R v Sukarni & ors [2000] NTSC 13
Criminal law - evidence - record on interview.






FILE NOS 9917698, 9917699, 9917700, 9917701

#DATE 22:3:2000

DELIVERED: 22 March 2000

HEARING DATES: 2-9 March 2000



Criminal law - evidence - record on interview.

Order: application refused.



Applicant: S. Hall

Respondent: M. Ramage QC


Applicant: Office of the Director of Public Prosecutions (Cth)

Respondent: Northern Territory Legal Aid Commission

Judgment category classification: C

Judgment ID Number: ril0003

Number of pages: 33






R v Sukarni & ors [2000] NTSC 13

Nos 9917698, 9917699, 9917700, 9917701









(Delivered 22 March 2000)

[1].        Key Sulieman, Sukarni Bin Umar, Husayni Bin Madi and Ali Ranjane have each pleaded not guilty to charges preferred against them under s232A and s233(1)(a) of the Migration Act.

[2] It is alleged that the accused, who are Indonesian citizens, facilitated the bringing to Australia of 44 people knowing the people would become, upon entry to Australia, unlawful non-citizens. The offences are said to have occurred in the area of the Ashmore Reef.

[3] In presenting the case for the prosecution the Crown wishes to lead evidence relating to interviews conducted with each of the accused. Mr Ramage QC, who appeared on behalf of each of the accused, indicated that this evidence would be the subject of objection. The issues giving rise to the objection were identified by Mr Ramage as:

(a) whether the accused were lawfully taken into custody;

(b) whether they were unlawfully brought within the jurisdiction;

(c) the nature of the authority vested in the person who originally detained them, Mr Stephen Tester;

(d) whether the taking of records of interview from each of the accused was unlawful in the sense that they were taken in breach of the provisions of the Crimes Act; and

(e) whether the records of interview or parts thereof should be excluded in the exercise of my discretion.

The Detention of the Accused

[4] At the relevant time Mr Tester was the Master of the Aurelia IV, a vessel contracted to National Parks. He was the Warden for National Parks at Ashmore Reef. By virtue of an authorisation published in the Commonwealth of Australia Government Gazette GN32 on 12 August 1998 the person holding that position (position No B411) at Ashmore Reef was authorised to be an immigration officer appointed under the Migration Act.

[5] On 31 July 1999 the Aurelia IV was moored at a mooring block situated in the West Island lagoon, an area described by Mr Tester as being "on the western side of Ashmore Reef, so quite well contained inside the reef."

The vessel was ten metres from the sand "at the low, low water mark on a low tide". At the relevant time it was one kilometre from the sand atoll.

[6] At about 6am on 31 July 1999 Mr Tester was on the deck of the Aurelia IV. It was dark. He heard someone summons him and he then saw a vessel alongside with a number of people on it. He subsequently ascertained there were 48 people on the vessel, including the four accused.

[7] The vessel was described as a "sailing Indonesian fishing vessel". He said the vessel was in poor condition but was not in danger of collapsing or sinking. When he inspected it he found that the vessel had an engine and what he described as unusable sails. Those sails, along with other material collected from the vessel, were destroyed.

[8] The Indonesian vessel was in close proximity to the Aurelia IV and, at the request of Mr Tester and with the assistance of Mr Tester, the vessel was moved. Mr Tester said the accused each took part in that process.

[9] Mr Tester gave evidence that he spoke with the persons on the vessel. He said that he was not fluent in Indonesian but he was able to ask in that language whether the accused had passports or identity documents. They each said no. He then produced a detention notice. That notice was in the Indonesian language and he observed as it was read out by one of the accused to the others. Mr Tester confirmed that the handwriting on the document was his, save for some writing at the top of the document which was subsequently identified as having been made by Mr McLaughlin.

[10] The Indonesian vessel was over-crowded and to relieve that over-crowding some persons were moved on to another vessel which was present at Ashmore Reef. Mr Tester said there were complaints from the persons on the vessels that they were cramped and he therefore took all of the people off the vessels onto West Island for a period in order to permit them to exercise.

[11] Mr Tester reported to Coast Watch in Canberra and did so on a number of occasions. At about 10am on the morning of 31 July 1999 he informed officers of Coast Watch in Canberra of the precise number of people detained on the vessels.

[12] At about 8am on 2 August 1999 the HMAS Jervis Bay arrived at Ashmore Reef. Mr Tester gave the various detention notices (including that read to the four accused) to a person he identified as the commanding officer of the HMAS Jervis Bay. It seems that person may have been James William McLaughlin, an immigration officer who was aboard the vessel. The people from the Indonesian vessel were placed aboard the HMAS Jervis Bay.

[13] Mr Tester said that the non-crew members of the vessel expressed a firm desire to enter Australia. He did not ask the four accused, who he identified as being the crew, whether they wished to enter Australia. His enquiries of the four accused identified Mr Sulieman as the captain of the Indonesian vessel.

