Sharam Khamisi v The Queen
[2015] VSCA 355
•16 December 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0156
| SHARAM KHAMISI | Applicant |
| v | |
| THE QUEEN | Respondent |
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| 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) |
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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.
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| 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 journey to Australia as a refugee, the applicant had spent a number of years in Indonesia. The prosecution alleged that during his time in Indonesia the applicant met people involved in the ‘people smuggling’ trade.
After his arrival in Australia, and whilst the applicant was part of the refugee community in Sydney, the applicant’s brother, Bahram Khamisi (‘Bahram’), introduced him to Ali Khorram Heydarkhani (‘Heydarkhani’). Around June 2009, the applicant approached Heydarkhani with a proposition that they travel together to Jakarta. There were two reasons advanced for the trip. First, the applicant wanted to locate ‘Farid’ (another of his brothers). Secondly, it was suggested that he and Heydarkhani look for potential passengers wanting to travel from Indonesia to Australia, those passengers having no lawful right to do so. This second proposed activity was for the purpose of making money.
On 24 July 2009, the applicant and Heydarkhani flew to Jakarta and met Farid. They then rented a villa in a place near Jakarta, Cisarua, and travelled around nearby regions scouting for potential passengers to send to Australia on boats. The applicant — known throughout this period as ‘Khalid’ — schooled Heydarkhani as to what to tell potential passengers about the boats they would travel on and about their journey to Australia. It was alleged that they (and two others) scouted for passengers, collected money, rented villas for the passengers, organised transport and paid bribes to local police. As part of these activities, the applicant and Heydarkhani quoted passengers a fee of US$6,000 to organise their travel to Australia. Once passengers had paid the money, they would arrange for the passengers to stay in villas in Cisarua owned by one of the applicant’s friends.
Whilst canvassing for prospective passengers in Cisarua, the applicant and Heydarkhani met a family group of twelve staying there in a villa. Through this family group the applicant and Heydarkhani met Lamis Alli Baighi[3] (‘Alli Baighi’), whose brother, Mohammad, was one of the group of twelve, and was to be one of the passengers. The applicant negotiated a lower than normal price to convey Alli Baighi and his family to Australia — US$4000 per passenger — on the basis that Alli Baighi would work as a people smuggling agent to help recruit further passengers.
[3]Heydarkhani gave evidence that Alli Baighi had been introduced to him as ‘Mokhtar’, and it was only later that he found out that his name was Lamis Alli Baighi.
A few weeks later, Alli Baighi gave the applicant money for his family members’ passage. The applicant promised that Alli Baighi’s family would be sent to Australia. Alli Baighi told the applicant and Heydarkhani that he had a friend in Bali named ‘Laith’.[4] After Alli Baighi paid the money for his family, the family group travelled to Bali to stay with Laith, and so as to await transport on a boat to Australia.
[4]Laith’s real name was Abdulla Ghazi. He was an Iranian national.
From then on, the applicant, Heydarkhani, Alli Baighi and Laith, worked together as a team to recruit passengers and organise their passage to Australia as illegal non-citizens. Their activities included recruiting passengers, collecting money from them, renting accommodation for them and transporting them.
During the period the applicant was working with Heydarkhani, Alli Baighi and Laith, on 13 October 2009 his brother Bahram arrived in Bali from Sydney. At that stage, some fifty to sixty passengers had been recruited, and plans were on foot to have them board a boat to commence their journey from Indonesia to Australia.
Bahram departed Bali on 24 October 2009, and took all of the money that had been collected from the fifty or sixty passengers, each of whom had paid up to US$6,000 for their passage. At about the same time, an attempt to get a group of passengers to a boat that would take them from Maumere in Indonesia to Australia had to be aborted as a result of Heydarkhani being arrested en-route to Maumere with some of the passengers.
Upon his release from custody, Heydarkhani returned to Cisarua. At that stage the applicant could not be found. It was later discovered that he had returned to Sydney.
Heydarkhani, Alli Baighi and Laith then moved into a villa in Cisarua and continued to plan the journey to Australia for passengers who had been recruited with the applicant. Ultimately, a group of passengers boarded a boat which left Indonesia on or about 9 November 2009. The boat — which was designated ‘Toorak’ and became known as SIEV[5] 71 — was intercepted in Australian waters on 14 November 2009. Through his activities, the applicant had facilitated the passage to Australia of five or more of the passengers on this boat.
