117).

4. Another example of the nature of the duty of a trial judge concerning the admissibility of evidence that is not the subject of objection is provided by R v FDP [2008] NSWCCA 317; (2008) 74 NSWLR 645. There it was held (at [29]) that a trial judge is not obliged to consider whether prosecution evidence to which no objection is taken should be excluded pursuant to s 137 of the Evidence Act on the basis that its probative value is outweighed by a danger of unfair prejudice. It was recognised (at [30]), of course, that whether admission of the evidence constituted a miscarriage of justice is a separate issue.

5. The case of R v Lars (1994) 73 A Crim R 91, cited above in Meier, involved, relevantly, a ground of appeal that the exercise of the discretion of a trial judge to refuse a voir dire on the admission of evidence of a confession was an error in law because the Crown had not shown that it was made voluntarily. There the Court held, at 114, that the argument should never have been raised on appeal. The Court pointed out that trial counsel had applied to the trial judge for a voir dire on the basis that the use of the evidence would be unfair, and disclaimed any suggestion that it was not voluntary. The Court relied upon Hawkins v R (unreported, NSWCCA, 17 December 1992).

6. Hawkins also concerned a refusal to hear a (full) voir dire on the admissibility of a confession. Badgery-Parker J said, at p6:

   The onus is on the Crown to prove that a confessional statement is voluntary but there must be some matter to raise the issue. In this, as in any other area of a trial and of an appeal, regard must be had to the nature of the issues that were in fact raised.

7. Lars and Hawkins were cases about the discretion to grant a voir dire. But the statements of principle they contain are expressed broadly, and were certainly applied to their full effect in Meier. They reflect another facet of the principles of adversarial justice from which r 4 stems. A trial judge is entitled to, and counsel are obliged to provide, a proper foundation on which to base a ruling when asked to exercise a discretionary power. Objections to evidence are not at-large contentions concerning admissibility; they are vehicles for the raising of specific issues.

8. This is a related concept to the principle that it is for the parties to define the issues at trial and that respect must be accorded to the decisions of trial counsel as to what evidence is to be the subject of objection, and the basis for any such objection.

9. In the present case, if the "additional issues" had been thought to represent matters that could be raised to the potential benefit of the appellant, no doubt his counsel would have raised them with the trial judge and pursued them in his cross-examination of Lt Griffith. Lt Griffith would have been afforded an opportunity to agree with, contradict, or otherwise explain, propositions now put in criticism of his conduct. The Crown would have been afforded an opportunity to adduce other evidence it may have considered relevant to these issues. Absent such an approach having been taken at trial, I do not accept the submission of counsel for the appellant that there is a sufficient evidentiary foundation for this Court to consider and determine the "additional issues". The problem is the same as that identified by Barr J in Aslett v R [2006] NSWCCA 49 at [54]-[66] where a lack of evidence on an issue pursued on appeal but not at trial led to r 4 being applied and leave being refused.

10. The ultimate question is whether admission of the evidence of Lt Griffith as to his interview of the appellant resulted in a miscarriage of justice. Having regard to the issues in the trial, and all of the evidence (and I have specific regard to that of the appellant in which there was not any real dispute about his understanding of the questions on the AFMA cards and the responses he gave) I am not persuaded that there was any miscarriage.

11. Leave to rely upon the "additional issues" should be refused.

Ground 2: The trial miscarried as the Judge erred in failing to direct the jury it must be satisfied beyond reasonable doubt that:

(a) The Accused intended that the 5 or more persons be brought to a destination that was part of Australia; and

(b) That the accused knew the destination was part of Australia.

1. I will elaborate shortly, but at the outset it can be said that this ground is based upon a contention that the jury might have reasoned that the appellant understood that the destination of the passengers was Christmas Island and that this was enough, regardless of whether he knew that it was a part of Australia.

2. In Taru Ali v R [2013] NSWCCA 211 at [27], I set out the elements of the offence of aggravated people smuggling, deriving the same from The Queen v Amad [2012] NTCCA 1; (2012) 256 FLR 423, as follows:

   1. The accused facilitated the bringing to Australia of a group of five or more passengers.

   2. The accused meant to facilitate the bringing of the passengers to Australia.

   3. At least five of the passengers were people to whom s 42(1) of the Migration Act applies. That is, the passengers were not Australian citizens; and at the relevant time they did not have valid visas permitting them to enter Australia.

   4. The accused was reckless as to whether the passengers had a lawful right to come to Australia.

3. It was clarified in PJ v The Queen [2012] VSCA 146; (2012) 268 FLR 99 that it was a requirement of proof of the second element that the Crown establish that the accused was aware that Australia was the intended destination of the 5 or more persons.

