Haidari v R

[2015] NSWCCA 126

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Haidari v R [2015] NSWCCA 126
Hearing dates:	3 February 2015
Decision date:	01 June 2015
Before:	Gleeson JA at [1]; Johnson J at [2]; Hall J at [100]
Decision:	1. Time extended to 23 October 2014 for the Appellant to file a Notice of Appeal. 2. Leave refused under Rule 4 Criminal Appeal Rules to rely upon Ground 1. 3. Appeal against conviction dismissed.
Catchwords:	CRIMINAL LAW - appeal against conviction - Appellant convicted of riot at Villawood Immigration Detention Centre - identification of Appellant by client service officer employed at the Centre - identification partly from video footage of incident - whether officer’s evidence was inadmissible as opinion evidence - no objection taken to evidence at trial - held was evidence of fact and not opinion - no miscarriage of justice demonstrated - Rule 4 Criminal Appeal Rules - leave refused - whether verdict unreasonable - challenge to reliability of identification evidence - verdict not unreasonable - appeal dismissed
Legislation Cited:	Crimes Act 1900 Criminal Appeal Act 1912 Evidence Act 1995 Criminal Appeal Rules
Cases Cited:	Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1 Dodds v R [2009] NSWCCA 78; 194 A Crim R 408 FP v R [2012] NSWCCA 182 Geitz v R [2013] NSWCCA 289 Gonzales v R [2007] NSWCCA 321; 178 A Crim R 232 Libke v The Queen [2007] HCA 30; 230 CLR 559 M v The Queen [1994] HCA 63; 181 CLR 487 Nguyen v R [2007] NSWCCA 363; 180 A Crim R 267 Parhizkar v R [2014] NSWCCA 240 Picken v R [2007] NSWCCA 319 R v Abusafiah (1991) 24 NSWLR 531 R v Ali; R V Amiri; R v Feili; R v Haidari; R v Parhizkar [2013] NSWSC 871 R v Beattie [2001] NSWCCA 502; 127 A Crim R 250 R v Drollett [2005] NSWCCA 356 R v FDP [2008] NSWCCA 317; 74 NSWLR 645 R v Marsh [2005] NSWCCA 331 R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304 R v Moussa [2001] NSWCCA 427; 125 A Crim R 505 R v Smith [1999] NSWCCA 317; 47 NSWLR 419 R v Tripodina (1988) 35 A Crim R 193 Seltsam Pty Limited v McGuiness [2000] NSWCA 29; 49 NSWLR 262 Smith v The Queen [2001] HCA 50; 206 CLR 650 Tekely v R [2007] NSWCCA 75 WC v R [2015] NSWCCA 52
Texts Cited:	---
Category:	Principal judgment
Parties:	Ali Haidari (Appellant) Regina (Respondent)
Representation:	Counsel: Ms A Francis (Appellant) Mr G Farmer SC (Respondent) Solicitors: Blair Criminal Lawyers (Appellant) Commonwealth Director of Public Prosecutions (Respondent)
File Number(s):	2012/12243
Publication restriction:	---
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Crime Citation: R v Ali; R V Amiri; R v Feili; R v Haidari; R v Parhizkar [2013] NSWSC 871 (sentence) Date of Decision: 17 April 2013 (conviction) 28 June 2013 (sentence) Before: R A Hulme J File Number(s): 2012/12243

Judgment

1. GLEESON JA: I agree with Johnson J.

2. JOHNSON J: The Appellant, Ali Haidari, seeks an extension of time to appeal against his conviction on 17 April 2013 for an offence of riot under s.93B Crimes Act 1900, following a trial before RA Hulme J and a jury in the Supreme Court of New South Wales.

3. The Appellant was sentenced to imprisonment comprising a non-parole period of one year and two months commencing on 28 April 2013 and expiring on 27 June 2014, with a balance of term of eight months commencing on 28 June 2014 and expiring on 27 February 2015.

4. The total term of the sentence expired on 27 February 2015. There is no appeal against sentence.

Application for Extension of Time

5. The Appellant relies upon the affidavit dated 4 November 2014 of his solicitor, Edwina Lloyd, in support of the application for an extension of time. The affidavit discloses circumstances in 2014 which were beyond the control of the Appellant himself.

6. The Crown did not oppose the extension of time which, in the circumstances, should be granted.

Grounds of Appeal

7. The Appellant communicated the following grounds of appeal:

1. Ground 1 - the admission of the evidence of Officer Kiner identifying the Appellant, from aspects of footage of events within the Villawood Detention Centre, has given rise to a miscarriage of justice.

