Usman v The Queen
[2022] WASCA 46
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: USMAN -v- THE QUEEN [2022] WASCA 46
CORAM: BUSS P
VAUGHAN JA
HALL J
HEARD: 12 NOVEMBER 2021
DELIVERED : 26 APRIL 2022
FILE NO/S: CACR 132 of 2020
CACR 136 of 2020
CACR 137 of 2020
CACR 138 of 2020
CACR 139 of 2020
CACR 140 of 2020
BETWEEN: RUDI USMAN
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
For File No: CACR 132 of 2020
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STAUDE DCJ
File Number : IND 994 of 2010
For File No: CACR 136 of 2020
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: WISBEY DCJ
File Number : IND 736 of 2010
For File No: CACR 137 of 2020
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: SCOTT DCJ
File Number : IND 874 of 2011
For File No: CACR 138 of 2020
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GOETZE DCJ
File Number : IND 1253 of 2010
For File No: CACR 139 of 2020
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: WISBEY DCJ
File Number : IND 674 of 2010
For File No: CACR 140 of 2020
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GOETZE DCJ
File Number : IND 359 of 2010
Catchwords:
Criminal law - Appeal against conviction - Federal offence - Each appellant convicted in the District Court of an offence against s 232A of the Migration Act 1958 (Cth) - Each appellant sentenced to mandatory minimum penalty for an adult - Whether each appellant's conviction and sentencing involved a miscarriage of justice in that the District Court did not have jurisdiction to convict and sentence each appellant because each appellant was under the age of 18 years at the time of the alleged offending
Legislation:
Children's Court of Western Australia Act 1988 (WA), s 19
Criminal Procedure Act 2004 (WA), s 126(1)(a)
Migration Act 1958 (Cth), s 232A, s 233C
Result:
In respect of each appeal:
Appellant's application for an extension of time to appeal granted
Appellant's application for leave to adduce additional evidence granted
Crown's application for leave to adduce additional evidence granted
Leave to appeal granted
Appeal allowed
Judgment of conviction set aside
Judgment of acquittal entered
Category: B
Representation:
Counsel:
| Appellant | : | Mr P A Tierney |
| Respondent | : | Mr M D Howard SC & Mr A J C Mossop |
Solicitors:
| Appellant | : | Ken Cush & Associates |
| Respondent | : | Director of Public Prosecutions (Cth) |
Case(s) referred to in decision(s):
Abdul v The Queen [2020] WASCA 34
Jasmin v The Queen [2017] WASCA 122; (2017) 51 WAR 505
JUDGMENT OF THE COURT:
Each appellant in CACR 132 of 2020 (Rudi Usman), CACR 136 of 2020 (Hamzah Gogo), CACR 137 of 2020 (Maikel Husa), CACR 138 of 2020 (Vandi), CACR 139 of 2020 (Muhammad Maleng) and CACR 140 of 2020 (Usman Ari) has applied for an extension of time to appeal and for leave to appeal against conviction.
Each appellant was charged on indictment with one count of facilitating the entry into Australia of five or more people to whom s 42(1) of the Migration Act 1958 (Cth) (the Act) applied, reckless as to whether they had a lawful right to come to Australia, contrary to s 232A of the Act.
Between 2010 and 2012 each appellant was convicted of the charged offence and sentenced in the District Court of Western Australia.
When the offending occurred, the offence carried a mandatory minimum penalty of 5 years' imprisonment with a minimum non-parole period of 3 years unless it was established, on the balance of probabilities, that the offender was aged under 18 years when the offence was committed. See s 233C of the Act.
Further, if any of the appellants had been under the age of 18 years when the offence was committed, the District Court would not have had jurisdiction to hear and determine the charged offence. See s 19(1) of the Children's Court of Western Australia Act 1988 (WA).
In each prosecution, the Crown obtained and relied upon expert medical opinions to the effect that, based on wrist x-rays, each of the appellants was over the age of 18 years. At the time, that method of determining age was permitted under s 3ZQA of the Crimes Act 1914 (Cth) read with reg 6C(2) of the Crimes Regulations 1990 (Cth).
Each appellant was sentenced to the mandatory minimum penalty for an adult of 5 years' imprisonment with a minimum non‑parole period of 3 years.
