Supreme Court of Western Australia - Court of Appeal
Last Updated: 1 November 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION : AHMADI -v- THE QUEEN  WASCA 237
CORAM : McLURE P
HEARD : 17 JUNE 2011
DELIVERED : 1 NOVEMBER 2011
FILE NO/S : CACR 170 of 2010
BETWEEN : HADI AHMADI
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STAVRIANOU DCJ
File No : IND 12 of 2010
Criminal law - Appeal against conviction - People smuggling - Common law defence of necessity - Whether trial judge erred in law by failing to allow the defence of necessity to be considered by the jury
Criminal law - Right of defence counsel to address the jury in closing - Prosecutor interrupted defence counsel's closing address on numerous occasions - Whether a miscarriage of justice occurred
Criminal Code (Cth), s 2.2
Criminal Code Amendment (Application) Act 2000 (Cth)
Criminal Procedure Act 2004 (WA), s 145
Migration Act 1958 (Cth), s 42(1), s 228A, s 232A, s 233(1)
Migration Legislation Amendment (Application of Criminal Code) Act 2001 (Cth)
Leave to appeal refused
Appellant : Mr J A Davies
Respondent : No appearance
Appellant : Jonathan A Davies
Respondent : Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Bayley v Police  SASC 411; (2007) 99 SASR 413
Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs  HCA 36; (2004) 219 CLR 486
Braysich v The Queen  HCA 14; (2011) 276 ALR 451
Limbo v Little (1989) 98 FLR 421
Mark v Henshaw (1998) 85 FCR 555
Perka v The Queen (1994) 14 CCC (3d) 385
R v Davidson  VicRp 85;  VR 667
R v Latimer  1 SCR 3
R v Loughnan  VicRp 43;  VR 443
R v Morgentaler (No 5)  1 SCR 616
R v Rogers (1996) 86 A Crim R 542
Southwark London Borough Council v Williams  Ch 734
Taiapa v The Queen  HCA 53; (2009) 240 CLR 95
United States v Bailey  USSC 11; 444 US 394 (1979)
1 McLURE P: I agree with Buss JA.
2 BUSS JA: By an indictment dated 4 February 2010, the appellant was charged with 21 counts. There were four principal counts, namely, counts 1, 14, 18 and 20. The principal counts alleged offences contrary to s 232A of the Migration Act 1958 (Cth) (the Act) and the other counts alleged offences contrary to s 233(1)(a) of the Act.
3 Count 1 related to a vessel, referred to at trial as the 'Flinders', which arrived at Christmas Island on 25 March 2001 with 198 passengers including two crew. Count 14 related to a vessel, referred to at trial as the 'Nullawarre', which arrived at Christmas Island on 22 April 2001 with 201 passengers including two crew. Count 18 related to a vessel, referred to at trial as the 'Yambuk', which arrived at Christmas Island on 4 August 2001 with 148 passengers including the crew. Count 20 related to a vessel, referred to at trial as the 'Conara', which arrived at Christmas Island on 22 August 2001 with 364 passengers including five crew.
4 The other counts in the indictment were expressed to be further and in the alternative to the principal counts.
5 On 11 August 2010, after a trial in the District Court before Stavrianou DCJ and a jury, the appellant was convicted on two of the principal counts, namely counts 1 and 20.
6 Count 1, being the principal count relating to the 'Flinders', alleged that between about 6 January 2001 and about 25 March 2001, at Indonesia and elsewhere, the appellant did facilitate the bringing or coming to Australia of a group of five or more people to whom s 42(1) of the Act applied, and did so reckless as to whether the people had a lawful right to come to Australia, contrary to s 232A of the Act.
7 Count 20, being the principal count relating to the 'Conara', alleged that between about 22 April 2001 and about 22 August 2001, at Indonesia and elsewhere, the appellant did facilitate the bringing or coming to Australia of a group of five or more people to whom s 42(1) of the Act applied, and did so reckless as to whether the people had a lawful right to come to Australia, contrary to s 232A of the Act.
8 The appellant has applied to this court for leave to appeal against conviction.Overview of the Crown's case at trial
9 The Crown's case at trial alleged, in summary, that the appellant was an assistant to an Indonesian-based 'people smuggler', Sayed Omeid. The appellant looked after the passengers in Indonesia before their departure from Indonesia to Australia. He was responsible for their hotel accommodation and this included, in some cases, handling money and assisting in the transport of the passengers to the vessels.Overview of the appellant's case at trial
10 The appellant's case at trial was, in summary, as follows.
11 The appellant was born on 22 June 1975 in Iraq. His father was a prominent dissident Shiite cleric, who was killed in 1992 during the Shiite uprising against the regime of Sadam Hussein.
12 The appellant and his family went to Iran when he was aged 10 years. They lived as refugees in that country until late 2000 when the appellant left Iran and sought refugee status in Indonesia.