[14] Mr Tester confirmed that once the people on board the Indonesian vessel had been detained by him he had no intention of releasing them. This included the four accused. He identified his role as being to detain such people but not to interview them.

[15] Mr McLaughlin gave evidence that he was an immigration officer. On 31 July 1999 he was alerted to the fact of the arrival of the Indonesian vessel at Ashmore Reef. He attended a meeting in Darwin that was also attended by representatives of the Customs Department, the Australian Federal Police and the Australian Navy. This meeting led to him becoming part of the contingent that sailed to Ashmore Reef aboard the HMAS Jervis Bay.

[16] Mr McLaughlin said that upon the arrival of the vessel at the Ashmore Reef the people from the Indonesian vessel were transferred to the HMAS Jervis Bay for processing. Mr Tester provided him with detention notices issued under s189(2) of the Migration Act. One of those was in the Indonesian language and Mr McLaughlin confirmed that the handwriting at the top of the document was his. Mr McLaughlin provided to the Court an English language version of that notice which became Exhibit P4. A suitably qualified interpreter, Mr Leafe, confirmed that document to be an accurate translation.

[17] On board the HMAS Jervis Bay the people detained were provided with food and beverages. Mr McLaughlin then took a Nominal Roll. This recorded information gathered from the persons detained and included the personal particulars of each person from the vessel and whether they had any identification documents.

[18] Mr McLaughlin explained the exercise that he undertook as being to determine whether each individual met the requirements for immigration clearance under the Migration Act. He said that the HMAS Jervis Bay was "not a platform for going into any specific investigation or anything like that in relation to these people, apart from obtaining Nominal Roll details". It was through those processes that his fellow officer, Mr Rhys-Jones, determined that the people were unlawful non-citizens. During the journey from Ashmore Reef to Darwin the persons from the Indonesian vessel were also processed by officers from customs and quarantine services.

[19] Mr McLaughlin said that at his request another detention notice was read to the four accused by Commander Dudley who was the commanding officer of the HMAS Jervis Bay and spoke the Indonesian language. That document became Exhibit P7. He said that Commander Dudley also assisted with the creation of the Nominal Roll.

[20] Mr McLaughlin explained that the second detention notice was issued because he had been informed that the four accused and others had stepped on to part of the Ashmore Islands.

[21] Under cross-examination Mr McLaughlin denied that he thought that the original detention notice provided to the four accused by Mr Tester was in any way defective. He conceded that when the second notice was given the four accused were on the HMAS Jervis Bay and were not in the migration zone. However he confirmed that he believed they had previously been within the migration zone. Mr Hall, on behalf of the Crown, did not seek to rely upon the second detention notice.

[22] Commander Dudley confirmed that he is a qualified Indonesian linguist and that he assisted in translating a detention notice for the Immigration and Multicultural Affairs personnel. He received the document in English and translated it into Indonesian which he recorded in his handwriting. He then read out the document. Firstly an English sentence was read and then his interpretation. After each sentence was read he asked in Indonesian whether it was understood and the accused acknowledged that they understood it. In cross-examination the witness conceded that he had difficulty in translating some words and that the accused may have had difficulty in understanding some of the words he used.

[23] Commander Dudley said that he also took part in assisting with questions in relation to the names of the crew members and identifying the villages from which they had come. He indicated that he did not have time to take part in any records of interview. He said that he would not be competent to take part in such an exercise. His primary responsibility was with the operation of the vessel. He confirmed that there were portable tape recorders on the vessel. These were used to record specific parts of the journey for naval purposes.

[24] The HMAS Jervis Bay returned to Darwin arriving late on the night of 2 August 1999. Of the 48 people who had been on the Indonesian vessel, 44 were then flown to Port Hedland in Western Australia. The four accused who had been identified as the crew were transferred into the custody of the Australian Federal Police.

[25] Mr McLaughlin said that on the journey back to Darwin from Ashmore Reef he provided a direction in relation to each of the accused persons providing for their continued detention in immigration detention. These notices were directed to the watchhouse officer at Berrimah and the superintendent of the juvenile detention centre. The notices were prepared at 2130 hours but Mr McLaughlin was not able to say precisely when they were provided to officers of the Australian Federal Police. None of the AFP officers specifically recalls receiving the notices. All agree the accused were transferred into the custody of AFP officers at the conclusion of the journey.

[26] Federal Agents Curtis and Briggs were the AFP officers who attended at the Ashmore Reef on the HMAS Jervis Bay. They were directed to provide security on board whilst the HMAS Jervis Bay was collecting suspected unlawful non-citizens. Commander Dudley had requested that security because his officers were not appropriately trained for that purpose and there were no arms on the vessel. The AFP officers took with them a video camera. The video camera (and possibly a still camera) was in fact used by Agent Briggs for the purpose of obtaining evidence in relation to a possible prosecution in this matter. As Agent Briggs explained it, the video camera was there "in case the necessity arose that video footage may have to be taken of any evidential material that may be uncovered on our arrival." The video record in fact taken showed the Indonesian vessel, its passengers and close up views of the interior of the vessel, including its engine. The video of the passengers was taken to record their condition at the time and for the purposes of identification.

