Muslimin v The Queen - [2010] HCATrans 5

[2010] HCATrans 005

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D12 of 2009

B e t w e e n -
MUSLIMIN
Applicant
and
THE QUEEN
Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 5 FEBRUARY 2010, AT 10.01 AM

MR A. WYVILL, SC: If it pleases the Court, I appear with my learned friend, MR S.W. LEE, for the appellant. (instructed by Northern Territory Legal Aid Commission)

MR P.A. WILLEE, QC: If your Honours please, I appear for the respondent with my learned friend, MS L.A. TAYLOR. (instructed by Director of Public Prosecutions (Cth))

FRENCH CJ: Yes, Mr Wyvill.

MR WYVILL: Thank you, your Honour. Your Honours, section 78B notices have been issued by the respondent. They are dated 28 January 2010.

FRENCH CJ: I take it, Mr Wyvill, from your submissions that you advance this case purely as one of statutory construction?

MR WYVILL: That is right, your Honour, yes.

FRENCH CJ: And you disallow any issue involving the Constitution or its interpretation?

MR WYVILL: That is right, your Honour, yes. We have nothing further to say about the point. They are set out in our submissions.

FRENCH CJ: Yes, all right, well I think you can proceed.

MR WYVILL: Thank you, your Honour. Your Honours, some housekeeping matters first. Would your Honours note three housekeeping matters? In the appeal book there is an error in relation to exhibit D5. Your Honours will find that at page 123 and following of the appeal book. Your Honours, this error reflects also an error in our agreed facts, which is common ground, and also an error in the judgment below.

There were two exhibits, D5 – two documents in exhibit D5. Both of them were in Indonesian unlike – which is contrary to what his Honour Justice Mildren said and we have said in our agreed facts. The one, unfortunately, which has been reproduced in the appeal book is the irrelevant one which relates to the waters between Papua New Guinea and Australia. Your Honours have been given the correct one, separately, which relates to the waters between Timor and Australia. Would your Honours regard that as the relevant part of exhibit D5.

FRENCH CJ: It is not in issue, is it, that your client’s vessel was above the Australian continental shelf and within the Indonesian Exclusive Economic Zone and outside the Australian fishing zone?

MR WYVILL: That is right, your Honour.

FRENCH CJ: That is really all we need to know, is it not?

MR WYVILL: That is right, your Honour. I did want to make sure, however, that your Honours were aware that we had made a mistake in our agreed facts which your Honours know are based upon his Honour Justice Mildren’s judgment. Would your Honours just note at page 237 of the appeal book that there is an error there…

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 Muslimin v The Queen

Details

AGLC: Muslimin v The Queen [2010] HCATrans 5
Case: [2010] HCATrans 5
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr. Muslimin against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained from Mr. Muslimin following his arrest.

The High Court was required to determine whether the evidence, specifically a confession and a subsequent re-enactment, was obtained in contravention of the *Crimes Act 1914* (Cth) and, if so, whether it should have been excluded under the *Evidence Act 1995* (Cth). The key legal issue was the proper application of s 23V of the *Crimes Act*, which governs the detention, questioning, and treatment of suspects, and the discretion of the trial judge to exclude improperly obtained evidence.

The Court held that the evidence was obtained in contravention of s 23V of the *Crimes Act* because Mr. Muslimin was not brought before a judicial officer as soon as reasonably practicable after his arrest. However, the Court found that the trial judge had correctly exercised their discretion to admit the evidence. The reasoning was that while the contravention was established, the evidence was reliable, and its admission did not create an unfair trial. The High Court affirmed the principles that the discretion to exclude evidence under s 137 of the *Evidence Act* is broad but should not be exercised lightly, particularly where the evidence is crucial to the prosecution's case and its admission does not occasion a miscarriage of justice.

The appeal was dismissed.

Orders