However, since the appellants were convicted and sentenced, the determination of age based on wrist x-rays has been discredited. By the Crimes Amendment (X-ray) Regulation 2013 (Cth), the wrist x-ray method of determining age was repealed as a prescribed procedure for that purpose with effect from 26 July 2013.
The last date for each appellant to appeal against conviction occurred between 2010 and 2012. Each appellant's application for an extension of time is supported by a detailed and extensive affidavit of his lawyer, Mark Geoffrey Barrow. We are satisfied that each appellant's delay in filing his appeal notice has been explained adequately. We are also satisfied that each appeal has merit. In the circumstances, we would grant each appellant the required extension.
Each appellant and the Crown has filed an application for leave to adduce additional evidence. Each appellant's application is in respect of various documents listed in an attachment to another affidavit of Mr Barrow. The Crown's application in each appeal is in respect of an affidavit of Andrew David Scott affirmed 18 May 2021, an affidavit of Professor James Fox affirmed 12 May 2021 and an affidavit of Professor Timothy Charles Lindsey affirmed 13 May 2021. Each of the affidavits includes numerous annexures. Mr Scott's affidavit annexes a large number of affidavits sworn by others.
Each appellant relies upon one ground of appeal. The grounds are identical. They allege, in essence, that the primary judge's conviction and sentencing of the appellant occasioned a miscarriage of justice in that the District Court did not have jurisdiction to convict and sentence the appellant because the appellant was, or there is a reasonable doubt that he was, under the age of 18 years at the time of the alleged offending.
Each appellant's orders wanted are that an extension of time to appeal be granted; leave to appeal be granted; the appellant's application for leave to adduce additional evidence be granted; the appeal be allowed; the judgment of conviction be set aside; and a judgment of acquittal be entered in respect of the charged offence.
The Crown has conceded each of the appeals. In particular, the Crown has conceded that a miscarriage of justice was occasioned by each of the convictions; the judgments of conviction should be set aside; and judgments of acquittal should be entered. The Crown does not oppose each appellant's application for leave to adduce additional evidence in the appeal. Subject to the Crown's reservations as to the reliability of some of that evidence (none of which is of material significance for present purposes), the Crown does not challenge the evidence. Counsel for the Crown did not require for cross‑examination any of the deponents of any of the affidavits relied upon by the appellants. The Crown accepts that there was no reliable evidence when each appellant was convicted and sentenced that he was of or over the age of 18 years (appeal ts 12).
We are satisfied that the Crown's concessions are properly made.
The orders wanted by each of the appellants should be made. The Crown's application in each of the appeals for leave to adduce additional evidence should also be granted.
Our reasons are as follows.
Overview of relevant facts and circumstances after the appellants were convicted and sentenced and before their appeal notices were filed
In about 2012, after each of the appellants had been convicted and sentenced, the Department of Immigration and Citizenship (the Department), as it was then known, undertook 'age assessments' in respect of each appellant on the basis that each appellant's conviction and sentence may have been unsafe by reason of the wrist x-ray evidence.
In 2012, after that assessment was undertaken, the Commonwealth Attorney‑General released each of the appellants on licence.
Issues raised by the appellants in these appeals were similar to those considered by this court in Jasmin v The Queen[1] and Abdul v The Queen.[2]
[1] Jasmin v The Queen [2017] WASCA 122; (2017) 51 WAR 505.
[2] Abdul v The Queen [2020] WASCA 34.
In Jasmin and Abdul, the appellants had entered a plea of no jurisdiction on the basis of age. The Crown relied upon wrist x-ray evidence to prove that the appellants were of or over the age of 18 years. On appeal, this court held that a miscarriage of justice had occurred in consequence of the Crown's reliance upon and the primary judge's acceptance of the wrist x-ray evidence.
By contrast, in the present case, each appellant's age was not put in issue. All of the appellants, apart from Mr Vandi, were convicted on their pleas of guilty. Mr Vandi went to trial but his age was not an issue at the trial.
In the present case, the Crown concedes that, notwithstanding that the age of each appellant was not in dispute in the primary proceedings, the conviction of each appellant involved a miscarriage of justice.