[27] Agent Curtis agreed that whilst he was not intending to carry out any investigations, such investigations were in fact carried out. He also agreed that the AFP had the benefit of the information obtained during the course of the taking of the Nominal Roll. Items seized from the accused were later transferred into the custody of the AFP officers.

[28] The AFP officers took no part in the questioning of any persons on the HMAS Jervis Bay. They said that the only questioning of which they were aware took place during the course of immigration processing. They were not part of that process although they were nearby. They directed people where to sit and where to go but they were not part of any of the conversations when immigration officers spoke with individuals. They were aware that a Nominal Roll was created.

[29] Upon their arrival in Darwin the four accused were taken into custody by Agents Curtis and Briggs and they were assisted by Agent Warton who was waiting for the vessel. The accused were transported to the AFP Headquarters where they each took part in a record of interview.

[30] When the HMAS Jervis Bay returned Federal Agent Ney met the vessel. He was the senior officer in Darwin at that time. He saw the accused disembark. He then returned to Darwin and later to the headquarters of the AFP. He was confident that the vessel docked at East Arm Wharf at 11.40pm. He said he was at the AFP office for about half an hour and went home at about 1am. He had to fly out of Darwin at 6.30am the following morning to attend an interview in Canberra.

[31] There was differing evidence as to the time the HMAS Jervis Bay arrived at the East Arm Wharf. Commander Dudley said that the vessel "arrived alongside" the berth at 11pm. Agents Warton, Ney and Briggs said the vessel "docked" at 11.40pm. The differences are probably explained by the differing terminology. In any event I accept that the four accused did not disembark onto the wharf until 11.40pm at which time they were handed into the custody of the AFP officers. They then travelled to AFP Headquarters in Darwin and I find they arrived there at midnight.

The Records of Interview

[32] Interviews were conducted with each of the accused at AFP Headquarters. Two Federal Agents conducted each interview with the assistance of the interpreter, Mr John Leafe. Whilst the interviews were being conducted the other accused were kept in a conference room at the premises under the guard of a third AFP officer.

[33] The accused Key Sulieman was the first person interviewed. That process commenced at about 12.51am on Tuesday 3 August 1999 and finished at 1.51am. The interview with Sukarni Bin Umar followed and lasted until about 3.20am. The accused Husayni Bin Madi was then interviewed from 3.37am to 4.19am. Finally the accused Ali Ranjane was interviewed from 4.40am to 5.16am. All of the accused were then conveyed to the Berrimah Watchhouse where they were charged, processed and remanded in custody. This was completed by 6.55am.

[34] Prior to the undertaking of the records of interview, Agent Curtis said the individual accused were each provided with a caution but that process was not recorded. They were also advised of their rights under the Crimes Act. There was no evidence to suggest these steps were not undertaken. No submission was made that the officers failed to comply with their obligations or that any of the accused did not understand or fully appreciate his rights. None of the accused was called to give evidence.

[35] Each of the AFP officers said that he believed that there were insufficient personnel available to conduct more than one interview at a time. Agent Curtis advised that it was "wise practice" to have two officers present in an interview situation, even though the whole process was being recorded on videotape. He agreed it would have been possible to conduct the interviews with only one officer present but thought there was no point to that suggestion because they did not have two interpreters. He did not make any enquiries as to the availability of other officers or as to the availability of other interpreters. He assumed appropriate enquiries in that regard had been conducted.

[36] Agent Curtis was asked whether he felt any need to obtain an extension of the investigation period under the provisions of the Crimes Act and he said that he did not. He went on to say:

"I considered that we only had the one interpreter and whilst we were interviewing and we were using the interpreter during the record of interview, that that time would have been termed as down time for the other persons awaiting to be interviewed as they weren't in the presence of an interpreter".

[37] Federal Agent Ney was asked why he did not assist in the interviewing process and he responded by advising that there was no second interpreter to set up a second interview. In addition, he said, the AFP did not have sufficient staff in Darwin to enable a second interview to be conducted. He gave particulars of where each member of staff was on that occasion. He agreed that there were two members of staff who could have been called in to assist but were not. One was not called in because he was involved in a domestic dispute, which arose out of the number of hours in which he had already been engaged in operational commitments. The second officer had visitors from interstate. Agent Ney did not make any approach to the Northern Territory Police Service for assistance. He said this was because there had been a longstanding policy of that Service that they would not undertake Commonwealth investigations. However he agreed that Northern Territory Police Officers had in the past assisted with matters such as the transport of prisoners.