13 In Indonesia, the appellant became associated with Omeid and others as a representative of a group of refugees who were hiding in Indonesia and who wanted to travel to Australia.
14 On the appellant's case, he acted out of a sense of 'religious humanitarian duty' in assisting the passengers the subject of the principal counts in the indictment.
15 According to the appellant, he did not incur any criminal liability for the acts proven against him in relation to the principal counts. It was argued on his behalf that he was entitled to rely on, and the Crown could not exclude beyond reasonable doubt, the defence of 'necessity' at common law.
16 Defence counsel submitted to the trial judge that the defence of necessity should be available to the appellant if, from an objective standpoint, he might reasonably be said to be acting in order to avoid a threat of death or serious injury to the passengers. Also, it was submitted to his Honour that there was evidence which, if accepted by the jury, left open the reasonable possibility that the appellant actually believed that:
(a) there was a real threat of death or serious injury, or illness, to him and the passengers; and
(b) there was no reasonable alternative open to him other than to assist the passengers in the manner he did as they endeavoured to reach 'safety' in Australia.
17 The trial judge ruled that the defence of necessity should not be left to the jury.Section 232A and other relevant provisions of the Act
18 At the material time, s 232A of the Act provided:
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.
19 It was not in dispute at the trial that the group of five or more people referred to in counts 1 and 20 were people to whom s 42(1) of the Act applied.
20 Section 232A is in subdivision A of div 12 of pt 2 of the Act.
21 At the material time, s 228A of the Act provided that subdivision A of div 12 of pt 2 applies 'in and outside Australia'.
22 Section 4A of the Act, which provides that ch 2 of the Criminal Code (Cth) (the Code) (except pt 2.5) applies to all offences against the Act, does not apply in the present case. Section 4A was introduced by the Migration Legislation Amendment (Application of Criminal Code) Act 2001 (Cth). It did not commence until 19 September 2001.The Code
23 Chapter 2 of the Code is headed, 'General principles of criminal responsibility'.
24 Chapter 2 comprises s 2.1- s 16.4.
25 Section 2.2, as originally enacted, provided:
(1) This Chapter applies to all offences against this Code.
(2) On and after the day occurring 5 years after the day on which the Criminal Code Act 1995 receives the Royal Assent, this Chapter applies to all other offences.
(3) Section 11.6 applies to all offences.
26 The Code received Royal Assent on 15 March 1995. Chapter 2 of the Code would have commenced on 15 March 2000, but for the enactment of the Criminal Code Amendment (Application) Act 2000 (Cth).
27 By the Criminal Code Amendment (Application) Act, s 2.2(2) of the Code, as originally enacted, was repealed, with effect from 29 February 2000, and replaced with the following subsection:
Subject to section 2.3, this Chapter applies on and after 15 December 2001 to all other offences.
28 Accordingly, when the appellant committed the offences the subject of counts 1 and 20, ch 2 of the Code (in particular, s 10.3 which relates to sudden or extraordinary emergency) did not apply to the offence created by s 232A of the Act.At the material time, could the common law defence of necessity be invoked in answer to a charge under s 232A of the Act?
29 I will assume, for present purposes, that at the material time the common law defence of necessity could be invoked in answer to a charge under s 232A of the Act.The proposed grounds of appeal
30 The appellant relies on two proposed grounds of appeal.
31 Ground 1 alleges that the trial judge erred in law by failing to allow the defence of necessity to be considered by the jury and, in consequence, there was a substantial miscarriage of justice.
32 Ground 2 alleges that there was a substantial miscarriage of justice in that the appellant was in effect deprived of his entitlement to have defence counsel address the jury in closing, pursuant to s 145(2) of Criminal Procedure Act 2004 (WA), by reason of the prosecutor frequently interrupting defence counsel's closing address.Proposed ground 1: the trial judge's reasons
33 The trial judge gave, relevantly, these reasons for deciding that the defence of necessity should not be left to the jury:
As to the issue of whether there was an imminent peril, it was the evidence of the accused that none of the people he was dealing with ever had any trouble with the police. There is no evidence ... from the accused that he acted as he did because of imminent peril. As counsel for the Crown submitted, there is no basis upon which it could be said that he honestly and reasonably, albeit wrongly believed he had to commit the offence in order to take care of the situation.Proposed ground 1: the legal test for determining whether a particular defence should be left to the jury
There is no evidence that the accused was bound to protect the passengers. I do not consider that the evidence provides any evidentiary basis to leave the defence of necessity to the jury in the circumstances. The accused did not give evidence from which it could be concluded that any of what he did was done because he was impelled to do so by circumstances impacting on his will.
There is no evidence in the matter upon which a jury could fail to be satisfied beyond reasonable doubt that the Crown has excluded the possibility that the accused acted as he did only out of compulsion, in the sense that it is understood by the issue of necessity. Accordingly, I do not intend to allow the issue of necessity to be put before the jury (ts 2777).