[5]Suspected Illegal Entry Vessel.
In circumstances that we will return to, between 3 June and 9 July 2010, the applicant met with Federal Agent (‘FA’) Christopher Waters, and provided him with information about people smuggling. Then, more than two years later, on 16 November 2012, Australian Federal Police (‘AFP’) arrested and interviewed the applicant. In the interview, the applicant admitted that he had a nickname ‘Khalid’, and he admitted to travelling to Indonesia in 2009 with Heydarkhani. He claimed, however, that he travelled with Heydarkhani only so that Heydarkhani could organise for his brother’s passage to Australia on a boat. The applicant asserted that Heydarkhani and Laith were people smugglers, but that he was not (and never had been).
In order to prove the charge of aggravated people smuggling against the applicant at trial, the prosecution was required to prove that there were five passengers whose passage to Australia was intentionally facilitated by the applicant. In order to do so, the prosecution relied on the evidence of seven witnesses — Faramaz Emami, Mahmaz Hatami, Rasul Mirhamza, Sayed Reda, Alieh Soltani, Reza Yakhchi and Ali Yadiloui — who gave evidence of Khalid’s involvement in their passage to Australia. Three of the witnesses — Faramaz Emami, Sayed Reda and Alieh Soltani — identified ‘Khalid’ from photoboards. Emami gave evidence that he, his wife and their child travelled together to Australia; and Soltani and Reda also gave evidence that they and their child travelled to Australia together. The prosecution contended that the evidence of these three witnesses alone established that the journey of six people had been facilitated by the applicant. Soltani and Reda also gave evidence that the applicant — who was on bail — visited them at their home during the trial and asked them for the money which they owed him in return for his help in Indonesia. (These witnesses gave evidence that they had been given free passage by the applicant and Heydarkhani because another people smuggler had stolen their money and left them stranded in Indonesia.)
The prosecution also relied on the evidence of Heydarkhani. He gave detailed evidence concerning the applicant’s activities in Indonesia, and described how he and the applicant had worked together recruiting and collecting money from at least eleven of the passengers who eventually travelled to Australia on SIEV 71.
A disputed admission
The ground of appeal concerns an admission made by the applicant to FA Waters on 3 June 2010 in the following circumstances.
In May 2010, the applicant contacted Australian Federal Police in Sydney through an intermediary, ‘M’, and volunteered to provide information concerning people smuggling.
During a meeting with FA Waters at about 12.15pm on Thursday, 3 June 2010 (at which M was present), the applicant told FA Waters that:
· he travelled to Jakarta in July 2009 with ‘Ali Koran’;
· in Jakarta he met smugglers Leith[6] and ‘Mokhtar’;[7]
[6]In the record of the meeting in the AFP database — ‘Annex A’ to the statement of FA Waters dated 6 January 2014 — the spelling adopted is ‘Leith’, although elsewhere in the prosecution’s documents the spelling ‘Laith’ is used.
[7]See n 3 above.
· Leith and Mokhtar said that if he helped them they would transport the applicant’s brother from Indonesia to Australia at no cost;
· he worked with Leith and Mokhtar for about three months; and
· he knew all the people and staging points, and how the people smugglers work with Indonesian police.
At trial, the prosecution sought to lead as an admission the applicant’s statement to FA Waters on 3 June 2010 that he had worked with Laith and Mokhtar — people smugglers — for about three months.
Pursuant to s 90 of the Evidence Act 2008 (‘the Act’), counsel for the applicant objected to the evidence on the basis that, in the circumstances in which it was made, it would be unfair to use the evidence of the admission.
More than three years after his contact with the applicant in June and July 2009, on 6 January 2014, FA Waters made a statement about his contact with the applicant. Among other things, the statement recorded that:
· He and FA Daniel Edwards met with M and the applicant in person on 3 June 2010. A summary of the information provided by the applicant was recorded in the AFP database (‘Annex A’ to the statement).[8]
[8]See [21] above.
· On 4 June he received a telephone call from the applicant. A summary of the information provided by the applicant was recorded in the AFP database (‘Annex B’ to the statement).
