Kia v The Queen
[2011] WASCA 104
•20 APRIL 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KIA -v- THE QUEEN [2011] WASCA 104
CORAM: MARTIN CJ
McLURE P
MAZZA J
HEARD: 22 MARCH 2011
DELIVERED : 20 APRIL 2011
FILE NO/S: CACR 80 of 2010
BETWEEN: USMAN KIA
Appellant
AND
THE QUEEN
Respondent
FILE NO/S :CACR 81 of 2010
BETWEEN :DAUD MAU
Appellant
AND
THE QUEEN
Respondent
FILE NO/S :CACR 83 of 2010
BETWEEN :TITUS LOBAN
Appellant
AND
THE QUEEN
Respondent
FILE NO/S :CACR 124 of 2010
BETWEEN :YAN PANDU
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
For File No : CACR 80 of 2010
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :EATON DCJ
File No :IND 95 of 2010
For File No : CACR 81 of 2010
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :EATON DCJ
File No :IND 95 of 2010
For File No : CACR 83 of 2010
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :EATON DCJ
File No :IND 95 of 2010
For File No : CACR 124 of 2010
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :EATON DCJ
File No :IND 95 of 2010
Catchwords:
Criminal law - Appeal against conviction - Facilitating the bringing or coming to Australia of a group of five or more people to whom s 42(1) of the Migration Act 1958 (Cth) applied reckless as to whether the people had the right to come to Australia - Duress - Section 10.2 Criminal Code (Cth) - Whether error in duress direction - Test of reasonableness - Whether error in Liberato direction - Admissibility of map evidence - Non-disclosure by prosecution - Turns on own facts
Legislation:
Criminal Code (Cth), s 10.2
Criminal Procedure Act 2004 (Cth), s 97(4)
Migration Act 1958 (Cth), s 42(1), s 232, s 232A
Result:
Appeals dismissed
Category: B
Representation:
CACR 80 of 2010
Counsel:
Appellant: Mr S B Watters
Respondent: Mr A L Troy
Solicitors:
Appellant: Thames Legal
Respondent: Director of Public Prosecutions (Cth)
CACR 81 of 2010
Counsel:
Appellant: Mr S B Watters
Respondent: Mr A L Troy
Solicitors:
Appellant: Thames Legal
Respondent: Director of Public Prosecutions (Cth)
CACR 83 of 2010
Counsel:
Appellant: Ms F R Veltman
Respondent: Mr A L Troy
Solicitors:
Appellant: Frances Veltman
Respondent: Director of Public Prosecutions (Cth)
CACR 124 of 2010
Counsel:
Appellant: Mr S B Watters
Respondent: Mr A L Troy
Solicitors:
Appellant: Marc G Saupin Pty Ltd
Respondent: Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Alford v Magee [1952] HCA 3; (1952) 85 CLR 437
Cooper v The State of Western Australia [2010] WASCA 190
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Johnson v The State of Western Australia [2008] WASCA 164; [2008] 186 A Crim R 531
Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
Morris v The Queen [2006] WASCA 142
Oblach v The Queen (2005) 65 NSWLR 75
R v Abusafiah (1991) 24 NSWLR 531
MARTIN CJ: Each of these appeals should be dismissed for the reasons given by McLure P, with which I agree.
McLURE P: In these four appeals each appellant appeals from their conviction of facilitating the bringing or coming to Australia of a group of five or more people to whom subs 42(1) of the Migration Act 1958 (Cth) applied, namely a group of 74 Afghani, Iraqi and other people, and did so reckless as to whether the people had the right to come to Australia, contrary to s 232A of the Migration Act.
Each of the appellants were crew members of a vessel, described by Australian authorities as SIEV 43, carrying the 74 passengers. The vessel departed from Surabaya in Indonesia and anchored near Probolinggo where the passengers boarded the vessel from a number of small boats during the night. The vessel then sailed towards Rote Island. Before arriving at Rote Island, five of the nine crew on the vessel left it in a small boat. One of the five, Mr Tinus, described as the captain of the vessel, instructed one of the appellants, Usman Kia, to head south in the vessel and that he (Mr Kia) and the other crew members would be picked up in the morning. The appellants were the four remaining crew members on the vessel. The vessel was intercepted by the Australian Navy four nautical miles from Ashmore Reef and taken to Christmas Island.