2. Ground 2 - The trial Judge erred in his directions to the jury in respect of the elements of riot - this ground was abandoned at the hearing of the appeal in light of the decision of this Court in Parhizkar v R [2014] NSWCCA 240.

3. Ground 3 - the verdict is unreasonable.

8. As no objection was taken at trial to the matter now complained of in Ground 1, the Appellant requires leave under Rule 4 Criminal Appeal Rules to rely upon this ground.

Factual Background

9. The Appellant stood trial with a number of other persons for alleged offences of riot and affray said to have been committed at the Villawood Immigration Detention Centre (“Detention Centre”) on 20 April 2011. Four persons were convicted of riot and one of affray.

10. The factual background to the present appeal may be gleaned sufficiently from the remarks on sentence of RA Hulme J: R v Ali; R V Amiri; R v Feili; R v Haidari; R v Parhizkar [2013] NSWSC 871 at [5]-[6]:

“5   To put into context the actions of each offender which led the jury to find them guilty of the offences I have just indicated, it is necessary to set out in some detail what occurred at Villawood on 20 April 2011. For this purpose I will adopt what I said in sentencing Mr Chenarjaafarizad (with appropriate modifications where necessary):

‘[4]    [Villawood] is an approved place under the Migration Act 1958 (Cth) for the detention of persons not authorised to enter or remain in Australia. Staffing at [Villawood] was contracted by the Department of Immigration and Citizenship ('DIAC') to a company known as Serco.

[5]    There are three compounds within [Villawood]; [each of the offenders were] housed in the Fowler Compound. There were four residential buildings within Fowler, named the Macquarie Building, the Nepean Building, the Clarence Building and the Darling Building. There were sundry other buildings, such as an office, mess, recreation room, gym and a laundry. There were 158 detainees within Fowler on 20 April 2011.’

6   The Crown case was that on 20 April 2011 a large number of detainees within the Fowler Compound set about a course of protesting the nature and circumstances of their detention and did so with the use of violence.

‘[8]    Two detainees, Mehdi Darabi and Amir Morad Mansoor, were seen on the roof of the Macquarie Building early in the morning of 20 April 2011. Thereafter they were seen to engage in various activities which included abusing Serco staff and throwing roof tiles.

[9]    In the early afternoon the activities officer tried to commence a game of soccer but Darabi and Mansoor told him not to because they were ‘making a point by being on the roof’. More tiles were thrown. A detainee on the ground, Mahmood Dadash, approached the activities officer and remonstrated with him in an attempt to have him desist from starting the soccer game. Another detainee, Ali Abdollahi, approached in the company of a large number of other detainees and threw punches at the activities officer but fortunately they did not connect.

[10]    Around the middle of the afternoon a staff member who was taking refreshments to staff near the Macquarie Building was abused, told to ‘fuck off’ and had a tile thrown at him. Mansoor called out, ‘we're up here for a reason, don't drink in front of us, we are up here for a reason. How dare you eat or drink in front of us. If you drink or eat in front of us, we're going to throw tiles at you’. Staff who had formed a cordon around the Macquarie Building to prevent other detainees getting onto the roof were ordered to move back.

[11]    Detainees on the ground threw bedding and water bottles up to the roof. This activity continued and at about 6.00pm Mansoor called out to staff, ‘Don't stop them otherwise you'll get a tile thrown at your head’.

[12]    More detainees attempted to join Darabi and Mansoor on the roof after 7.00pm. There was a large group on the ground, estimated to be between 40 and 60, aggressively yelling at Serco staff and management. There was a rush towards the Macquarie Building and more detainees made their way to the roof.

[13]    At about 7.30pm, detainees were yelling, ‘we want freedom’. This continued for some time. Some of the detainees on the roof made ropes out of bed sheets to assist others to climb up.

[14] At about 8.00pm, there was encouragement to those on the ground to continue the disturbance and come up to the roof. Tiles were thrown at staff who were trying to prevent them. One tile landed no more than a metre from one staff member who, naturally enough, had concerns for the safety of her staff and the other detainees.

[15]    One officer estimated that at about 8.20pm there were 80-90 detainees around the Macquarie Building. Thereafter the situation deteriorated with more shouting, yelling and abuse, tile throwing and other threatening behaviour towards staff.

[16]    There was a bank of payphone booths near to the Macquarie Building. At about 10.00pm, [Saied Chenarjaafarizad] was seen to be banging on the Perspex side of one of the booths. ...