34 If it is necessary for a trial judge to consider, at the close of the evidence in a criminal trial, whether a particular defence should be left to the jury, the relevant question, in a case where (as in the present case) the legal burden is on the Crown and the evidential burden is on the accused, will be: is there evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence had been negatived? See Braysich v The Queen  HCA 14; (2011) 276 ALR 451 ,  (French CJ, Crennan & Kiefel JJ).Proposed ground 1: the common law defence of necessity
35 In Stephen's, A Digest of the Criminal Law, (1877), ch III, art 32, the defence of necessity is stated in these terms:
An act which would otherwise be a crime may be excused if the person accused can shew that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided.
36 In R v Loughnan  VicRp 43;  VR 443, the Full Court of the Supreme Court of Victoria accepted that at common law there is a defence of necessity to a criminal charge. Young CJ and King J said that the defence involves three elements (448 - 449). First, the criminal act must have been done only in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others whom he or she was bound to protect. Secondly, the accused must honestly believe on reasonable grounds that he or she was placed in a situation of imminent peril. Thirdly, the acts done to avoid the peril must not be out of proportion to the peril to be avoided. See also R v Davidson  VicRp 85;  VR 667, 670 (Menhennitt J); Limbo v Little (1989) 98 FLR 421, 448 - 449 (Martin J, Kearney & Rice JJ agreeing).
37 In R v Rogers (1996) 86 A Crim R 542, Gleeson CJ (Clarke JA & Ireland J agreeing) referred to the considerations of public policy which have informed the limitations imposed on the availability of this defence:
The corollary of the notion that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law. Nor can the law encourage juries to exercise a power to dispense with compliance with the law where they consider disobedience to be reasonable, on the ground that the conduct of an accused person serves some value higher than that implicit in the law which is disobeyed.
This is why, historically, it has been regarded as important to seek to limit the scope of the defence by referring to requirements such as urgency and immediacy. However, I accept the appellant's submission that, consistently with the approach to self-defence taken by the High Court in Zecevic [Zecevic v Director of Public Prosecutions (Vic)  HCA 26; (1987) 162 CLR 645], it is now more appropriate to treat those 'requirements', not as technical legal conditions for the existence of necessity, but as factual considerations relevant, and often critically relevant, to the issues of an accused person's belief as to the position in which he or she is placed, and as to the reasonableness and proportionality of the response (546).
See also Mark v Henshaw (1998) 85 FCR 555, 559 (Gallop, O'Loughlin & Finn JJ).
38 Gleeson CJ emphasised that the relevant concept is of necessity, not expediency, or strong preference. His Honour explained:
If the prisoner, or the jury, were free to consider and reject possible alternatives on the basis of value judgments different from those made by the law itself, then the rationale of the defence, and the condition of its acceptability as part of a coherent legal system, would be undermined. To adopt the language of Dickson J in Perka [Perka (1984) 14 CCC (3d) 385], the accused must have been afforded no reasonable opportunity for an alternative course of action which did not involve a breach of the law. In United States v Bailey  USSC 11; 444 US 394 at 410 (1979) Rehnquist J, speaking for the majority in the Supreme Court of the United States, said:
'Clearly, in the context of a prison escape, the escapee is not entitled to claim a defence by duress or necessity unless and until he demonstrates that, given the imminence of the threat, (escape) was his only reasonable alternative.'
In that context the word 'demonstrate' is to be understood as a reference to an evidentiary, not a legal onus, as is made clear by the term 'showing' which is used in the paragraph immediately following that which has been quoted (547).
39 A little later in Rogers, Gleeson CJ noted that the concept of reasonableness, in formulations of the defence of necessity such as those of Dickson J in Perka v The Queen (1994) 14 CCC (3d) 385 and Rehnquist J in United States v Bailey  USSC 11; 444 US 394 (1979), introduces into the consideration of possible alternatives an appropriate concession to 'practical reality'. His Honour added that it is not, however, intended to provide 'scope for the making of choices or value-judgments of a kind which undermine the principle itself' (547). He then said that reasonableness is not designed to allow people to choose for themselves whether to obey the law (547). See also Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs  HCA 36; (2004) 219 CLR 486  (Gleeson CJ); Bayley v Police  SASC 411; (2007) 99 SASR 413  -  (Gray J, Sulan & White JJ agreeing); Taiapa v The Queen  HCA 53; (2009) 240 CLR 95  -  (French CJ, Heydon, Crennan, Kiefel & Bell JJ).
40 In Behrooz, Gleeson CJ referred to the observation of Edmund Davies LJ in Southwark London Borough Council v Williams  Ch 734, 745, made in the course of discussing the defence of necessity, that 'the law regards with the deepest suspicion any remedies of self-help, and permits those remedies to be resorted to only in very special circumstances' (497). In Perka, Dickson J stated that the defence must be restricted to those rare cases in which true 'involuntariness' is present. It was essential that the defence be 'strictly controlled and scrupulously limited' .