Each appellant gave evidence at trial in the course of which they satisfied the evidentiary burden of raising the defence of duress under s 10.2 of the Criminal Code (Cth) (Code).
Section 10.2 provides:
(1)A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence under duress.
(2)A person carries out conduct under duress if and only if he or she reasonably believes that:
(a)a threat has been made that will be carried out unless an offence is committed; and
(b)there is no reasonable way that the threat can be rendered ineffective; and
(c)the conduct is a reasonable response to the threat.
(3)This section does not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily
associating for the purpose of carrying out conduct of the kind actually carried out.
There are two grounds common to all appeals. They are that the trial judge erred and there was a miscarriage of justice:
(1)as a result of the trial judge's failure to direct the jury that reasonableness for the purpose of the defence of duress under s 10.2 of the Code was determined by reference to a person of the same age, gender and maturity as the relevant accused in the circumstances in which he found himself;
(2)because the trial judge equated the Liberato direction (Liberato v The Queen (1985) 159 CLR 507) to a rejection of part of the appellants' evidence.
The appellant Titus Loban relies on two additional grounds. He contends that a map was wrongly tendered in evidence (ground 3) and that the trial judge's failure to comment on non‑disclosure by the prosecution 'contributed to' a miscarriage of justice (ground 4).
Evidence on duress
Yan Pandu's evidence on the subject of duress is as follows. He was aged 19 at the time of trial (27 April 2010). He lived in Sabu, Indonesia, with his parents. He said that two hours (after leaving Rote Island) the four remaining crew members (the appellants) agreed that they should turn the boat and head back to Rote Island. After the boat turned towards Rote Island, he noticed a reaction from the passengers. He said:
And what was that reaction?‑‑‑We tried to turn the boat twice and they said to us several times, 'if you turn the boat heading back to Indonesia, we'll throw you into the water'.
Okay. Were there are any other statements made or gestures?‑‑‑Yes.
And what was ‑ can you tell the court what that was, what you saw?‑‑‑They said if this boat ever to turn back to Indonesia, they said that they would do this. And also they gestured that they would push us into the water.
The witness was asked to show the first gesture which was drawing an index finger across the throat. The second gesture involved a pushing motion. The witness was asked 'What did you do then' and he said:
Because our lives were threatened, we followed their instructions.
When asked what an identified passenger had said, Mr Pandu said:
When we tried to turn the boat, he asked me, 'Indonesia'? I said yes. And then he said, 'If we go back to Indonesia, I'll kill you and throw your body into the water'.
Now, what ‑ what language was ‑ was ‑ did this occur in?‑‑‑Sign language.
Mr Kia was over 40 years of age at the time of trial. He was born and lived all his life in Sabu. He had no formal education beyond second grade primary school and was a fisherman and farm labourer. His evidence was as follows:
At some stage after [the other crew members] got off the boat, did you get a bit worried?‑‑‑Yes.
What were you worried about?‑‑‑Because it didn't seem right.
When it didn't seem right, what did you do?‑‑‑I [discussed] with my friends and I said, 'We have to return. This is not right.'
His friends were the other appellants. After he had turned the boat he said:
Someone told me with gestures not to do it.
Who told you with gestures not to do it?‑‑‑The passengers.
Was it one passenger or more than one passenger?‑‑‑More than one.
How many passengers?‑‑‑Around three.
…
What gestures did they do?‑‑‑When I turn the steering, he approached and he tap on my shoulder, and he ‑ and he pointed like the turning direction. And I said, 'Indonesia' and he said, 'No ‑ no Indonesia'. And he said, 'Australia' and I said, 'No, Indonesia'. And he said, 'Indonesia ‑ you'.