...

[18]    There was an altercation between [Chenarjaafarizad] and a male member of staff. [He] repeated the demands that were being made by one of the detainees on the roof, Majid Parhizkar, for cigarettes and food. He twice grabbed the staff member and then walked away; raising his arms and saying ‘fuck you, fuck you’.

[19]    Detainees ... started to run around the compound discharging fire extinguishers. ... [I]t is not suggested that any member of staff was affected by any of the spray or hit by [a] fire extinguisher.

[20]    Detainees dragged wheelie bins onto the soccer field where the rubbish was tipped out and then set alight. ...

[21]    Timber tables and chairs were taken onto the field and put on the fire. ...

[22]    A number of detainees ... dismantled a set of soccer goal posts. ... One of those involved threw parts at Serco staff. ...

[23]    These various events ... contributed significantly to the utter mayhem that was going on in the compound at around 11.00pm. Staff were confronted with detainees on the roof throwing tiles at them and at buildings; a roaring bonfire on the soccer field; detainees running around discharging fire extinguishers and throwing them and other objects at staff. They were forced to retreat behind a wall of the office so as not to be struck by tiles.

[24]    Eventually a group of around 20 or 30 detainees turned their attention to the staff and advanced towards them. The most senior officer described them as advancing ‘quickly and purposefully’. One of them was holding a fire extinguisher above his head. When they got near, this man looked like he was going to throw the fire extinguisher at the staff but he hesitated and threw it at a window in the office. Another detainee then came from the bonfire with a burning piece of wood and leaned in through the broken window and set fire to the office. At this point the staff fled the compound.

[25]    Fires were set in a number of other buildings thereafter. The total amount of damage caused in the Fowler Compound and in other areas within Villawood was extreme; the estimated cost of reconstruction and repair is said to be in the order of $9 million. ...’”

11. In relation to the Appellant, his Honour made particular findings of fact at [21]:

“Mr Haidari was seen on the roof of the Macquarie Building at around 7.30pm. He was involved in lifting up tiles and passing them to another detainee (Parhizkar) who threw them. He also threw some tiles himself.”

Issues in the Trial of the Appellant

12. The trial Judge directed the jury that the elements of the crime of riot under s.93B Crimes Act 1900 were as follows (MFI36; AB342-343):

1. there were 12 or more persons who were present together;

2. those 12 or more persons used or threatened unlawful violence for a common purpose;

3. the conduct of these 12 or more persons, taken together, were such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety;

4. the accused was one of the 12 or more persons;

5. the accused used unlawful violence for the common purpose; and

6. the accused intended to use violence or was aware that his conduct may be violent.

13. His Honour directed the jury that “violence” meant any violent conduct, and included violent conduct towards property as well as towards persons. It was not restricted to conduct that causes, or is intended to cause, injury or damage. It includes any other violent conduct, such as throwing something at someone that is capable of causing injury, whether or not it does.

14. In his closing address to the jury, counsel for the Appellant made clear that the issue in the trial was whether the Crown had established elements (d), (e) and (f), namely that the Appellant was on the roof of the Macquarie Building using unlawful violence by throwing tiles (AB152).

The Role of Officer Kiner’s Evidence at the Appellant’s Trial

15. Before moving to the first ground of appeal, it is appropriate to place in context the evidence of Officer Kiner at the trial of the Appellant.

16. Officer Nathan Kiner was a client service officer employed by Serco at the Villawood Immigration Detention Centre.

Pretrial Hearing

17. Prior to the jury being empanelled, a wide-ranging voir dire (by way of a Basha Inquiry) was held. Officer Kiner was called to give evidence on the voir dire on 31 January 2013 (AB8-30). Three statements of Officer Kiner dated 23 April 2011, 6 June 2011 and 31 October 2012 (AB324-341) were tendered on the voir dire (AB8). These statements, amongst other things, related to his recognition of the Appellant on the night of 20 April 2011 and in the ABC footage taken of the events, to which further reference will be made.

18. Although they were not in evidence before the jury, it is appropriate to refer to the statements of Officer Kiner, in particular for the purpose of considering whether leave should be granted under Rule 4 to allow the Appellant to rely upon Ground 1.

19. The body of Officer Kiner’s statement of 23 April 2011 made no express reference to the Appellant. He stated that, between about 7.45 pm - 9.00 pm, he was walking around the Macquarie Building together with Officers O’Connor, Atchaparian and Papa. About this time, Officer Kiner “observed about 11-13 clients climb onto the roof of the Macquarie building” (paragraph 13). He said that, at about 9.30 pm “the clients on the roof of the Macquarie began to rip the tiles off and throw them at O’Connor, Atchaparian, Papa and [himself]” (paragraph 14). He said “I recognised the person throwing the tiles and know him to be Majid PARHIZKAR” (paragraph 14).