41 In R v Latimer  1 SCR 3, the Supreme Court of Canada explained the element of the defence of necessity relating to 'imminent peril', as follows:
In short, disaster must be imminent, or harm unavoidable and near. It is not enough that the peril is foreseeable or likely; it must be on the verge of transpiring and virtually certain to occur .
See also R v Morgentaler (No 5)  1 SCR 616, 678.Proposed ground 1: its merits
42 At trial, the Crown did not dispute that the passengers transported on the 'Flinders' and the 'Conara' would be in peril if they were returned from Indonesia to their countries of origin, notably, Iraq, Iran and Afghanistan. On the issue of the defence of necessity, the Crown focused on the appellant's state of mind.
43 The appellant gave sworn evidence in his own defence at trial. He denied that anything he had done was for the purpose of working with people smugglers. He explained his motivation for providing assistance to the people who became passengers on the vessels in question, relevantly, as follows:
(a) The appellant spoke about his background and the values he had learnt from his father. It was his duty, so the appellant said, based on his father's teachings, to look after anyone who needed him (ts 2193 - 2194).
(b) The appellant gave evidence-in-chief that he was 'obligated to [his] father to carry [his] good father's legacy and name' (ts 2228).
(c) Defence counsel asked the appellant why he had helped the passengers. His response was:
I think it was my obligation. If I didn't help them, who would have helped them? I always remembered that my father had told us that you have to help them. And it was my duty, my obligation. I - the refugees who would have come to Indonesia normally didn't know anyone [except] the smugglers. And the smugglers look at them just as money. Because I was in the same situation as they were, I would have understand [sic] totally how they feel (ts 2237).
(d) The appellant also said in evidence-in-chief that 'it was [his] duty to help them' (ts 2242 - 2243).
(e) The appellant told the prosecutor in cross-examination that he 'felt sorry' for the passengers and 'they needed help'; he was 'simply doing nice things to help them'; he felt it was his 'duty to help them'; and he was 'doing [his] duty, [his] obligation' (ts 2279 - 2280, 2280 - 2281, 2299 - 2300).
44 Further, the appellant gave this evidence at trial:
(a) The appellant said the detention centres in Indonesia were very poor. There were 'very big rats' and the food was 'unhealthy'. People were sick (ts 2219).
(b) The appellant was held in a detention centre at Jakarta for 'almost a week' (ts 2220 - 2221). When asked in examination-in-chief where he stayed upon release from the detention centre, the appellant said:
I was a person that you call it homeless, every day or night I was staying somewhere, it wasn't a specific place. Then the new refugees, new asylum seeker were arriving to Indonesia, when they were meeting me some of them they would have asked me to provide them with a very - with - with a cheap accommodation. It wasn't a very easy job, and suitable to do but I was feeling if I'm not helping them who is going to help them? When I was finding accommodation or a place for them to stay the one who were single I would have stayed with them. Sometimes I would have stayed with them a week or 10 days or one night (ts 2232).
(c) The appellant was asked in evidence-in-chief what he did in relation to the refugees. The following exchanges occurred:
What - so what did you do in relation to those refugees?---When I was staying with them, anybody was talking about their problems to me. Some of them, not only they were speaking about their own problems, they were speaking about others as well. Many times, because we didn't have any TV to watch - because of the expenses, we didn't have any TV and that was why we were amused by talking. Some people needed help, some people needed medication. I was looking at them, and some of the women who were there, they were there without their spouses, and I was looking at them like my sister, and the one who were older like my mother. If I didn't want to help them, who would have helped them? Most of the people who were in relation with them in - if they would have done anything for them, they wanted to get money off them. It was very difficult for them to find someone who would do anything for them for free. It was - any dollar was precious for them.
Can you just - can you tell us what you did in relation to the female unaccompanied refugees that you've spoken about?---Most of them were - were with children but they didn't have any men with them. They needed to take their child to the hospital, some of them needed specific sort of food which was different with [sic] the Indonesian food. Whatever they needed I would have felt obligated to do that. I would have tried to find the cheapest accommodation for them, the safest place possible for them to be away from police to be captured because most of them they were illegal in Indonesia. Some of - some of them really, really didn't have anything and they were forced to go to United Nation - not forced, they had to go to United Nation to ask for help. And they didn't know how to get to United Nation, I would have taken them to show them where the United Nation is.
When you say 'would have' does that mean you don't remember? Or are you saying that you did do this?---'I did', I'm sorry, it's my mistake, 'I did do this, I hid - I took them' (ts2233 - 2234).