Now Madam Interpreter, the witness put two hands in front of himself and indicated in a pushing motion?‑‑‑Yes.
When the person did that, what did you understand that meant?‑‑‑If I return, then I'm sure I would be thrown into the sea.
What did you think he meant when he did the pushing motion?‑‑‑I will die, definitely.
When he did the pushing motion, could you see any land around the boat?‑‑‑No.
Mr Kia also gave evidence of a second occasion in which he turned the boat around towards Indonesia. One of the passengers told him to go back on course which he did because 'then I will definitely be dead. They will throw me in the water' (ts 628).
Daud Mau was aged 26 at the time of the trial. He also was from Sabu. He had done six years of primary school and was a farm labourer. His evidence was as follows:
And did there come a time when the mood on board the boat from the passengers changed, subsequent to the crew getting off?‑‑‑I didn't hear it first hand, I was told [by] the ‑ the other Indonesia crewmen that the passengers threatened them.
And did you see any evidence of such threats or hear any evidence of such threats from the passengers towards your co‑accuseds; the crew?‑‑‑No, I didn't see it first hand.
I was told by the ‑ the other Indonesian crewmen that the passengers threatened them (ts 696).
Mr Loban was aged 24 at the time of trial and also lived in Sabu. He did two years of high school and was a fisherman and labourer. He gave evidence that the Indonesian crew decided to turn the boat around and head towards Rote Island. He continued:
I was standing behind Mr Usman when he was on the wheel steering, and he turn the ‑ the steering wheel in order to turn the direction of the boat. At the time, one passenger coming from the right hand side approaching us, as another two coming from behind, too. These passengers came to the wheelhouse and pointing to the compass. And then one of the passengers tap the shoulders ‑ tap Mr Usman on the shoulder; he hit his shoulder in fact, yes. There's one man with a necklace, wearing a necklace. And facing him ‑ you see, in sign language say ‑ with fingers like this ‑ 'Indonesia' ‑ and is both hands putting forward.
Okay. So what I'm seeing is a finger going across the throat and a push ‑ ‑ That's true.
And that accompanied the word 'Indonesia'. Is that right?‑‑‑That's correct (ts 739).
Mr Loban said he thought he may be harmed if he did not follow the demands (ts 741). He also gave evidence of a second attempt to turn the boat around towards Indonesia (ts 743). He said that passengers came out, noticed the compass change direction and made another threat with sign language. The threat was a gesture with fingers which the witness said made him afraid that the crew would be hurt very badly (ts 745).
Whether error in duress direction
After reading out s 10.2 of the Code in its entirety the trial judge said (ts 875 ‑ 877):
Each accused has given evidence to the effect that following their decision to turn the SIEV 43 around and return to Rote Island and the actual change in course to that effect, threats were made to the effect that if they did so, they'd be pushed overboard. Given that the vessel was well at sea, the threat amounted potentially I would have thought to a death threat. In order to avoid being thrown overboard in accordance with that threat the boat must, it was said, continue on its journey south. For the defence to operate in the case of each accused man, there must have been on the part of each a belief that each would be killed by some of the passengers or thrown overboard, amounting to the same thing, if the boat deviated from the southerly course. They must believe also that there was no reasonable way of rendering the threat ineffective, and that continuing to travelling south was a reasonable response to that threat in all of the circumstances that they faced. The requirement that each of the accused men reasonably believe involves a finding on your part that each man as a matter of fact did hold that belief once the threat had been made and that he did so reasonably. Was it reasonable for each to believe, in all of the circumstances as you find them to be, that the threat would be carried out? In other words, that they would be thrown overboard or killed if they turned the boat around.