[38] In relation to the provision of an interpreter Agent Ney said that he endeavoured to contact the Telephone Interpreter Service on Sunday 31 July 1999 but, having been left on hold for 40 minutes, he gave up. He did not try again on that day or on any other occasion. He did not try to obtain an additional interpreter from any other agency or source.

[39] The interpreter John Graham Leafe gave evidence of having appropriate qualifications to enable him to interpret for the accused. He attended at each of the four interviews and performed the duties of an interpreter. He satisfied himself that each of the accused understood his interpretation.

[40] In cross-examination Mr Leafe was taken through the record of interview conducted with the accused Key Sulieman. He agreed that various differing interpretations were open in relation to some of the passages interpreted by him. Some passages he corrected. He said that he was acting not as a translator but rather as an interpreter and that involved communicating what a person had said rather than a literal "dictionary to dictionary" translation. He relied upon his experience as an interpreter over a period of 20 years and his local knowledge.

The Ashmore Islands

[41] The first issue to be addressed is the status of the location at which the four accused were detained by Mr Tester. The detention notice issued by him was issued pursuant to s 189(2) of the Migration Act. That section provides as follows:

"If an officer reasonably suspects that a person in Australia but outside the migration zone:

(a) is seeking to enter the migration zone; and

(b) would, if in the migration zone, be an unlawful non-citizen; the officer must detain the person."

[42] The detention of the accused occurred early in the morning of Sunday 31 July 1999. The Indonesian vessel with the accused aboard was then in a position adjacent to the Aurelia IV which was, itself, located on the western side of Ashmore Reef. The vessel was one kilometre from the sand atoll of West Island. At low tide the vessel was just ten metres from the low water mark of that island.

[43] The Crown submitted, correctly in my view, that the individual islands of the Ashmore Islands are part of the migration zone of Australia for the purposes of the Migration Act and that their adjacent waters are part of Australia.

[44] The Ashmore and Cartier Islands were accepted as a Territory under the authority of the Commonwealth of Australia by operation of the Ashmore and Cartier Islands Acceptance Act 1933. The islands are described as "the Ashmore Islands and known as Middle, East and West Islands and also the island named Cartier Island."[1]

[45] By virtue of s 7(1) and s 7(3) of the Migration Act the Territory of the Ashmore and Cartier Islands is deemed to be part of Australia for the purposes of the Act. As is demonstrated by the wording in s189(2) of the Migration Act there is a distinction to be drawn between "in Australia" and the "migration zone" for the purposes of that Act. The expression "in Australia" includes a wider geographic concept than the expression "migration zone". The migration zone is defined in s 5 of the Act as follows:

"migration zone means the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes:

(a) land that is part of a State or Territory at mean low water; and

(b) sea within the limits of both a State or Territory and a port; and

(c) piers, or similar structures, any part of which is connected to such land or to ground under such sea;

but does not include sea within the limits of a State or Territory but not in a port."

[46] The area in which Mr Tester detained the accused does not fall within that definition. The detention occurred in the waters adjacent to West Island.

[47] These waters are, however, part of Australia for the purposes of the Migration Act. Section 15B(2)(b) of the Acts Interpretation Act (Cth) provides that, except so far as a contrary intention appears, any reference in an Act to any external Territory shall be read as including a reference to the coastal sea of such Territory. The `coastal sea' is then defined to include "the territorial sea adjacent to the Territory".

[48] The outer limit of the territorial sea of Australia has been set at twelve nautical miles measured from a baseline[2], which, for present purposes, is the low water line as marked on large-scale charts recognised by Australia[3]. It follows that the Indonesian vessel was, at the relevant time, within the territorial sea of Australia. It was in Australia.

[49] At the relevant time Mr Tester declared in the notice[4] read to the accused that he had a reasonable suspicion that each of the accused was seeking to enter the migration zone and that if they did enter they would be unlawful non-citizens. He therefore took them into what has been described as immigration detention under the provisions of s 189(2) of the Act. Assuming the presence of a reasonable suspicion on the part of Mr Tester that was, in my opinion, the appropriate procedure to follow.

Mr Tester

[50] In addition to the status of the area Mr Ramage raised two further issues to be addressed, both concerned Mr Tester. The first was whether Mr Tester was properly appointed as an officer for the purpose of the Migration Act. The second was whether Mr Tester in fact had a reasonable suspicion of the elements necessary to invoke the power of detention contained in s 189(2) of the Migration Act.

[51] As to the first matter, an officer is defined to include "a person" authorised by the Minister by notice published in the gazette to be an officer for the purposes of the Act. Although Mr Tester was not named in the notice in the gazette upon which the Crown relied, it was established that he was the occupant of position number B411 and that he was performing duties as an employee of Parks Australia (which was also known as Environment Australia) at Ashmore Reef. In my view that is a sufficient description to identify him as the person authorised by the Minister to be an officer for the purposes of the Migration Act.