(d) The appellant said that he wanted to keep 'some of the refugees' away from the Indonesian police. He gave this explanation:
Most of them were illegal and if they would have been arrested the best thing was done for them, it was that they would have been sent to the detention centre, it was a horrible place. It was ... not for the human, it wasn't. I even heard Indonesia deported some people ... from Indonesia to Iraq and Iran (ts 2234 - 2235).
(e) The appellant gave this evidence as to his understanding of why the refugees were in Indonesia and what the situation was in relation to their remaining in Indonesia:
So what was your understanding of the purpose of why the refugees were in Indonesia?---(Through interpreter) Because of the danger that it was there for them in their own home country they had to leave their homeland country and come to a safer place, which was Indonesia at that time for them to go - that was the easiest place that they could get there.
And - and what was the situation in relation to them remaining in Indonesia then?---They couldn't stay for long in Indonesia. United Nation wouldn't - didn't accept people easily. If they were accepted in Indonesia and they - if they would have - if they would have been arrested in Indonesia they would have been deported to their own country, or they should have stayed, they would have been sent to the Indonesian detention centre (ts 2241).
(f) The appellant gave evidence about his understanding of the human rights violations and dangers faced by the refugees in their countries of origin. He also gave evidence as to his belief that if the refugees were returned to their countries of origin they would be killed (ts 2257 - 2258).
(g) The appellant said that the refugees faced the following dangers in Indonesia:
Usually they were there illegally and the minimum consequence they should have been in a situation on humanitarian - like it's not a place for a human to live on [sic] those Indonesian detention centres. And minimum the consequence for them it was to go there (ts 2257 - 2258).
(h) The appellant added that another consequence for the refugees may be deportation to their countries of origin (ts 2257 - 2258, 2261 - 2262).
45 It is an offence under s 232A of the Act if a person:
(a) organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of five or more people to whom s 42(1) of the Act applies; and
(b) does so reckless as to whether the people had, or have, a lawful right to come to Australia.
46 Nothing in s 232A prohibits a person from providing food, accommodation, medical and other humanitarian assistance to refugees or asylum seekers if the assistance is not provided in connection with organising or facilitating the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of five or more people to whom s 42(1) applies.
47 It is an element of the defence of necessity at common law that when the criminal acts in question were done the accused honestly believed, on reasonable grounds, that he or she, or others whom he or she was bound to protect, were in a situation of 'imminent peril'. It is insufficient that the peril is merely foreseeable or likely. The peril must be 'on the verge of transpiring and virtually certain to occur': Latimer .
48 In the present case, there was no evidence at trial which, taken at its highest in favour of the appellant, could lead a reasonable jury, properly instructed, not to be satisfied that the Crown had proved beyond reasonable doubt that the passengers, whose bringing or coming to Australia was allegedly facilitated by the appellant, were not confronted with an 'imminent peril', as I have explained it.
49 There was evidence at trial that there was a foreseeable risk of the passengers being arrested by the Indonesian authorities and held in an Indonesian detention centre. Also, there was evidence that, if arrested, they faced the foreseeable risk of deportation to their countries of origin. However, there was no evidence that the appellant honestly believed, on reasonable grounds, that any of these circumstances (notably, deportation to their countries of origin) was 'on the verge of transpiring' or was 'virtually certain to occur', when the appellant committed the criminal acts in question.
50 In addition, I note, for completeness, that there is no doubt, on the evidence, that being arrested by the Indonesian authorities and sent to an Indonesian detention centre would not involve or constitute the infliction of 'irreparable evil' upon the passengers for the purposes of the defence of necessity.
51 The trial judge was correct in ruling that the defence of necessity should not be left to the jury.Proposed ground 2: closing addresses
52 Section 145 of the Criminal Procedure Act provides:
(1) When the parties have finished giving or adducing evidence in a trial, the prosecutor is entitled to give a closing address to the court about the whole case.Proposed ground 2: the prosecutor's interruptions
(2) Immediately after the prosecutor has given or declined to give a closing address, the accused is entitled to give a closing address to the court about the whole case.
(3) If in an accused's closing address any fact is asserted that is not supported by evidence in the trial, the court may permit the prosecutor to give an address to the court in reply to the assertion.
53 At the trial, the closing address of defence counsel commenced on 27 July 2010 at 11.27 am. It finished on 29 July 2010 at 3.22 pm.
54 Defence counsel's closing address was interrupted on numerous occasions, in the presence of the jury, by the prosecutor. I will not specifically mention all of them. Also, I will not refer to interruptions that the trial judge made, and was entitled to make, in the presence of the jury, which necessarily and properly involved hearing from the prosecutor in relation to the matters raised by his Honour. See, in this regard, the exchanges at ts 3226 - 3235.
55 On 27 July 2010 at 2.16 pm, defence counsel said, in the presence of the jury, that he wanted the jury 'to consider looking at this little set of images, this little movie. It's entitled an awareness test' (ts 3164). The transcript then reveals the following:
DAVIES, MR RJ: No, your Honour, with respect.