20. Officer Kiner described later in that statement the preparation of notes in the early hours of 21 April 2011 (paragraph 34; AB329):

“Sometime between 2:00am and 8:00am, O’CONNOR, ATCHAPARIAN and I sat together and compiled a document of contemporaneous notes in relation to our observations. I have signed a copy of these notes and now attach it to this statement as Annexure B.

ANNEXURE B: 4 PAGES OF CONTEMPORANEOUS NOTES, SIGNED BY O’CONNOR, ATCHAPARAIN AND I.”

21. The notes signed by Officer Kiner and others listed “Fowler clients” who were “observed on the roof of Macquarie”. The Appellant was included with a notation “roof top protest”. There was no mention of him throwing tiles, although entries of that type were recorded for some of the other listed persons (AB332-333).

22. Officer Kiner’s statement of 6 June 2011 expanded on his earlier statement. He said at paragraph 7 (AB337):

“In paragraphs 14 and 15 of my statement dated 23 April 2011, I stated that about 9.30pm the clients on the roof of the Macquarie Building began to rip tiles off the roof and throw them at us. I also stated a person I saw throwing the roof tiles was Majid PARHIZKAR. At that time I also saw a person I know as Haidari ALI handing tiles to PARHIZKAR, which were then thrown towards myself and others, as well as a group of telephone booths located near to where I was standing at the time with other Serco staff. At this time I believe there were still between 11 and 13 persons on the roof of the Macquarie Building. Persons on the roof of the Macquarie Building at this time who were involved in removing and throwing roof tiles were being encouraged by the group on the ground beside the Macquarie Building.”

23. Officer Kiner made a further statement on 31 October 2012. He stated that he had viewed on 10 October 2012 a DVD containing ABC footage of the events. Whilst doing so, he said that he recognised a number of persons, including the Appellant (paragraphs 6-7; AB339-340). His observations included the Appellant removing tiles and throwing tiles off the roof (AB340). He described his interaction with detainees in the course of his duties, stating “I have a strong familiarity with the clients as part of my regular duties and am able to recognise them by name” (paragraph 8; AB341).

24. Although cross-examined by counsel for other accused persons, Officer Kiner was not cross-examined on the voir dire by experienced counsel appearing for the present Appellant. Nor was any objection taken or foreshadowed to any part of Officer Kiner’s evidence concerning his identification of the Appellant as a person throwing tiles from the roof of the Macquarie Building.

The Trial

25. Officer Kiner was called by the Crown, and gave evidence in the presence of the jury between 26 February 2013 and 1 March 2013 (AB31-118). No objection was taken to Officer Kiner giving evidence that he recognised the Appellant, that he saw him on the roof of the Macquarie Building removing tiles and passing them to the co-accused, Majid Parhizkar (“Parhizkar”), nor to his evidence that he recognised the Appellant as one of the people recorded in the ABC footage. Cross-examination of Officer Kiner by counsel for the Appellant was directed to whether he was mistaken about his recognition of the Appellant.

26. It was the Crown case that the Appellant went onto the roof of the Macquarie Building at about 7.30 pm on 20 April 2011. Based upon the evidence of Officer Kiner, the Crown said that the lifting of tiles by the Appellant, and the throwing of tiles by others, was observed by Officer Kiner to occur some time after 9.30 pm (AB45, 47). Based upon the evidence of the ABC footage (Exhibit C) and Officer Kiner’s evidence based on that footage, the Crown contended that the lifting and throwing of tiles by the Appellant occurred some time after 10.15 pm.

27. Further reference will be made to this evidence when considering the grounds of appeal.

28. The evidence at the trial also included video footage taken on a mobile phone from within the Fowler Compound. It was the Crown case that the mobile phone images (Exhibit J) and the ABC footage (Exhibit C) graphically portrayed several acts of violence engaged in by some of the detainees, including the Appellant, both before and after fires were lit in the Fowler Compound.

29. The Appellant did not give evidence at the trial. Character evidence was adduced from Ellice Grien to the effect that the Appellant was a quiet, peaceful, polite person.

30. It was the Appellant’s case that insofar as Officer Kiner nominated the Appellant’s name, his evidence did not reliably identify the Appellant. It was said that Officer Kiner did not otherwise purport to, nor did he, identify the Appellant from photographs or by description.