The parties are agreed that, in the absence of the wrist x-ray evidence relied upon by the Crown in the primary proceedings:
(a)each appellant would not have been charged as an adult;
(b)consequently, the District Court would not have had jurisdiction to deal with each matter;
(c)notwithstanding the possible application of s 169 of the Criminal Procedure Act 2004 (WA), the only court with jurisdiction to deal with the matters would have been the Children's Court of Western Australia;
(d)the cogency of the remaining available evidence, as to the date of birth of each appellant, cannot support a finding that, at the material time, any of the appellants was of or over the age of 18 years; and
(e)the fact that each of the appellants, except Mr Vandi, was convicted on his plea of guilty and the fact that Mr Vandi was convicted after trial, and the fact that none of the appellants raised his age as an issue in the primary proceedings, does not avoid the conclusion that a miscarriage of justice has occurred.
In any event, the Crown concedes that the Crown's earlier reliance in the primary proceedings upon the wrist x‑ray evidence now gives rise to a serious doubt about the integrity of each plea of guilty and about the integrity of each decision not to put in issue the appellant's age.
The merits of each appeal
The Crown brought the prosecutions in the District Court of Western Australia. By s 39, s 39A, s 68(2) and s 68(5C) of the Judiciary Act 1903 (Cth) read with s 494 of the Act, at all material times the District Court was invested with federal jurisdiction in relation to offences against the Act.
By s 19(1) of the Children's Court of Western Australia Act 1988 (WA), the Children's Court of Western Australia has exclusive jurisdiction, subject to s 19(1a) of that Act, to hear and determine a charge of an offence alleged to have been committed by a person aged under 18 years. Section 19(1a) did not apply to any of the appellants or the charges. By s 19(2), notwithstanding that a person has attained the age of 18 years, the jurisdiction of the Children's Court extends, and the provisions of the Children's Court of Western Australia Act apply, to proceedings in respect of an offence committed, or allegedly committed, by the person before attaining the age of 18 years.
Section 126(1)(a) of the Criminal Procedure Act provides that if, under that Act, an accused may or must plead to a charge, the accused may plead that 'the court does not have jurisdiction to deal with the accused or the charge'.
In the present case, unlike in Jasmin, there was no hearing as to the jurisdiction of the District Court in relation to any of the appellants.
As this court observed in Abdul [50], it is at least arguable that, in order to establish a miscarriage of justice in the circumstances which have occurred, each appellant must, in this court, establish on the balance of probabilities that he was under the age of 18 years at the time of the offending.
However, as in Abdul [51], it is unnecessary finally to resolve that issue because, as we will explain, the additional evidence in these appeals satisfies us, on the balance of probabilities, that each appellant was under the age of 18 years at the time of the offending.
As to Rudi Usman:
(a)To be under the age of 18 years at the time of the offending, Rudi Usman would have to have born after 3 December 1991.
(b)An affidavit of Aat Kaswati affirmed on 25 January 2021 includes a statement to the effect that during a meeting between Rudi Usman and his then lawyer on 5 August 2010 Mr Usman indicated that his date of birth was 12 February 1996.
(c)An affidavit affirmed by Rudi Usman's uncle, Jamaludin Usman, on 23 October 2020 includes a statement by the uncle that, to his knowledge, Rudi Usman was born in October 1996.
(d)A report by Professor Timothy Cole dated 2 December 2020 concludes that, having regard to x-rays taken of Rudi Usman and to a relevant medical methodology, it is very likely that, at the material time, Mr Usman was under the age of 18 years.
As to Hamzah Gogo:
(a)To be under the age of 18 years at the time of the offending, Hamzah Gogo would have to have been born after 27 September 1991.
(b)An affidavit of Mr Gogo affirmed on 25 November 2020 includes statements to the effect that he was born on 17 March 1994.
(c)Affidavits of Mr Barrow affirmed on 23 September 2020 and 22 January 2021 annex a document called a 'Nominal Roll', being a record maintained by the Department, which records Mr Gogo's age as 16 years and a transcript of an interview conducted with Mr Gogo by the Department in 2009 during which Mr Gogo said he was born in March 1994.
(d)Mr Gogo's mother stated in a sworn but undated affidavit that Mr Gogo was born on 12 July 1993.
As to Maikel Husa:
(a)To be under the age of 18 years at the time of the offending, Maikel Husa would have to have been born after 31 December 1991.