STAVRIANOU DCJ: I don't know what this is.
DAVIES, MR JA: It's just a little film sir, to illustrate the points but it's not a film anything to do with boats or boat people. It's just a little - - -
DAVIES, MR RJ: Inappropriate, with respect, your Honour.
STAVRIANOU DCJ: Well, we'll just have to - we might have to play it.
DAVIES, MR JA: It's nothing controversial, your Honour.
DAVIES, MR RJ: Well, I don't know that.
STAVRIANOU DCJ: How long is it, Mr Davies?
DAVIES, MR JA: About 30 seconds, sir.
STAVRIANOU DCJ: Is it? All right.
DAVIES, MR JA: Perhaps a little more.
STAVRIANOU DCJ: Let's just see what it is.
DAVIES, MR RJ: With respect, - - -
STAVRIANOU DCJ: Just stop, thank you.
DAVIES, MR RJ: - - - this is not appropriate, sir.
STAVRIANOU DCJ: Members of the jury, if you'd just like to take a seat outside, and we'll see if we can sort this out.
(At 2.19 pm the jury retired)
STAVRIANOU DCJ: Yes. That can be played through then, thank you.
DAVIES, MR RJ: Really?
STAVRIANOU DCJ: Yes. How is this going to help the jury, Mr Davies?
DAVIES, MR JA: Well, it just draws their attention to the fact - their own life experience of being aware. It keenly draws into sharp relief - a picture is worth a thousand words.
In my respectful submission, it does no harm, sir. The jury may find it of assistance in having their attention drawn to the issue which has so much been at the heart of the submissions of the accused. I really don't see, sir, with the greatest of respect to my learned friend why anything of this nature shouldn't be appropriate which opens the mind or draws the jury's attention to the issues. But, you know, I'm in the hands of the court.
DAVIES, MR RJ: It's inappropriate, with respect sir, because it has no proper part in counsel's submissions to a jury. It bears no analogy to the evidence that's been given, and it's not appropriate to put in some form of smart alec test to see if you spot the moon bear or not.
STAVRIANOU DCJ: What do you say, Mr Davies, about that?
DAVIES, MR JA: It's uncontroversial, sir. It's uncontroversial. It simply draws the jury's attention to the fact that details can be missed.
STAVRIANOU DCJ: I'll let you play it, Mr Davies.
DAVIES, MR JA: Thank you, sir.
STAVRIANOU DCJ: Thank you. We'll have the jury back in.
DAVIES, MR RJ: Well, with great respect, your Honour will have to deal with the relevance of it in your charge because I repeat with great respect, I'm not quibbling with your ruling, but counsel cannot put things like this up as part of their address. It's not part of the material and it's not relevant to the case.
STAVRIANOU DCJ: He's only seeking to draw an example though, Mr Davies. That's all he's doing, it's just it's as if he's describing - - -
DAVIES, MR RJ: Well, you might as well bring a couple of people in [to] do an act and then say who saw what? It's not an address, sir (ts 3164 - 3166).
56 The prosecutor's interruption on this occasion was appropriate. Defence counsel should have disclosed to the trial judge and the prosecutor, before the commencement of defence counsel's closing address, that he proposed to show the DVD to the jury. Defence counsel should have provided a copy of the DVD to his Honour and the prosecutor, before defence counsel commenced his closing address, so that each of them had an opportunity to consider whether it was proper for the DVD to be shown to the jury.
57 On 27 July 2010 at 2.22 pm, the prosecutor made this interruption in the presence of the jury:
DAVIES, MR RJ: Your Honour, I'm sorry to interrupt, but this is when they're getting on a boat at night-time. What on earth is counsel talking about? (ts 3168).
58 After a short interchange between the trial judge and counsel, the jury retired at 2.28 pm. The trial judge then told the prosecutor that it was 'unusual to interrupt a closing' (ts 3170). The prosecutor responded:
DAVIES, MR RJ: It is an unusual step and it ought, with great respect, to be a trial judge who beats me to it but when something as outrageous as that is being done by counsel, it is inevitable. This is the first interruption there's been other than that minor attempt in conjunction with your Honour to assist defence counsel when he spoke of the evidence of the accused instead of the witnesses. But when something is so far off the beam as that, it's inevitable that if that sort of thing continues, one or other of us has to stop it in the bud, if your Honour please (ts 3170). (emphasis added)
59 It is apparent from this passage that the prosecutor sought to justify his interruption by, in substance, telling the trial judge, under cover of the mantra 'with great respect', that his Honour's discharge of his judicial function was deficient. The prosecutor's response to his Honour was impertinent and disrespectful.