That there was no reasonable way of rendering the threat ineffective, and that what they did was a reasonable response to the threat. Ordinarily of course, a reasonable response or an appropriate response to such a threat carried out on the mainland in one of our cities or towns is to seek the protection of the police, to report the [matter] or bring in the authorities in one way or another. That's the appropriate way you deal with things. But of course here, they're in ‑ they're at sea. They're not in a situation to dial 000 or call, 'Help police,' or what have you. You have to have regard to the circumstances that each of them faced at the time. It's a question for you as a matter of fact as to whether you accept that the threats were made, and so forth, and what they believed as a matter of fact and whether or not, if they did have a belief, it was reasonably held as a matter for you to judge. (emphasis added)
Under s 10.2(2), an accused must believe that:
(a)a threat has been made that will be carried out unless an offence is committed; and
(b)there is no reasonable way that the threat can be rendered ineffective; and
(c)the conduct is a reasonable response to the threat.
In addition, the accused's belief as to each of the matters in pars (a), (b) and (c) must be reasonably held.
The trial judge did not expressly venture into the area of uncertainty discussed in Morris v The Queen [2006] WASCA 142 [135] ‑ [140]. As noted in Morris, on my reading of the judgments in Oblach v The Queen (2005) 65 NSWLR 75, an accused's belief must for the purposes of s 10.2.(2) of the Code be objectively reasonable having regard to the circumstances in which he found himself, but without regard to any of his personal characteristics. The trial judge in this case did not direct the jury to disregard any of the personal characteristics of the appellants.
Under the common law defence of duress, the test of reasonableness is determined by reference to a person of the same age, gender and maturity as the appellant in the circumstances in which he found himself: R v Abusafiah (1991) 24 NSWLR 531, 544 ‑ 546. The trial judge in this case did not direct the jury to determine reasonableness by reference to the age, gender and maturity of the appellants.
The trial judge relied on the words of the section without elaboration to convey to the jury what the section required, namely that each appellant had to believe the relevant matters and that his belief must be reasonable in all the circumstances. The jury's attention was not drawn to the broader contextual matters (beyond the text of s 10.2) relied on by the members of the court in Oblach for their interpretation of s 10.2.
In my view, no reasonable jury hearing the duress direction given by the trial judge would exclude from consideration any personal characteristics of the appellants that may have had the capacity to impact on the reasonableness of their beliefs. In those circumstances it is unnecessary to determine whether Oblach should be followed, bearing in mind the approach this court must take to that issue: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89.
Further and in any event, there was nothing in the conduct of the trial or the evidence to suggest that the age, gender or maturity of any of the appellants was in any way relevant to their perception or appreciation of the objective circumstances in which they found themselves. This manifests itself in the trial judge's direction about the content of the threats and the life threatening consequences if carried out. The fact that the Indonesian crew and the passengers had no common language that enabled them to communicate in words is a relevant surrounding circumstance, not a personal characteristic.
None of the appellants are in any way disadvantaged by the omission of an express direction to the jury that reasonableness was to be gauged by reference to the appellants' age, gender and maturity. The direction was appropriate having regard to the live issues at trial: Alford v Magee (1952) 85 CLR 437, 466. Accordingly there is no error in the direction and no miscarriage of justice. I would dismiss ground 1 in each appeal.
Ground 2 - Liberato direction
The direction of which the appellants complain is in the following terms:
Each accused began this trial with the benefit of a presumption of innocence. You're the judges of the facts of the case. You've got all the evidence before you now. Importantly if you were, in considering the evidence, to reject a part of what an accused person has said in their evidence, then you don't automatically arrive at a conclusion of guilt. In those circumstances ‑ I'm not suggesting that you will necessarily reject any part of what any accused has said in their evidence ‑ But if you were to do so, you wouldn't automatically arrive at a conclusion of guilt. You would put that to one side and say, 'Well, I don't accept that. I'll put that to one side'. Now, let's look at the remainder of the evidence and ask yourselves that vital question, 'Am I satisfied beyond reasonable doubt? Has the Commonwealth satisfied me beyond reasonable doubt?'. (ts 906 ‑ 907).