Ground 1 - Challenge to the Admission of the Evidence of Officer Kiner

Submissions of the Appellant

31. Ms Francis, counsel for the Appellant, acknowledged that no objection had been taken by trial defence counsel to evidence from Officer Kiner that the Appellant was observed by him on the roof and was depicted in the footage. Counsel acknowledged that leave under Rule 4 Criminal Appeal Rules was required to rely upon the first ground of appeal. It was accepted that it was necessary to demonstrate that a miscarriage of justice had occurred, before leave under Rule 4 would be granted.

31. Ms Francis submitted that the evidence of Officer Kiner now challenged under Ground 1, if relevant, was opinion evidence. Counsel submitted that the position here was similar to that in R v Drollett [2005] NSWCCA 356, where an appeal against conviction was upheld in circumstances where the trial Judge allowed a witness to a gaol assault (a Mr Stephens) to identify the Appellant from CCTV footage of the incident, where the footage did not represent what the witness himself observed of the incident. Simpson J (McClellan CJ at CL and Rothman J agreeing) said at [54]-[57]:

“54    It is not at all uncommon for a witness to give evidence that a photograph or video depicts a particular place or scene as the witness observed it at some relevant time. Such evidence may include evidence that the film depicts an incident or even the subject of the litigation. Ordinarily, that evidence will be admitted as factual evidence, and its relevance will be apparent.

55    It is not difficult to envisage that a witness giving evidence of that kind may also be permitted to identify objects or persons depicted in such a scene which would not be readily (or at all) identifiable to the jury. One example is where the person depicted is photographed from the rear or partly obscured. A witness will be permitted to give evidence of that person’s identity. But this is evidence of fact. It is evidence of fact given from the witness’ recollection. The original or primary evidence, is, in reality, the description of the events given by the witness. The photographic material merely illustrates the oral testimony that the witness would be able to give describing the event in question.

56    It seems to me that his Honour mistook Mr Stephens’ evidence as being evidence in that category. I have already extracted some of the exchanges with counsel in which he seems to have taken the view that Mr Stephens was giving evidence, from the film footage, of what he had independently observed. That is simply not the case. Mr Stephens was not giving evidence that the footage represented what he had observed and which therefore illustrated his account of the event. The footage represented an event which he had not personally observed, except for a very small portion. When he purported to identify the appellant on the footage, he was not doing so by reference to something he had observed or of which he could give oral evidence that was illustrated by the film. Here the primary evidence was the film footage. Mr Stephens’ evidence was no more than an educated interpretation of what was depicted in the footage.

57    It was, therefore, opinion evidence.”

33. Ms Francis submitted that Officer Kiner did not assert that the footage depicted the scene to which he had been an eye witness, nor did he assert that he had observed the person who he stated was the Appellant behaving in the manner depicted in the footage. Counsel submitted that the evidence was not admissible, relying upon the reasoning of Simpson J in R v Drollett at [59]-[66].

Submissions for the Crown

34. Mr Farmer SC, for the Crown, in emphasising that leave under Rule 4 was required to argue this ground, submitted that the Appellant only sought to challenge Officer Kiner at trial on the basis that he was mistaken about his evidence, not that he did not have the capacity to identify the Appellant.

35. Further, despite being on notice about his evidence concerning who was recorded on the ABC footage engaging in acts of violence, no objection was taken by the Appellant to this evidence being given at trial. Specifically, the evidence was not challenged on the basis that it was opinion evidence and, for that reason, inadmissible.

36. The Crown submitted that Officer Kiner had given evidence about his work at the Fowler Compound, being work which he had undertaken for a period in excess of four years. The Crown pointed to the evidence of Officer Kiner in which he referred to the Appellant directly or by reference to the footage.

37. The Crown submitted that the evidence of Officer Kiner was factual evidence relevant to the case against the Appellant of the type described by Simpson J in R v Drollett at [54].

38. The Crown took issue with the Appellant’s submission that the evidence of Officer Kiner was opinion evidence for the purpose of s.76 Evidence Act 1995. If it was opinion evidence, the Crown submitted that it was evidence deriving from Officer Kiner’s knowledge of the Appellant based upon his experience and that it was relevant and admissible: s.79(1) Evidence Act 1995.