· He, together with FA Mark Gilpin and FA Benjamin Wilson, met the applicant in person on 9 July 2010. A summary of the information provided by the applicant was recorded in the AFP database (‘Annex C’ to the statement).
· On 5 November 2010 a decision was made that the applicant was unsuitable to be registered as a ‘Human Source’.
FA Waters gave evidence on the voir dire. He said that the meeting on 3 June 2010 took about an hour and 45 minutes. The meeting with the applicant took so long because ‘it was difficult to fully grasp everything he was saying’, and he ‘was pretty agitated too at the time’. FA Waters said that ‘we went over things many times to try and determine exactly what he was saying’, and ‘[m]any things were rehashed many, many times to try and get clarity of what was said’. ‘Annex A’ to his statement — where the admission is recorded — is the ‘sole record’ of his conversation with the applicant. It was made from ‘messy’ notes on ‘a scrap of paper, or a number of papers’, which he no longer has. Importantly, FA Waters gave evidence as follows:
He gave fairly elaborate detail about all the activities that were happening, where there were staging points, where they moved to. He had all this information. It was very hard to grasp the whole ambit of it. It was just trying to get an understanding of what he was trying to say.
And:
It was a very long conversation and it took — we were trying to clarify firstly getting the ear attuned to [the applicant] speaking at the time and clarified words, a lot of the names were phonetics as well, so it’s trying to bring clarification to exactly what he was saying, and even getting the sequence into things was difficult. It’s the order as I’ve recorded it [in Annex A].
The judge’s ruling on the disputed admission
The prosecution conceded that the disputed admission would have given rise to the need for the applicant to be treated as a ‘protected suspect’,[9] thus, among other things,[10] enlivening the need to caution the applicant[11] and to tape record his questioning.[12] Given that the conversation had not been recorded, and it was not possible to be sure at which point in the conversation the disputed admission occurred, the prosecution conceded that in the interests of fairness the trial judge should treat it as having occurred at the start of the conversation. The practical effect of this concession was to exclude all other incriminatory parts of the conversation.
[9]See Crimes Act 1914 (Cth), s 23B(2).
[10]See generally, Crimes Act 1914 (Cth), Part IC, Division 3.
[11]See Crimes Act 1914 (Cth), s 23F.
[12]See Crimes Act 1914 (Cth), s 23V.
In ruling on the objection to the disputed admission, the judge said:
Turning now to the second ground upon which the application for exclusion of this evidence is made, that is pursuant to s 90 of the Evidence Act, that is a discretion to exclude admissions where a court may refuse to admit such evidence if (a) it is adduced by the prosecution and (b) in the circumstances in which the admission was made it would be unfair to use this evidence.
As I have said, the unchallenged evidence is that [the applicant] volunteered to have a conversation with Mr Waters of the kind that ultimately took place. It is not sought, as I have said, by the prosecution to lead any evidence of conversation which took place after[the applicant’s] statement to Mr Waters that he was working for the people smugglers for three months. I heard no evidence from [the applicant] on the application as to any conversations he had with ‘M’ prior to speaking to Mr Waters, nor do I have any evidence as to why he chose to have this conversation. Certainly, again, as I have already said, Mr Waters seems to have regarded this as no more than an intelligence gathering operation and the material was duly archived away.
The failure to administer a caution in these circumstances does not have the taint of unfairness that it might were there a more direct intention by Mr Waters to question [the applicant] with a view to charging him.
It is probably unfortunate for [the applicant] that he chose to do as he did and it may be an action he now bitterly regrets. One can perhaps have sympathy for that situation. There is nothing worse than being hoisted on one’s own petard and indeed that seems to be the flavour of the submissions made to me and, again, I make the comment that they were extremely competent and thorough submissions but ultimately I see no unfairness attaching to this conversation such that it should not be used against [the applicant] in the terms proposed by the prosecution.
I further make the observation that in my view the efforts taken by Mr Waters firstly to exclude ‘M’ from any participation in this conversation and to establish as much as he could precisely what it was [the applicant] was saying to him such that I am satisfied this material has the required reliability to allow it to go before a jury. The arguments as to reliability are certainly ones which can be posed to a jury but are not such, in my view, that they render this evidence inadmissible and I do rule that this evidence should be led.