60 A little later, the trial judge ruled, in effect, that any submissions the prosecutor might have in relation to defence counsel's closing address should not be made until a scheduled adjournment of the proceedings occurred (no doubt, to ensure that the flow of defence counsel's submissions was not disrupted and any submissions by the prosecutor were not made in the presence of the jury) (ts 3171). The prosecutor retorted:
DAVIES, MR RJ: Well, I have to rely on your Honour in that case, sir (ts 3171).
61 Despite the trial judge's ruling, there were other interruptions by the prosecutor, in the presence of the jury, of defence counsel's closing address. I note, in particular, the following:
(a) On 28 July 2010 at 12.24 pm:
DAVIES, MR RJ: There is no evidence whatever of that, your Honour.
STAVRIANOU DCJ: Yes.
DAVIES, MR JA: My recollection is that he - we had a lot of discussion as to a named figure with respect to being paid money. The main figure was put to him as being of that particularly relevant branch of the Indonesian armed forces.
DAVIES, MR RJ: No, your Honour.
STAVRIANOU DCJ: No.
DAVIES, MR RJ: He denied that he'd ever even heard of the second person that counsel put to him.
STAVRIANOU DCJ: He said that he - - -
DAVIES, MR JA: Sorry?
STAVRIANOU DCJ: I think he said he hadn't heard of that person, Mr Davies. We can check the transcript in due course.
DAVIES, MR JA: Yes, well, we'll check the transcript and get back to that. And excuse me, your Honour.
STAVRIANOU DCJ: That can be checked over lunch and we'll sort it out with the jury members.
DAVIES, MR JA: Yes, it can. It can.
STAVRIANOU DCJ: The jury - you get that part read to you, so there's no misunderstanding about what the evidence was.
DAVIES, MR JA: Yes (ts 3233 - 3234).
(b) On 28 July 2010 at 2.52 pm:
DAVIES, MR RJ: Your Honour, there is no basis in the evidence upon which it could be suggested that was a description of Hajy Bagy [sic].
STAVRIANOU DCJ: I think the evidence is that that's a description of Hadi, I think, isn't it? The accused, is that the description?
VISSCHER, MS: I'm sorry if I misspoke that - - -
STAVRIANOU DCJ: I think you may have. Yes, I think you may have said Hajy - - -
VISSCHER, MS: No, no, no. Sorry, the - - -
STAVRIANOU DCJ: Bager.
DAVIES, MR RJ: No, sorry about that, your Honour.
STAVRIANOU DCJ: I think it's - - -
DAVIES, MR RJ: However my learned friend described it, he's no doubt - - -
VISSCHER, MS: Hajy Bager was the people smuggler. I'm sorry, a description of Mr Ahmadi.
STAVRIANOU DCJ: 1,189, isn't it, Ms Visscher? That's the page you're on?
VISSCHER, MS: Yes, yes, yes.
STAVRIANOU DCJ: Right.
VISSCHER, MS: Yes, your Honour.
STAVRIANOU DCJ: Yes, thanks.
DAVIES, MR RJ: My apologies.
STAVRIANOU DCJ: I'm getting a bit nervous, members of the jury, in case I do this with the names as well when I'm speaking to you. No doubt I'll have two lots of people correcting me as well as 14 of you who realise that I've perhaps got the name wrong as well, so just bear all that in mind.
DAVIES, MR RJ: Well, I have to take responsibility for that one, sir.
STAVRIANOU DCJ: Keep going, Ms Visscher. Sorry. 1,189 I think you were just about to tell us what - - - (ts 3258 - 3259).
(c) On 28 July 2010 at 3.27 pm:
DAVIES, MR RJ: Well, before counsel moves on, your Honour, there are two pages of what the witness said he saw the accused doing.
STAVRIANOU DCJ: Just continue, Ms Visscher.
VISSCHER, MS: Your Honour, I'll - jury, I'm just going to deal with this. The lead counsel for the prosecution has seen fit to interrupt my closing with something that must be very, very important, and I just want to clarify that now. And I don't know whether - - -
STAVRIANOU DCJ: No, you can keep going, Ms Visscher. I'm not saying you should stop.
VISSCHER, MS: Okay (ts 3266 - 3267).
(d) On 29 July 2010 at 10.26 am:
DAVIES, MR RJ: Your Honour, why has counsel skipped the middle of page 1,360?
STAVRIANOU DCJ: I'll let you continue, Ms Visscher. It may mean that I have to read the entire transcript to the jury, but we'll see how we go.
VISSCHER, MS: Please, let me (ts 3287).
(e) On 29 July 2010 at 11.53 am:
DAVIES, MR RJ: Well, what has this got to do with the trial?
DAVIES, MR JA: He used the - actually, I thought there was a direction senior counsel wasn't to interrupt?
STAVRIANOU DCJ: Just keep going, Mr Davies, thank you.
DAVIES, MR JA: I will, if you don't mind, your Honour. I'm sorry, ladies and gentlemen.