The trial judge had raised the same issue earlier (ts 893 ‑ 894). In closing, the prosecution had not asked the jury to reject all of the evidence of the appellants. Indeed, the prosecution case relied on aspects of their evidence, including that each were offered a very significant amount of money to crew the vessel. With that in mind the prosecutor said to the jury that if they did not accept parts of the evidence of the appellants they had to put it to one side. The trial judge continued:
That reflects what I will say to you shortly. You'd put their evidence to one side if you find it unacceptable or a part of it unacceptable. You don't automatically proceed to a verdict of guilty because you reject some part of what an accused person said. That's because they don't carry any burden of proof and don't have to prove anything. You put it to one side and look at the remainder of the case and ask yourselves, 'Am I satisfied beyond reasonable doubt?'
The appellants' complaint is that the trial judge should have directed the jury that even if they rejected all of an appellant's testimony, they could still only convict that accused if satisfied beyond reasonable doubt of his guilt on the evidence adduced by the prosecution.
The trial judge's reference to part of the evidence given by the appellants reflected the fact that the prosecution relied on, and did not challenge, important aspects of the appellants' evidence. The direction was appropriately tailored to reflect the course of the trial. Even if that is incorrect, there is no merit in the ground for additional reasons.
A Liberato direction is ordinarily given when the case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness and the outcome depends on who is to be believed: Liberato v The Queen (515).
The only relevant conflict identified by the appellants was with the evidence given by one of the passengers on the vessel, Mr Soltani. He was asked in cross‑examination whether he saw any of the passengers gesticulating with their fingers across their necks as if to say 'we'd better head on to Australia or you're going to get your throat cut' to which Mr Soltani said:
No, nothing happened. No ‑ no verbal things as such, or anything exchanged … (ts 143).
He also gave evidence in cross‑examination that the four crewmen were not held against their will in the cabin by two or more passengers (ts 161 ‑ 164). The question to which the witness was responding went beyond the evidence given by the appellants.
Mr Soltani was one of only 10 passengers called by the prosecution to give evidence. There were 74 passengers on the vessel. A denial by one passenger is consistent with him not having been an eye witness to the events of which the appellants spoke. This is not a case in which the outcome depended on the choice of whether to believe a defence witness or a prosecution witness.
The trial judge did not invite the jury to choose between the evidence adduced by the prosecution and the evidence adduced by the defence and this is not a case in which the jury would doubtless ask themselves that question in any event. Accordingly, a failure to give a Liberato direction in this case would not have given rise to a miscarriage of justice: Johnson v The State of Western Australia [2008] WASCA 164; [2008] 186 A Crim R 531 [14] ‑ [17]; Cooper v The State of Western Australia [2010] WASCA 190 [37] ‑ [38].
I would dismiss ground 2 in each appeal.
The admissibility of the map
This ground is relied on only by the appellant Titus Loban. He claims that the admission of the map and the failure by the trial judge to remove it as an exhibit and firmly direct that it was not part of the evidence resulted in a miscarriage of justice.
The map, an Australian Fisheries Management Authority map, became exhibit 4. The prosecutor referred in opening to evidence from passengers that the crew were using a map or maps to steer the vessel (ts 68, 69). The prosecutor also stated that crew from the Australian naval vessel (HMAS Larrakia) who boarded the vessel found a map with Ashmore Reef marked on it, indicating the vessel was clearly headed there (ts 71, 73).
Terence Imms led the boarding party from HMAS Larrakia onto the vessel. In examination‑in‑chief he was handed a map and asked whether he found it on the vessel. He said he did not find it on the vessel and that the map was very similar to ones that he had showed to the passengers on the boat. He said that several of the maps were distributed to the passengers when they thought the Navy was taking them back to Indonesia (ts 416). The map shown to Mr Imms was not tendered in evidence at this stage.
Mr Imms was cross‑examined by counsel for Mr Pandu about map as follows:
Now, there was also ‑ you mentioned some maps that were handed out. I believe one ‑ one came up and it's been tendered into evidence---That's correct, yes.
Now, are those maps ‑ were they handed out by the crew, were they‑‑‑They were handed out by either myself, actually it was Leading Seaman Caves, who was my 2IC of the boarding party, to take down to the hold to show the people in the hold exactly where we were and where we were going.