No error has been shown
In this Court, counsel for the applicant submitted that, pursuant to s 90 of the Act, the evidence ought to have been excluded because the critical meeting between FA Waters and the applicant took place in the absence of an interpreter. An unknown portion of the meeting was partially interpreted by a lay person, M. This impinges on the reliability of what the applicant intended to convey, and on FA Water’s understanding of what the applicant actually said. Further, FA Waters’ note-taking, and the manner of its transcription, further impinged on the accuracy and reliability of the record of the conversation. That situation is exacerbated by the fact that the applicant was neither given the opportunity to review and sign FA Waters’ notes, nor was asked about the conversation during the record of interview. Ultimately — citing House,[13] KJM,[14] Singh[15] and Marijancevic[16] — counsel for the applicant submitted that the refusal to exclude the evidence of the admission allegedly made to FA Waters was not reasonably open to the judge in the sound exercise of that discretion, and that the judge’s decision is unreasonable or plainly unjust in all the circumstances.
[13]House v The Queen (1936) 55 CLR 499, 505.
[14]KJM v The Queen (No 2) (2011) 33 VR 11, 12–13 [9]–[14].
[15]Singh v The Queen (2011) 33 VR 1, 6–7 [26].
[16]DPP v Marijancevic (2011) 33 VR 440, 444–5 [13]–[16].
We reject the applicant’s submissions.
Section 90 of the Act provides:
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 an accused to use the evidence.
There is no dispute that the impugned evidence constituted an admission,[17] which the judge could have refused to admit if, having regard to the circumstances in which it was made, it would be unfair to admit it. The onus of demonstrating that it would be unfair to admit the evidence rested with the applicant.[18]
[17]See the definition of ‘admission’ in the Dictionary to the Act.
[18]Em v The Queen (2007) 232 CLR 67, 91 [63], Gleeson CJ and Heydon J (‘Em’).
It has been observed that the ‘language in s 90 is so general that it would not be possible in any particular case to mark out the full extent of its meaning’.[19] Some guidance was, however, provided by Gummow and Hayne JJ in Em:[20]
[T]he central issue is whether the evidence of admissions should not have been admitted because, having regard to the circumstances in which they were made, it would be unfair to the defendant to use the evidence. That question requires consideration of whether there was identified some aspect of the circumstances in which the admissions were made that revealed why the use of the evidence, at the trial of the person who made the admissions, ‘would be unfair’. That is, the focus of s 90 falls upon the fairness of using the evidence at trial, not directly upon characterising the circumstances in which the admissions were made, including the means by which the admissions were elicited, as ‘fair’ or ‘unfair’.
[19]Ibid 89 [56].
[20]Ibid 103 [107].
Acknowledging that what is (or is not) ‘unfair’ may in some circumstances be a somewhat elusive — if not a subjective or idiosyncratic — concept, we are of the view that the judge was correct to conclude that there was nothing in the circumstances in which the admission was made which rendered it unfair to the applicant to use the evidence. We hold that view for several reasons.
First, the admission was volunteered, unprompted and unsolicited. At the time that he made the admission, the applicant was not suspected of any wrongdoing. He proffered the information willingly, and, it might be thought, in order to secure an advantage for himself.
Secondly, it was open to the judge to find that the circumstances in which the admission was made did not affect its reliability. Although the applicant had some difficulty with English, FA Waters gave evidence that he went over important matters several times, until he was satisfied that he understood what the applicant meant to convey. The judge was satisfied — as she was capable of being — that ‘the efforts taken’ by FA Waters ‘to establish as much as he could precisely what it was [the applicant] was saying to him’ gave the admission ‘the required reliability’.
Thirdly, although FA Waters’ contemporaneous notes were ‘messy’, they were transcribed in a legible form into the AFP database within a day or so. In those circumstances, they are likely to reflect with accuracy the admission made by the applicant.
Thus, we see nothing in the circumstances in which the admission was made making it unfair to admit it at the applicant’s trial. It follows that we cannot conclude that the trial judge’s failure to refuse to admit the evidence was attended by error, or was otherwise unreasonable or plainly unjust.
Conclusion
The application for leave to appeal against conviction must be refused.
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