[52] In relation to the issue of the reasonable belief of Mr Tester, Mr Ramage submitted that Mr Tester made no inquiry of any of the accused as to whether they were seeking to enter the migration zone. He submitted that it could not be inferred from their mere presence at the Ashmore Reef that they were seeking to enter the migration zone. The submission was supported by reference to the presence of other Indonesian fishing vessels in the area in relation to which it was not suggested that the crews wished to enter the migration zone. They were present at that location to fish.

[53] Objectively viewed there was a basis for Mr Tester to hold a reasonable suspicion that the four accused were seeking to enter the migration zone. They had arrived at Ashmore Reef with 44 passengers, all of whom had the apparent intention of entering the migration zone. The crew members demonstrated no intention to abandon the passengers at that remote location. As a consequence it may be expected that the accused would themselves enter the migration zone or be detained in the attempt to do so and be taken to the Australian mainland for processing. Whilst it may be that the individual accused did not express any desire to enter the migration zone, such a consequence would follow from the exercise they were undertaking. When they found the Aurelia IV at the Ashmore Reef they did not seek to offload their passengers and depart. They presented themselves to Mr Tester along with the passengers.

[54] On the basis of the information available to Mr Tester there was a basis for a reasonable suspicion that the accused were seeking to enter the migration zone at the time that he took them into immigration detention. His evidence was that he held such a suspicion. He was never challenged as to the basis of his belief nor as to its reasonableness. It was not suggested to him that he held no such suspicion.

[55] There can be no dispute that if they did enter the migration zone the accused would each be an unlawful non-citizen. They had no passports or identity papers. There was, at least, a basis for a reasonable suspicion that they would be unlawful non-citizens.

[56] In all of the circumstances I hold that the detention of each of the accused persons by Mr Tester was a lawful and valid exercise of the power under s 189(2) of the Migration Act.

[57] Once the accused and the passengers were lawfully detained the immigration authorities had all the powers necessary to ensure they were properly processed. Those powers included taking them to appropriate facilities for that purpose.

The Investigation Period

[58] Section 23C of the Crimes Act permits the detention of a person who has been lawfully arrested for a Commonwealth offence to be detained for the purpose of investigating whether the person committed the offence or another offence. There is created an investigation period commencing with the arrest and extending for a reasonable period. This section provides a time limit beyond which the detention should not continue unless extended by order of a judicial authority. Section 23C(7) identifies the periods of time which are not to be included in calculating the length of the investigation period. The investigation period, for present purposes, should not extend beyond four hours after the arrest (s 23C(4)(b)) unless the period is extended under s 23D.

[59] It was the submission on behalf of the Crown that the accused were not in the custody of the AFP officers whilst they were on the HMAS Jervis Bay, but rather, during that time they were in immigration detention. The presence of the AFP officers was simply to provide security as requested by Commander Dudley.

[60] Mr Ramage submitted that the functions of the AFP officers went beyond the mere provision of security. They were also present in an investigatory capacity. I accept that to be so. The officers took with them a video camera and a still camera. The intention was that this would enable them to record evidence in relation to a possible prosecution. The video camera was in fact used to record various matters which, in appropriate circumstances, may yet be used as evidence in support of a prosecution.

[61] However it is clear that the AFP officers did not take the accused or the passengers into their custody during that journey. They did not question the accused. Although they were present in the same spacious room that contained the accused and all other passengers, they limited their role to maintaining security and directing individuals to various parts of the room for various purposes. Neither the AFP officers nor any other person called to give evidence suggested their involvement went beyond what I have just described.

[62] I find that, during the course of the journey from the Ashmore Reef to Darwin, the four accused were in immigration detention and were not under arrest. Further I hold that they were not under arrest in the sense contemplated by s 23B(2) of the Crimes Act. They were not in the company of the AFP officers or any other "investigating official" for the purpose of being questioned. It is true they were in the same large room as the AFP officers and that they were not free to leave. However they were there for immigration purposes. They were under immigration detention. The Immigration Officers were exercising a power under a law of the Commonwealth to detain these persons (see s 23B(2)(e) of the Crimes Act).

[63] It was suggested that the AFP officers could have carried out interviews on the return journey. The fact is that they did not. In any event it was clearly impractical for them to have done so. They had other functions to perform. They did not have appropriate equipment. They did not have access to an appropriate interpreter. Commander Dudley was the only person present who spoke Indonesian and he gave evidence that he was not qualified to interpret and, in any event, did not have the time to do so because of his obligations to the vessel.