STAVRIANOU DCJ: Just keep going (ts 3308).
62 The prosecutor should not have interrupted defence counsel's closing address in the manner I have recounted at  above. The prosecutor should have raised his objections with the trial judge, in the absence of the jury, during a scheduled adjournment of the proceedings. If there was any merit in any of the objections then it was open to the trial judge, as he thought fit:
(a) to permit the prosecutor to give an address in reply (if the objection concerned an assertion of fact by defence counsel that was not supported by evidence), as contemplated by s 145(3) of the Criminal Procedure Act; or
(b) to make appropriate comment to the jury, either immediately after the scheduled adjournment or in the course of his Honour's summing up.
63 However, when all of the prosecutor's interruptions (including those which I have not specifically mentioned) are evaluated, in the context of defence counsel's very lengthy address as a whole, it must be concluded that the interruptions did not in effect deprive the appellant of his entitlement to have defence counsel address the jury in closing. The interruptions did not occasion a miscarriage of justice.Conclusion
64 Each of the proposed grounds of appeal has no reasonable prospect of success. Leave to appeal should be refused, and the appeal dismissed.
65 MAZZA J: I agree with Buss JA that leave to appeal on both grounds should be refused. I respectfully agree with his reasons on ground 1. I wish to say something of my own on ground 2.
66 The closing addresses of both prosecuting and defence counsel were lengthy. Each address lasted more than two sitting days. Counsel were permitted by his Honour to break up their address into approximately 1 hour periods. At the end of each period, the jury left the courtroom for a short adjournment.
67 Prosecuting counsel interrupted on eleven separate occasions over the length of the defence closing address. On the third of those occasions, his Honour directed prosecuting counsel to wait for a break in proceedings 'if we can': ts 3171.
68 Some of the interruptions were innocuous. Once, prosecuting counsel asked for an exhibit number: ts 3221. Twice, he assisted defence counsel: ts 3148, 3251. On another occasion, there was confusion about a name: ts 3258 - 3259. None of these could conceivably give rise to a miscarriage of justice.
69 On two occasions, interruptions by the prosecutor were, in my opinion, appropriate at the time they were made. At one point in defence
counsel's address, and without warning, he indicated his intention to play to the jury a short DVD which was not an exhibit. The prosecutor made an objection to this course: ts 3164. Although the objection was not upheld, the point he made was strongly arguable. Later, a submission was made to the jury by defence counsel which was arguably contrary to an assurance given by defence counsel at some earlier point in the proceedings: ts 3236 - 3244.
70 However, there were occasions when the prosecutor made objections which could have, and should have, especially in light of his Honour's direction, been dealt with at one of the many adjournments. For example, the prosecutor took issue with:
(a) a defence submission concerning an absence of surveillance tapes: ts 3168;
(b) whether there was any evidence to support a submission: ts 3233;
(c) defence counsel's apparent failure to refer to parts of a witness' testimony: ts 3266, 3287; and
(d) the relevance of a statement made by defence counsel: ts 3308.
71 Section 145 of the Criminal Procedure Act 2004 (WA) deals with closing addresses. It is as follows:
(1) When the parties have finished giving or adducing evidence in a trial, the prosecutor is entitled to give a closing address to the court about the whole case.
(2) Immediately after the prosecutor has given or declined to give a closing address, the accused is entitled to give a closing address to the court about the whole case.
(3) If in an accused’s closing address any fact is asserted that is not supported by evidence in the trial, the court may permit the prosecutor to give an address to the court in reply to the assertion.
72 The practice in this State is for closing addresses to be delivered generally without interruption from opposing counsel.
73 In most instances, rather than interrupting a closing address, the better course will be for opposing counsel who wishes to object to bring the matter to the attention of the trial judge in the absence of the jury, either at the end of the address or at a convenient adjournment of the proceedings. However, there will be times, hopefully infrequent, where, depending upon the circumstances, an immediate objection is justified. It is not necessary, nor indeed is it possible, to catalogue all such circumstances.
74 Whenever an objection is made, there are a number of potential courses open to a judge if the objection is upheld. A judge may choose to do nothing. The judge may invite counsel to correct the error. The judge may make an appropriate comment, either at the time or during his or her summing up. A judge may, if the objection relates to a fact asserted by the defence that is not supported by the evidence in the trial, permit the prosecutor to give an address to the court in reply to the assertion: s 145(3) of the Criminal Procedure Act.
75 Although some of the prosecutor's interruptions should not have been made when they were, I am satisfied that they did not, either individually or collectively, give rise to any miscarriage of justice. Having regard to the entire defence closing address, they would not have unduly distracted the jury or minimised the impact of the submissions being made by defence counsel. It is clear that the appellant's case was put forcefully and fully to the jury. Ground 2 has, in my opinion, no reasonable prospect of success.