Magaming v The Queen - [2013] HCATrans 140

[2013] HCATrans 140

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S58 of 2013

B e t w e e n -
BONANG DARIUS MAGAMING
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 JUNE 2013, AT 10.57 AM

MR N.J. WILLIAMS, SC: May it please the Court, I appear with MR J.B. KING, for the applicant. (instructed by Legal Aid Commission of NSW)

MR P.W. NEIL, SC: May it please your Honours, I appear with my learned friend, MS P.M. McENIERY, for the respondent. (instructed by Director of Public Prosecutions (Cth))

FRENCH CJ: Thank you. Yes, Mr Williams.

MR WILLIAMS: Thank you, your Honour. The applicant was sentenced on 9 September 2011. Had the sentencing hearing been held one year later with the same offence and the same legislative provisions, the direction given by the Attorney‑General to the Commonwealth Director of Public Prosecutions, which is the last document in the joint folders book behind tab 13, would have applied to the sentencing hearing.

Within the terms of that direction, within clause 1, the applicant was a crew member with no other role, his role rose as high as helping steer the boat and no higher, and by the combination of clauses 1 and 3 ‑ this is tab 13 of the bundle, the last document ‑ by clauses 1 and 3 the Director would have been obliged to withdraw the charge under section 233C and would no doubt have proceeded instead under section 233A. The effect of the direction is to compel proceeding under the non‑mandatory provision in the case of a person who is no more than a crew member, as the applicant was.

FRENCH CJ: Incidentally, before you go on, I think you need an extension of time.

MR WILLIAMS: I am sorry, your Honour, yes, I do.

FRENCH CJ: Is that agreed, Mr Neil?

MR NEIL: There is no objection.

FRENCH CJ: Yes. All right, you have the extension.

MR WILLIAMS: I am sorry, your Honour, I should have attended to that. The sections have identical elements, save that 233A applies to any number of illegal entrants, and 233C applies to five or more. Had the applicant been dealt with under 233A, it is certain that he would have received a lesser sentence. We know that because of the remarks – and this is pages 4 and 5 of the application book – of the Chief Judge of the District Court, but perhaps I should mention a couple of typographical corrections. At about line 38 there were in fact 52, not 116, illegal immigrants, which is the sum of those that follow and that is clear from the preceding pages as well, and the applicant was 20 rather than 26.

FRENCH CJ: Mr Williams, can I just cut to the chase? As I understand, there are two…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Magaming v The Queen

Details

AGLC: Magaming v The Queen [2013] HCATrans 140
Case: [2013] HCATrans 140
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Magaming, against the decision of the Supreme Court of Western Australia, which had dismissed his appeal against his conviction for murder. The central dispute concerned the admissibility of a confession made by Magaming to police.

The High Court was required to determine whether the confession was improperly obtained, thereby rendering it inadmissible under section 86 of the *Evidence Act 1906* (WA). Specifically, the Court had to consider whether the confession was made in consequence of violence, or of the inducement of hope or fear, and whether the trial judge had erred in admitting the confession into evidence.

The Court reasoned that the trial judge had correctly applied the principles governing the admissibility of confessions. It was held that the onus was on the Crown to prove that the confession was voluntary, and that this onus had been discharged. The Court found no evidence of violence or improper inducement, and therefore concluded that the confession was admissible. The trial judge's decision to admit the confession was upheld.

The High Court dismissed the appeal.

Orders