Sharam Khamisi v The Queen - [2015] VSCA 355

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0156

SHARAM KHAMISI	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 December 2015
DATE OF JUDGMENT:	16 December 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 355
JUDGMENT APPEALED FROM:	DPP v Khamisi (Unreported, County Court of Victoria, Judge Gaynor, 25 November 2014)

---

CRIMINAL LAW — Appeal – Conviction – Aggravated people smuggling – Oral admission to police that applicant worked with people smugglers – Section 90 of the Evidence Act 2008 – Whether unfair to use the evidence – No error in trial judge failing to exclude the evidence – Application for leave to appeal refused.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr H Kirimof	Garde-Wilson Lawyers
For the Crown	Ms F E Holmes	Commonwealth Director of Public Prosecutions

THE COURT:

Introduction

Sharam Khamisi, the applicant, aged 43 years, was born in Iran on 4 August 1972. He came to this country as a refugee from Iran in 2006.

On 25 November 2014, a jury in the County Court found him guilty on one charge of aggravated people smuggling. The indictment alleged that the applicant ‘… in Indonesia between 24 July 2009 and 14 November 2009 facilitated the bringing or coming to Australia of a group of five or more people to each of whom s 42(1) of the Migration Act 1958 applied and … did so reckless as to whether the said people had, or have, a lawful right to come to Australia, contrary to s 232A of the Migration Act 1958 (Cth)’.[1]
[1]At the relevant time, s 232A of the Migration Act 1958 (Cth) provided:
232A Organising bringing groups of non-citizens into Australia
(1) A person who:
(a)organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of 5 or more people to whom subsection 42(1) applies; and
(b)does so reckless as to whether the people had, or have, a lawful right to come to Australia;
is guilty of an offence punishable, on conviction, by imprisonment for 20 years or 2,000 penalty units, or both.

The applicant now seeks leave to appeal against his conviction[2] on the following ground:

The Learned trial judge erred in not exercising her discretion to exclude the evidence of the alleged admission to Federal Agent Waters on the ground that it would be unfair to use the evidence against the Applicant, given the circumstances in which the admission was allegedly made (s 90 Evidence Act). Such error having given rise to a substantial miscarriage of justice.

[2]The applicant does not seek leave to appeal against sentence. On 20 February 2015 he was sentenced to be imprisoned for seven years, upon which a non-parole period of four years and nine months was fixed.

For the reasons that follow, we would refuse leave to appeal.

Factual background

It is necessary to provide a brief summary of the case against the applicant.

On his…

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.

Keep reading for free

Create a free CaseChat account to read Sharam Khamisi v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] VSCA 355
Decision Date: 16 December 2015

CaseChat Overview and Summary

The matter of Sharam Khamisi versus The Queen was heard by the High Court of Australia. The appellant, Khamisi, was convicted of aggravated people smuggling, a crime which involves the facilitation of the illegal entry of non-citizens into Australia. Khamisi appealed against his conviction, arguing that the trial judge erred in admitting evidence of his oral admission to police that he worked with people smugglers. Specifically, Khamisi contended that the admission was unfairly obtained and its admission was prejudicial.

The legal issue before the court was whether the trial judge made an error in not excluding the evidence of the appellant’s oral admission under section 90 of the Evidence Act 2008, which allows the court to exclude evidence if its admission would be unfair. The court had to consider whether the circumstances under which the admission was obtained rendered it unfair to admit, and if the prejudicial effect of the evidence outweighed its probative value.

The High Court held that there was no error in the trial judge's decision to admit the evidence. The court found that the evidence was properly obtained and that its probative value substantially outweighed any prejudicial effect. Consequently, the application for special leave to appeal was dismissed, and the conviction and sentence were upheld. The court emphasised that the evidence played a crucial role in establishing the appellant's involvement in the people smuggling activities.

Orders