[64] Further, even if the four accused were under arrest for the purposes of s 23C of the Crimes Act, the journey from the Ashmore Reef to Darwin would fall within s 23C(7)(a) and not be counted as part of the investigation period. During that journey the accused were being conveyed from the place of arrest to the nearest premises at which the investigating official had access to facilities to comply with Part 1C of the Act. In Pollard v The Queen (1992) 176 CLR 177 Brennan, Dawson and Gaudron JJ observed (at 191) that "if there is not something more technically advanced than a hand held tape recorder, the place is not one at which facilities are available to conduct an interview". That was the circumstance which prevailed on HMAS Jervis Bay on the journey from the Ashmore Reef to Darwin.

[65] The evidence was that the four accused were transferred into the custody of the AFP officers when the vessel arrived in Darwin. I accept that to be so. They were then transferred from the vessel to the AFP Headquarters. Whatever time the vessel arrived at Darwin, and however long it took to disembark, there appears to be no serious challenge to the evidence of Agent Briggs that the party arrived at the headquarters at midnight.

[66] Whilst disembarking and during their journey from HMAS Jervis Bay to the AFP Headquarters the accused fell within the scope of s 23C(7) of the Crimes Act. They were being conveyed to premises at which the investigating officials had access to facilities which complied with Part 1C of the Act. I find that the investigation period commenced with the arrival of the four accused at the AFP Headquarters at midnight.

[67] Interviews were then conducted which took place over the next five or six hours. Clearly the four hour period provided for in s 23C(4) was exceeded in relation to two of the accused. No application was made to a magistrate for an extension of time pursuant to s 23D of the Crimes Act. The reason for this failure was that the officers did not think such an application was necessary.

[68] It was their view that because they were short staffed and had access to only one interpreter the time spent waiting by those yet to be interviewed was "down time". The waiting accused were being delayed during that time by the unavailability of the interpreter.

[69] The attitude of the AFP officers to their obligations under the Crimes Act was, to use a neutral expression, relaxed. The officers directly involved in the conduct of the records of interview simply accepted that there was a shortage of staff and that only one interpreter was available. None of those officers made any effort to obtain the assistance of additional staff and neither did they make any enquiry as to the availability of a further interpreter. Indeed it would appear that no question was put to Mr Leafe as to whether he was aware of anyone who may be able to assist. These officers had left it to Federal Agent Ney to make the necessary arrangements and assumed that appropriate enquiries had been made.

[70] Federal Agent Ney gave evidence as to the number of staff available to him on this occasion and he provided explanations in relation to each as to why they were not called on duty to assist. Whilst the reasons provided in respect of some members of staff may be regarded as justifying that position there was, in my view, a clear capacity to have sufficient staff available to conduct the interviews if Agent Ney thought that was necessary.

[71] Assistance could have been sought from the Northern Territory Police Service to provide for the security of the accused whilst interviews took place. Interviews may have been conducted by one AFP officer rather than two. It may be prudent and it may be sensible to have two officers present during an interview but circumstances may prevent that. The staff member who had "visitors for the weekend" could have been called on duty. Agent Ney himself could have assisted. In that regard I note that Agent Ney stayed at the premises until 1am in any event. There was, in my opinion, a lack of vigour in the approach adopted.

[72] Similarly, in relation to the availability of appropriate interpreters, there was an unacceptable lack of effort in the pursuit of an additional interpreter. Whilst some effort was made to obtain an additional interpreter on the Sunday, it seems no effort was made on the Monday. No approach was made to alternative interpreting services. It would seem no assistance was sought from the available interpreter, Mr John Leafe, to ascertain the identity of others who may be able to assist. After a preliminary effort to obtain an interpreter from the Telephone Interpreter Service no further effort was made.

[73] Whilst I am of the view that the efforts to obtain extra staff and an additional interpreter were less than satisfactory, I do not regard this as being entirely the fault of the interrogating officers. From their point of view others were attending to the arrangements. They assumed that, at the time they commenced their interviews in the early morning of a Monday holiday, those staff that were present were all that was available and there was no other interpreter available at that time. They proceeded on the basis of that understanding. However it appears they did not make any effort to clarify the position with Agent Ney who was then present at AFP Headquarters.

[74] I do not regard those circumstances as creating what has been called down time. The burden of establishing the application of any part of s 23C(7) rests with the prosecution. The periods sought to be excluded from the calculation of the investigation period under that section resulted from the failure of the AFP officers to provide appropriate staff to perform their functions and to obtain the services of another interpreter. The obligation to provide an interpreter rests with the investigating official (s 23N of the Crimes Act). That official cannot point to his or her own failure to act promptly or appropriately as a basis for effectively extending the investigation period. I do not accept that the reasons put forward on behalf of the Crown provide justification for the exclusion from the investigation period of the claimed down times. It follows from the above that the investigation period expired at 4am.

[75] In my opinion the conduct of the AFP officers in detaining and interviewing the four accused was justified and reasonable having regard to all of the circumstances. However, I also find that in relation to Husayni Bin Madi and Ali Ranjane the investigation period went beyond that provided for in s 23C(4) of the Crimes Act. I am therefore invited by Mr Ramage to exclude those records of interview in the exercise of my discretion.