4. In Sunada v R; Jaru v R [2012] NSWCCA 187, the Crown conceded that the trial judge had erred by simply directing the jury that it was enough if the accused knew the destination was Ashmore Reef.

5. The same error was identified in Alomalu v R [2012] NSWCCA 255. Not only was the summing up erroneous but the verdict was also unreasonable and unsupported by the evidence. McClellan CJ at CL observed (at [38]):

   In the last decade the arrival to Australia of asylum seekers via boat from Indonesia is an issue that has received considerable focus in the Australian media. As a result, many Australians would be aware of the location of Ashmore Reef, know that it is part of Australia and be conscious of its significance as a port of entry for asylum seekers. Many Australians would readily infer that a boat that departs from a port in Indonesia with 78 passengers from Middle Eastern nations and charts a course in a southerly direction is likely to have a final destination of Australia. However, it is a different matter for a poor, itinerate worker from Indonesia. Knowledge that an Australian would have cannot be attributed without evidence to an Indonesian. The inevitable outcome is that I have a doubt about whether the appellant knew that he was facilitating the bringing of persons to Australia and that is a doubt that the jury should have had. The issue is not capable of being resolved adversely to the appellant by any advantage which the jury may have had. It follows that the verdict is unreasonable and cannot be supported by the evidence.

6. In Taru Ali v R it was argued that the jury might have concluded that the appellant was only aware that the destination of the passengers was Ashmore Reef. In that event, the jury should have been directed that they must be satisfied beyond reasonable doubt that he was aware that Ashmore Reef was part of Australia.

7. I observed (at [51]-[52]) that the Crown case concerning the first two elements of the offence was squarely focussed on the question of whether the appellant was aware that he was facilitating the bringing or coming of a group of at least five persons to Australia. The defence case was that the appellant had never heard of Australia or of Ashmore Reef. He did not know where Australia was. He thought that he was taking his passengers from Java to Bali. When the boat had passed Bali he had no idea where it was going. He had been told simply to maintain a southerly course. As it turned out, the boat ended up at Ashmore Reef.

8. In my judgment, with which Johnson and Price JJ agreed, I concluded (at [55]):

   Reference to Ashmore Reef in the evidence did not convert the defence case to something beyond what the appellant had said in his evidence or make a question of whether he knew Ashmore Reef was part of Australia an issue in the trial.

9. A similar issue was raised by the appellants in Bin Radimin v R; Bin Zakhria v R [2013] NSWCCA 220. The appellants comprised the crew of a vessel that departed from Bali with 27 asylum seekers on board and travelled to Browse Island, some 180 kms off the coast of Western Australia. Evidence by passenger witnesses included that the appellants were heard using the word "Australia" as well as "Ashmore Reef" during the voyage. The defence cases were that the appellants did not know that they were going to Australia and did not intend to do so. Bin Radimin had been offered a job taking people on a holiday. Bin Zakhria thought he was taking passengers on a cruise to see the sea around Bali for 10 days.

10. The Crown argued that its case was that the appellants intended to facilitate the bringing of the passengers to Australia and that there was no basis to isolate, as the appellants sought to do on the appeal, references to Ashmore Reef or Island so as to require an additional direction to be given that the appellants knew that it was a part of Australia.

11. After a review of the evidence of some of the passenger witnesses, Hoeben CJ at CL, with whom Hidden and Fullerton JJ agreed, concluded (at [59]):

    What is clear from the extracts of evidence is that the references to Ashmore Reef/Island (which came from only two of the four passengers) were largely incidental and in context were used with other words such as "Australia". The preponderance of evidence was to the effect that the applicants were heard to use the word "Australia" and other expressions such as "federal police" in a context which allowed the jury, if it accepted that evidence, to conclude that the applicants intended to facilitate the coming to Australia of the passengers. In that regard, the characterisation of the evidence of these witnesses by the Crown should be accepted.

12. For this reason, Hoeben CJ at CL concluded that the direction given by the trial judge was appropriate; the factual basis which would require an additional direction that the appellants were aware that Ashmore Reef was part of Australia was not established by the evidence.

13. In the present case the trial judge directed the jury about the element of the offence in question as follows:

    The Crown has to prove that the accused knew that what the accused was doing was assisting in bringing the group to Australia. That is, he knew that the intended destination of those people was Australia. So in deciding what the accused intended, that is whether he meant to bring this group to Australia, you need to decide what the accused knew about the passengers' intended destination at the time that they boarded the vessel or when he was assisting them to come to Australia.