How many maps were there, Mr Imms---I'm not sure. I normally carry approximately six in my boarding party pack (ts 423).
The prosecutor had not tendered (or marked for identification) the maps the subject of her questions to Mr Imms. It is not clear what map was being discussed in cross‑examination.
Counsel for Mr Kia returned to the issue. He called for the map that the prosecutor had handed to Mr Imms and questioned Mr Imms about that map. The cross‑examination was as follows:
Now, can I just hand this map to you? Thank you. Now, obviously you won't be able to identify whether that was one of the maps that you had, but is that of the type of map that you brought on board the boat---Yes, it is.
It's in Indonesian, but that was the ‑ the state in which ‑ or language in which the map was written that you brought on board the boat as well, wasn't it---There would have been an Indonesian one and there was also ‑ would have been one in English as well.
Now, did you leave any of those maps on board at any ‑ ‑ ----I'm not sure.
All right. Is it possible that you or any of the other seamen with you in the boarding party left one of those maps on board the boat---Yes (ts 429).
Counsel for Mr Kia tendered the map without objection and it became exhibit 4.
In summing up, the trial judge repeated what the prosecutor had said during her closing. The trial judge said:
The map, exhibit 4, found she said does not appear to be the map used by the crew during the voyage. In all probability you'll find as a matter of fact, she said, that it was taken on board by Mr Imms who led the boarding party. It was, I think, the Australian Fisheries Management Authority map with Indonesian writing on it (ts 893).
The appellants used Mr Imms' evidence concerning the map to exemplify what they said was a disgraceful investigation aimed at finding evidence to prove a crime rather than to seek out truth (ts 898). Summarising the defence case on this topic the trial judge said:
The prosecution relied upon the map that was found on the boat, but it was admitted by Officer Imms from the Navy that he probably took it on to the boat and left it there when he departed (ts 899).
The map (exhibit 4) had been the subject of cross‑examination and was tendered by one of the appellants. It was relied on by the appellants as an example of the inadequacies in the investigation of the offences. There was no proper basis for removing the exhibit from the record. Indeed, no such application was made at trial.
In circumstances where there was agreement between the prosecution and the defence that the map was probably taken onto the
vessel by the Navy and their common position was repeated by the trial judge in his summing up, it would have been patently apparent to the jury that they could not be satisfied beyond reasonable doubt that exhibit 4 was the map used by the Indonesian crew. Ground 3 should be dismissed.
Ground 4 - non‑disclosure
Section 97(4) of the Criminal Procedure Act 2004 (WA) provides:
The failure by a party to obey a disclosure requirement may be the subject of adverse comment to the jury by the judge, the accused or the prosecutor.
Investigating police officers only took statements from approximately 25 of the 74 passengers on the vessel. Counsel for Mr Kia cross‑examined the investigating officer, Mark St Jorre, at length on the failure to disclose information, and in particular, records of interviews of all the passengers on the vessel by officers from the Department of Immigration and Citizenship (DIAC).
Counsel for Mr Kia requested the trial judge to make in his summing up an adverse comment under s 97(4) about the failure of the prosecutor to disclose all relevant material to the defence (ts 791). The trial judge did not do so.
Section 97(4) gives the judge a discretion to make an adverse comment. In those circumstances, the appellant is required to establish that the trial judge made an express or implied material error of fact or law in the exercise of his discretion. The appellant fails at the first hurdle. Further, there is no evidence to suggest that there was any information in the DIAC records of interviews that may have assisted Mr Loban in his defence. Following the trial, counsel for Mr Loban had the opportunity to inspect all the DIAC records of interviews. None is relied on as giving rise to any substantive unfairness. Moreover, the appellants relied on the failure of police to interview all the passengers as a ground for accepting their evidence. The appellant has not established that the trial judge's failure to comment has occasioned any miscarriage of justice. Ground 4 should be dismissed.
For these reasons, I would dismiss all the appeals.
MAZZA J: I agree with McLure P.
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