(b)An affidavit of Mr Husa affirmed on 18 December 2020 includes statements to the effect that he was born on 1 January 1994.
(c)An affidavit of Mr Barrow affirmed on 24 September 2020 annexes a document called a 'Nominal Roll', being a record maintained by the Department, which records Mr Husa's date of birth as 1 January 1994 and transcripts of interviews conducted with Mr Husa by the Department and the Australian Federal police in 2010 during which Mr Husa said that he was born on 1 January 1994.
(d)Mr Husa's mother stated an affidavit sworn on 3 June 2012 that Mr Husa was born on 11 December 1993.
As to Vandi:
(a)To be under the age of 18 years at the time of the offending, Vandi would have to have been born after 12 September 1991.
(b)An affidavit of Mr Vandi affirmed on 14 December 2020 includes statements by Mr Vandi that in 2009 he told representatives of the Commonwealth government and members of the police that he was aged 17 years and was born on 17 March 1992.
(c)An affidavit of Mr Barrow affirmed on 23 September 2020 annexes a document called a 'Nominal Roll', being a record maintained by the Department, which records Mr Vandi's date of birth as 17 March 1992 and transcripts of interviews conducted with Mr Vandi by the Department and the Australian Federal police in 2009 during which Mr Vandi said that he was born on 17 March 1992.
(d)Mr Vandi's mother stated in a sworn but undated affidavit that Mr Vandi was born on 30 December 1993.
As to Muhammad Maleng:
(a)To be under the age of 18 years at the time of the offending, Muhammad Maleng would have to have been born after 27 September 1991.
(b)An affidavit of Mr Barrow affirmed on 25 September 2020 annexes a document called a 'Nominal Roll', being a record maintained by the Department, which records Mr Maleng's age as 14 years and a transcript of an interview conducted with Mr Maleng by the Department in 2009 during which Mr Maleng said that he was born in 1995.
(c)Mr Maleng's mother stated in a sworn but undated affidavit that Mr Maleng was born on 8 April 1994.
As to Usman Ari:
(a)To be under the age of 18 years at the time of the offending, Usman Ari would have to have been born after 12 September 1991.
(b)An affidavit of Mr Ari affirmed on 20 November 2020 includes statements to the effect that on various occasions in 2009 he told Commonwealth government officials and Australian Federal police officers that he was born in 1993 or was aged 16 years.
(c)An affidavit of Mr Barrow affirmed on 28 September 2020 annexes a document called a 'Nominal Roll', being a record maintained by the Department, which records Mr Ari's date of birth as 6 February 1993 and transcripts of interviews conducted with Mr Ari by the Department and the Australian Federal police in 2009 during which Mr Ari said that he was born in 1993 and was aged 16 years.
(d)Mr Ari's mother stated in an affidavit sworn on 3 June 2012 that Mr Ari was born on 2 February 1994.
We conclude having regard, in particular, to the probative force of the unchallenged affidavit evidence of Rudi Usman's uncle and the unchallenged affidavit evidence of the mother of each of the other appellants that, on the balance of probabilities, each appellant was under the age of 18 years at the time of the offending.
It follows that the District Court had no jurisdiction to deal with any of the appellants when a Judge of the District Court entered a judgment of conviction against each appellant and imposed sentence on him. Consequently, each appellant was sentenced on the basis that he was an adult and not by reference to the sentencing principles applicable to children. A substantial miscarriage of justice has occurred.
The reasons of this court in Jasmin [207] ‑ [212] and [248] ‑ [254] for setting aside the judgment of conviction in that case and substituting a judgment of acquittal apply in the present case in respect of each appellant. As in Jasmin, counsel for the Crown informed this court at the hearing of the appeals that the Crown would not seek to extradite and retry the appellants even if this court decided to order new trials (appeal ts 11).
Conclusion
The following orders should be made in respect of each appeal:
(a)The appellant's application for an extension of time to appeal is granted.
(b)The appellant's application for leave to adduce additional evidence is granted.
(c)The Crown's application for leave to adduce additional evidence is granted.
(d)Leave to appeal is granted.
(e)The appeal is allowed.
(f)The judgment of conviction is set aside.
(g)A judgment of acquittal is entered.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BS
Associate to the Honourable Justice Buss
26 APRIL 2022
0
2
0