1. Her Honour reminded the jury that the defence case was that the appellant did not intend to facilitate bringing the passengers to Australia. He thought he was taking the passengers to one or another place in Indonesia, Lombok or Enggano Island. On the other hand, the Crown case was that he was aware the passengers were destined for Australia, based upon the evidence of the passenger witnesses and upon the accused's exchange with Lt Griffith.

2. The trial judge warned the jury about the potential unreliability of the evidence of the exchange with Lt Griffith. She provided reasons why it may be unreliable and reminded the jury of the competing submissions of counsel. She told the jury that even if they accepted that the word "Australie" was said in respect to the question "Why are you in this area?" there was then an issue as to what the appellant intended. Was it a responsive answer to the question or was it simply the repetition of a word he had heard spoken by other passengers or by naval personnel?

3. Her Honour also gave a warning to the jury about the potential unreliability of the evidence of the passenger witnesses. She highlighted for the jury's consideration that the appellant and the passengers did not have a language in common; there was no interpreter; no contemporaneous record was made of whatever passed between them; and the exchanges occurred during "a stressful period of time for everyone on that voyage".

4. It was submitted that the jury might not have accepted that the references to Australia attributed to the appellant by Lt Griffith and by the passenger witnesses indicated knowledge that the destination of the passengers was this country. The jury might have concluded that the references to "Christmas" and "Christmas Island" in the evidence of the passenger witnesses, coupled with the fact that (despite the appellant's evidence) Christmas Island was the intended destination of the vessel, indicated that the appellant's knowledge was confined to the passengers being destined for that place. In that event, it was submitted, it was necessary for the trial judge to give an additional direction that the appellant was aware that Christmas Island was part of Australia.

5. The point was taken at trial but rejected by the judge. Her Honour said:

   The way the case has been run, in my view, the case is that the accused knew that Australia was the ultimate destination. That arises from the evidence of Officer Griffith. It is going to unnecessarily complicate the matter.

   It doesn't seem to me to be one of those cases where I need to get into that issue. Your client's case is that at all times he believed he was heading to Enggano Island. The Crown case is, I'm assuming based on the combination of the circumstances and what he said to Lieutenant Griffith.

6. The closing addresses of counsel, and the correct identification of the elements of the offence and the summary of the issues between the parties in the summing up were focussed upon the question whether the appellant was aware that the intended destination of the passengers was Australia. No-one suggested that it would suffice that the appellant was aware only that the passengers were going to Christmas Island.

7. It was contended in this Court (AWS [108]) that:

   The Crown case depended on proving either:

   (a) the appellant believed the passengers were bound for "Australia" (and therein facilitated their journey) and it did not matter where the boat ended up, or

   (b) the appellant believed the passengers were bound for Christmas Island and that the appellant knew that Christmas Island was part of Australia.

8. It was submitted that the words attributed to the appellant ("Australie" and "Christmas Island") gave rise to two methods of proof as set out above: namely, either a belief that Australia was the destination or belief that Christmas Island was the destination and that it was part of Australia.

9. It is noted that these submissions were identical to those that were made in Bin Radimin v R; Bin Zakhria v R: see the judgment of Hoeben CJ at CL at [29]-[30].

10. The Crown submitted that its case did not depend upon proving either one of the two propositions asserted in the appellant's submissions. Its case was always and only put by reference to the appellant intending to facilitate the passage of five or more people to Australia. References in the evidence to "Christmas Island" did not determine what the issues were at trial. It was not the defence case that the appellant may have intended to facilitate the bringing or coming of the passengers to Christmas Island but not to Australia. The factual basis that in some cases may require a trial judge to give a further direction did not exist in this case.

11. The evidence relevant to this ground has been reviewed earlier in this judgment. The evidence of the passenger witnesses was to the effect that the appellant had referred both to Australia and Christmas Island. There was also the evidence of Lt Griffith, if the jury accepted it, of the appellant's answer to the question on card 38 which, if it did anything favouring the Crown, supported proof of the appellant's awareness of the destination being Australia.

12. In my view, there was no realistic prospect of the jury taking a selective approach to the evidence: being satisfied that the appellant was aware of the passengers' destination was Christmas Island but not aware of it being Australia. For the same reasons as the argument was rejected in Taru Ali v R and Bin Radimin v R; Bin Zakhria, the appellant's argument must be rejected in this case.

Order

1. I propose the following order:

   Appeal against conviction dismissed.

2. BELLEW J: I agree with R A Hulme J.

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