39. The Crown submitted that the Appellant’s submission was based largely on assertions that Officer Kiner was not in a position to witness the events depicted in the footage, and that he did not give an account of his prior relationship or familiarity with the Appellant. Contrary to this, the Crown submitted that the evidence of Officer Kiner about what he observed on the ABC footage was evidence of facts observed by him. Further, it was submitted that the footage depicted a particular scene which Officer Kiner observed at the time. The fact that it was taken from the other side of the building, it was submitted, did not alter this characterisation of the evidence.

40. It was submitted that leave to rely upon the first ground of appeal should be refused.

Determination

41. The issue raised in the first ground of appeal is taken for the first time on appeal before this Court. Experienced trial counsel appearing for the Appellant did not object to the evidence of Officer Kiner on the basis contended for before this Court. No evidence was placed before this Court concerning this topic. Ms Francis submits that the fact that no objection was taken by counsel for the Appellant at trial was not a consequence of any tactical decision on counsel’s behalf.

42. It is now contended that the challenged evidence was “not admissible” as it constituted opinion evidence for the purpose of s.76(1) Evidence Act 1995. The words “not admissible” in the Evidence Act 1995 ordinarily mean “not admissible over objection”: Seltsam Pty Limited v McGuiness [2000] NSWCA 29; 49 NSWLR 262 at 287 [149]; Gonzales v R [2007] NSWCCA 321; 178 A Crim R 232 at 244 [26]; WC v R [2015] NSWCCA 52 at [20]. The words “not admissible” may be contrasted with the words “is not to be adduced” (in, for example, ss.118 and 119) and similar directory words in other provisions: Gonzales v R at 243-244 [24]; WC v R at [20].

43. In Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1 at 9 [20], Gleeson CJ and Hayne J observed:

“The Evidence Act applies in an adversarial context. It is the parties, and their counsel, who define the issues at trial, select the witnesses and choose the evidence that they will lead, and to which they will take objection.”

Emphasis was given to this statement in R v FDP [2008] NSWCCA 317; 74 NSWLR 645 at 651-652 [23]-[28].

44. From time to time, an affidavit of trial counsel is read on appeal where a ground of appeal requires leave under Rule 4. The utility of affidavits of this type has been questioned: R v Moussa [2001] NSWCCA 427; 125 A Crim R 505 at [56]-[62]; Tekely v R [2007] NSWCCA 75 at 519-521 [131]. Nevertheless, it has been a not uncommon practice in this Court where Rule 4 arises, notwithstanding what was said in R v Moussa: R v FDP at 648 [14]. No affidavit was relied upon in this appeal. Although the Appellant is represented by different counsel on appeal, the same firm of solicitors appeared for the Appellant at trial and on appeal (AB1).

45. In the absence of any evidence, an inference may be available that trial counsel did not take the point now sought to be raised given the limited prospect that it would succeed, and the likely consequence that there would be a more detailed body of evidence emanating from Officer Kiner before the jury concerning his knowledge of the Appellant and his observations of events said to have involved the Appellant inside the Detention Centre on the night of 20 April 2011. An examination of the trial transcript rather suggests that the Appellant’s trial counsel, in the context of a trial with multiple accused, did nothing which may have served to expand the evidence which referred to his client. Submissions were then made to the jury that the evidence was insufficient to establish to the criminal standard that the Appellant was on the roof of the Macquarie Building throwing tiles.

46. Leave required by Rule 4 will not be granted lightly: R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304 at 313 [52]. It has been observed that the Criminal Appeal Act 1912 does not exist to enable an accused person who has been convicted on the basis of one set of issues to have a new trial under a new set of issues which the person could or should have raised at the first trial: R v Abusafiah (1991) 24 NSWLR 531 at 536. The observations cited (at [43] above) from Dhanhoa v The Queen underpin this statement from R v Abusafiah.

47. The critical issue for the Appellant to establish is that there has been a miscarriage of justice in that he has lost a real chance (or a chance fairly open) of being acquitted: Picken v R [2007] NSWCCA 319 at [21]. Another formulation of the test is that “leave will only be granted where an irregularity has occurred which is such a departure from the essential requirement of the law that it goes to the root of the proceedings”: R v Tripodina (1988) 35 A Crim R 193 at 195; FP v R [2012] NSWCCA 182 at [73]; WC v R at [9].

48. The Appellant contends in Ground 1 that the admission of the evidence of Officer Kiner identifying the Appellant from aspects of footage of events within the Detention Centre has given rise to a miscarriage of justice. It is contended that this was opinion evidence which was not admissible because of s.76(1) Evidence Act 1995.