[76] The principles applicable to such an exercise have been discussed by the High Court in Pollard v The Queen (supra). That case dealt with the provisions of the Crimes Act (Vict). The following passages appear in the joint judgment of Brennan, Dawson and Gaudron JJ:

"The exercise of the discretion to exclude evidence which has been improperly or illegally obtained involves a balancing of competing public policy considerations and is not so much concerned with the individual accused as with "whether the illegal or improper conduct complained of in a particular case is of sufficient seriousness or frequency of occurrence as to warrant sacrificing the community's desire to see the guilty convicted in order to express disapproval of, and to discourage, the use of unacceptable methods in achieving that end." (at 196).

And, further:

"In a case where it is established that a confession or admission by an accused was made voluntarily but the evidence warrants further consideration of whether it ought to be admitted, it will often be a convenient course for a trial judge to ask first whether it would be unfair to the accused to use the confession or admission against him before considering, if the evidence warrants it, whether it should be excluded on the ground that it was illegally or improperly obtained. If the first question is answered in the affirmative, it will be unnecessary to proceed to the second question." (at 197).

[77] In R v Tang, Dang and Quach (1998) 3 VR 508 the Court of Appeal in Victoria observed (at p520) that:

"Exclusion on the ground of public policy of evidence obtained in the course of non-compliance with a statute will be the exception rather than the rule ... The provisions are no doubt intended to protect individual rights but the authorities make it plain that non-compliance does not necessarily mean that individual rights prevail over the legitimate demands of the public interest."

[78] In the present case, as in the case of R v Tang, Dang and Quach (supra), it is very easy to reproach the federal agents concerned for not complying with the requirements of Part 1C of the Crimes Act. Whilst the efforts of the federal agents left a lot to be desired it cannot be said that they acted deliberately or recklessly in failing to comply with the requirements of Part 1C. The interrogating officers had a basis for the belief that appropriate enquiries had been made and that the situation that confronted them when they commenced to interrogate was the best that could be achieved. The failure seems to have been with the administrative arrangements that were left to others in Darwin. It seems to have arisen from a lack of effort to obtain additional staff and an additional interpreter rather than any deliberate or reckless failure to comply with the provisions of the Act.

[79] I do not accept that the interrogating officers acted in defiance of the requirements of Part 1C. I accept that Agent Curtis held the view that the records of interview were completed within time because of what he regarded as "down time" arising from the unavailability of an additional interpreter and the need to await the availability of Mr Leafe before proceeding with the next record of interview. The conduct of the officers was not reckless and was not in deliberate disregard of the law.

[80] It is clear that the legislature in creating this statutory power of detention intended to provide constraints upon the exercise of the power and, in this case, the officers have acted inconsistently with those constraints. It was a situation in which it would not have been difficult for the agents to comply with the requirements of the law. Further enquiry could have been made and, in the event that it proved to be impractical to obtain further assistance and/or an additional interpreter, then an application could have been made to a magistrate for an extension of the investigation period.

[81] I note that in the circumstances of these matters the release of the accused was not an available option, as they would in any event remain in immigration detention at the conclusion of the records of interview.

[82] The offences with which the accused are charged are serious. They each face a charge under s 232A of the Migration Act, which carries a penalty of 20 years imprisonment, and s 233(1)(a) of that Act, which carries a penalty of 10 years imprisonment. In addition, it seems to me, each of the records of interview has probative force. They each contain admissions regarding the journey to Australia, and in particular the Ashmore Reef, with the passengers. Husayni Bin Madi agreed that he did "bring illegals from Indonesia to Australia". Ali Ranjane said that he assisted in bringing the people to Australia and that they were not allowed to come to Australia "because they don't have a visa". Of course it will be a matter for a jury to determine whether the information contained in the records of interview is to be accepted and if so what weight should be attached to it. However for my purposes the records of interview would seem to have probative force.

[83] The fact that the conduct of the Agents was not reckless or in deliberate disregard of the law together with the seriousness of the offences and the probative force of the records of interview are all matters which do not favour exclusion of the evidence. The ease with which the officers might have complied with the law, and the intention of the legislature to constrain the exercise of this additional power by police, are matters that favour rejection of the evidence.

[84] In all of the circumstances it seems to me that the records of interview ought be admitted into evidence. They were voluntary and apparently reliable. I do not regard the circumstances of the taking of those records of interview as involving any unfairness to the individual accused. There was no causal link between the illegal detention and the provision of material by the accused that would make it unfair to admit the evidence[5]. There was, on the part of the federal agents, no overt defiance of the will of the legislature or calculated disregard of the requirements of the legislation and the reception of the evidence "does not demean the court as a tribunal whose concern is in upholding the law."[6]

The Conduct of the Interviews

[85] There was a further challenge to the admissibility of the record of interview conducted by Federal Agents Warton and Curtis with Mr Key Sulieman. Mr Ramage cross-examined the interpreter, Mr Leafe, extensively regarding that interview. In the course of his submissions Mr Ramage provided me with a schedule of "corrections/amendments/alternatives" arising from that exercise.