49. Although the orders of this Court in R v Smith [1999] NSWCCA 317; 47 NSWLR 419 were set aside on appeal in Smith v The Queen [2001] HCA 50; 206 CLR 650, parts of the judgment of Sheller JA (Grove and Hidden JJ agreeing) have been cited and applied in later judgments.

50. Sheller JA observed, at 423 [19], that if a distinction must be made between fact and opinion, “it can only be one of degree, calling for a decision as to whether, on a continuum which is unmarked and for which there is no exact measure, particular testimony has passed the point where it has become evidence of an opinion”.

51. In Smith v The Queen, Kirby J (the only Judge to decide the opinion issue) observed at 667 [52] that the distinction between fact and opinion “is one of degree rather than of kind”. At 667 [54], Kirby J agreed that “a wide latitude should be accorded to the trial judge as to the applicable classification, given the blurred boundary between fact and opinion”.

52. Later cases have emphasised these observations of Sheller JA and Kirby J concerning the imprecise distinction between fact and opinion: R v Marsh [2005] NSWCCA 331 at [29], [31]; R v Drollett at [53].

53. As Simpson J observed in R v Drollett at [64], it will always be necessary to consider the circumstances of the case in question.

54. The present case may be compared with a number of other cases where issues of this type have arisen:

1. in Smith v The Queen, the police officers who purported to identify the accused person were not witnesses to the events portrayed in the photographs;

2. in R v Marsh, the accused person’s sister did not witness the alleged offence, but her evidence of identification of her brother was admitted after application of the law stated in Smith v The Queen;

3. in R v Beattie [2001] NSWCCA 502; 127 A Crim R 250, evidence of prison officers of photographic identification of the accused person, in circumstances where they had not observed the events in question, was held to have been wrongly admitted applying Smith v The Queen;

4. in Nguyen v R [2007] NSWCCA 363; 180 A Crim R 267 at 272-277 [9]-[40], this Court (referring to Smith v The Queen, R v Beattie, R v Marsh and R v Drollett) upheld decisions of a trial Judge allowing police officers (who were not present at the scene of the events) to identify accused persons from CCTV footage taken at the time of the events.

55. The Appellant’s submissions in the present appeal focused upon the decision in R v Drollett. It should be noted that, unlike this case, objection was taken to the challenged evidence at first instance in R v Drollett. In that case (and importantly), the prison officer, Mr Stephens, did not claim to have observed any part of the attack giving rise to the charge (at [18]). His observations were limited to what happened immediately after its conclusion. Mr Stephens was shown the “extremely indistinct” footage of the incident, which was “not continuous video footage, but a series of still photographs taken at one second intervals”. When shown on a video player, they produced “a staccato-like, jerky image” (at [6]). He purported to identify Mr Drollett on that footage. On the basis of the whole of the evidence given by Mr Stephens, Simpson J concluded (at [60]) “that his identification of the appellant was made, not by recognition or familiarity with the appearance of the appellant, buy rather by a process of deduction”.

56. The circumstances in R v Drollett are significantly different from the present case.

57. The hurdle posed by Rule 4 lies in the path of the Appellant. It is necessary for him to demonstrate that a miscarriage of justice has resulted.

58. For the purpose of considering this ground of appeal, and the unreasonable verdict ground (Ground 3), I have considered the evidence given by Officer Kiner, together with the mobile phone and ABC footage (Exhibits C and J). The relevant parts of Exhibits C and J were played in open court during the hearing of the appeal, and I have viewed Exhibits C and J again in Chambers since judgment was reserved by the Court.

59. A summary of the evidence of Officer Kiner before the jury, particularly in relation to the Appellant, was set out in the Crown submissions. That summary, which is accurate, states:

1. he had worked at Villawood Immigration Detention Centre for about 13 years and in the Fowler Compound for about four years (AB31);

2. he worked 12-hour shifts (AB31);

3. on 20 April 2011, he arrived at the Detention Centre at about 7.30 pm and shortly after that he arrived at the Fowler Compound (AB32);

4. at the time he arrived at the Fowler Compound, there were about four people on the roof (AB33);

5. later that evening, he saw other men making their way on to the roof and he saw approximately 11 to 13 on the roof (AB43);

6. he recognised (that is, knew to identify) some of these men, including the Appellant (AB44);

7. at about 9.30 pm, he saw the co-accused, Parhizkar, throwing tiles towards the officers and the Serco office (AB45);

8. he recalled that the Appellant was wearing dark tracksuit-type clothing, a bluish-type coloured top and bottom (AB47);