[86] Mr Leafe was ready to concede that certain expressions may be interpreted differently than occurred in the interview process. For example a question using the expression "did facilitate" may be interpreted as be "involved in" or be "part of" an undertaking. Similarly he interpreted the word "illegal" as "forbidden".

[87] Whilst different words or expressions may be given different meanings in the course of interpreting that is a matter which is able to be explored with the interpreter in the course of a trial. It may not be unfair to an accused person to admit such a record of interview when that process is available. In this case the alternative suggestions can be introduced into evidence through Mr Leafe at the trial. It was not suggested that any identified prejudice flowed from the choice of words made by Mr Leafe. It will be a matter for a jury to determine what was meant by the accused and what weight should be attached to the material contained in the record of interview.

[88] Although there were some instances where the interpreter had to seek clarification of matters, there is nothing in the record of interview that suggests that Mr Sulieman was unable to understand the questions being put to him or to provide meaningful responses. The alternative interpretations, if accepted, do not result in an interview that has changed its character or is, as a result, so unreliable that it ought be kept from the jury.

[89] A further complaint was that the interpreter translated the words "Ashmore Reef" as "Palau Pasir" rather than simply referring to the English expression "Ashmore Reef". Mr Leafe said he adopted that approach based upon his local knowledge that the names each related to the same location. In my view nothing turns on this. It is clear from the balance of the record of interview that the understanding of Mr Leafe is correct. Mr Key Sulieman identified the area where he was detained as being the location to which he sailed, Palau Pasir in his language. There was no dispute in the evidence that that location was in the waters at the Ashmore Reef. Indeed the case proceeded upon an acceptance of the assertion by the Crown that the events occurred at that location.

[90] Similar observations apply to the submission that the description of the islands as East, Middle and West was translated as Number 1 island, Number 2 island and Number 3 island.

[91] In relation to this record of interview it was submitted that Mr Key Sulieman was subjected to cross-examination and repetition of questions. It was submitted that this was unacceptable behaviour on the part of the interrogator. It was acknowledged that there was no suggestion of any physical or other threat to the accused and there was no submission that the will of the accused was overborne. Rather, the concern rested upon repetition of questions and what was described as cross-examination by the interrogating officer.

[92] Mr Ramage identified the matters complained of by reference to the transcript of the record of interview (see transcript p458). It is true that there is, in these passages, some repetition of the substance of questions. However when seen in context the questions are seeking clarification of earlier obtained information. The initial question complained of was:

Q. "Okay, did you bring illegal migrants to Australia or not?

A. No."

[93] Given the circumstances in which the accused was found on the vessel at Ashmore Reef in the company of the other accused and the 44 passengers (a matter not in dispute for present purposes) this was an answer that invited further explanation. He was asked what he was told to do with the passengers on the vessel once they arrived at Ashmore Reef, and he replied by referring to being arrested "because it is forbidden". That explanation was then explored. On each occasion the questions in relation to which complaint is made proceeded on the basis of a need for clarification.

[94] Similar observations apply to the suggestion that the accused was cross-examined. Particular exception was taken to a question by Federal Agent Briggs of Mr Key Sulieman where he asked: "Are you telling me the truth about this?". The answer of Mr Key Sulieman was: "yes". The interrogator then moved on to other questions.

[95] The questioning could not be characterised as excessive. The video tape demonstrates that the style of questioning was not aggressive and was not of a kind or tone that would act adversely to the accused. This is not a case where the questioning carried scornful overtones of disbelief.

[96] Complaints of a similar kind were directed to the interviews conducted with each of the other accused. I was provided with schedules of the questions in relation to which complaint was made and I have given consideration to each question in each schedule.

[97] Again, in my view, the questioning could not be characterised as oppressive or excessive. The questions generally followed naturally from each other and all can fairly be described as clarifying the answers obtained from the individual accused.


[98] I am not prepared to exclude any of the records of interview on the basis of the matters raised. In so ruling I do not exclude an application for a consideration of some parts of the records of interview on other bases at a later time.


[1] The relevant proclamation is to be found in Commonwealth of Australia Gazette 28 of 1934.

[2] See Commonwealth of Australia Gazette S297, 13 November 1990.

[3] See Articles 3 and 5 of Part II of the United Nations Convention on the Law of the Sea which is Schedule 2 to the Maritime Legislation Amendment Act 20 of 1996.

[4] Exhibit P1 read with exhibit P4.

[5] R v Tang (supra at 517).

[6] Bunning v Cross (1978) 141 CLR 54 at 78.

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