9. he saw the Appellant remove tiles and pass them to the co-accused, Parhizkar (AB47);

10. he confirmed that in October 2012, he had looked at the ABC footage and provided a statement setting out what he had observed on the footage (AB53-54);

11. he watched the video whilst in court and stated that he had observed “Mr Haidari, Ali”, wearing a blue top, blue pants throwing tiles from the roof (AB57);

12. he was shown Exhibit E (AB319), a still image taken from the ABC footage and he stated “The man with the blue top and blue pants and with a tile over his head” he “believed to be Mr Haidari, Ali” (AB58);

13. he stated “So just there, the man in the blue top and appears to be - black, sorry, head-hat, whatever, on his head, I believe that to be Mr Haidari, Ali” (AB59);

14. Officer Kiner was asked (AB59):

“Q: And the man in the all-blue tracksuit seen at [counter] 9.54 throwing things, you can’t identify him?

A: Is that the man in the middle?

Q: Yes, with his back to us?

A: I believe that is Haidari, Ali.”

15. he distinguished the Appellant, Ali Haidari, from the accused, Haider Hussein Ali (AB60).

60. During cross-examination by counsel for the Appellant, Officer Kiner gave the following evidence (again from the Crown submissions):

1. he agreed that it was approximately 9.30 pm - 10.00 pm when he saw the 11-13 people on the roof (AB76);

2. he did not agree that he did not have a sufficient degree of familiarity with some of the clients on the roof to be able to work out who they were without looking at the nominal roll (AB77);

3. he agreed that he may have looked at the nominal roll during the course of the evening (AB77-78);

4. he stated that he got to know most of the clients and that “working with them on a daily basis I got to know each and every person” (AB82);

5. he confirmed that he clearly remembered that the Appellant was on the roof, but it was possible that he got the wrong name, but “not in this case” (AB83);

6. he disputed the assertion that he may have been mistaken by his identification of the Appellant (AB90-91).

61. Officer Kiner had been employed at the Detention Centre since November 1999 and was permanently rostered in Fowler Compound since about 2007 (T567; AB31). The Appellant had been detained in the Detention Centre since 9 September 2010 (Exhibit A; AB316).

62. It is appropriate to set out extracts from the evidence of Officer Kiner concerning the Appellant. In examination in chief, he was asked (T696-7; AB43-44):

“Q. During that time, did you make any observations of the roof of the Macquarie building?

A. I did, yes.

Q. Later on had that changed in any way?

A. It did, yes.

Q. In what way?

A. More people made their way on to the roof.

Q. Did you see any of them making their way on to the roof?

A. I did, yes.

Q. How did they make their way on to the roof?

A. They pretty much used the fence line which is - it's very hard to see there. It's adjacent to the top corner of the Macquarie building, which is - the fence line was fairly close to that corner of the building and they used the fence line to help scale their way up to the top of the building.

Q. Do you know what the gap is between the fence line that you're talking about and the Macquarie building, what the width is?

A. Approximately no more than four foot, I’d say, three to four foot. It's not a big gap, no.

Q. Did you know anyone in particular that used that method to get on to the roof?

A. I can't recall anyone in particular that - no.

Q. How many people do you say you saw on the roof at about this time?

A. Approximately after they - regarding that time when they all made their way up, it would have been, I’d say, 11 to 13, approximately, people on the roof.

Q. Could you see them?

A. I could see them, yes.

Q. Could you recognise any of them?

A. I could recognise some of them, yes.

Q. Could you tell us who you saw on the roof?

A. I saw Morad Mansoor, Darabi, Mr Parhizkar, Razai, Haidari Ali I believe his name is, Ekhteyar.”

63. Soon after, Officer Kiner was asked in chief (T700; AB47):

“Q. You mentioned Ali Haidari, you saw him on the roof, is that right?

A. Haidari, Ali or Ali ---

Q. Haidari Ali, sorry?

A. That's right, yes.

Q. Can you remember what he was wearing?

A. Dark type of like tracksuit-type clothing, I believe.

Q. Colour, just dark or --

A. Like a a bluish-type colour, if I can recall correctly.

Q. Top and bottom or --

A. I believe so, yes.

Q. Did you, at the time you were on the ground in or near the Serco office, see him do anything while he was on the roof?

A. I did.

Q. What did you see him do?

A. I did see him remove tiles and pass them to Mr Parhizkar.”

64. A little later, the Crown asked Officer Kiner questions by reference to the ABC footage (Exhibit C) (T706-7; AB53-54):

“Q. Mr Kiner, you, in October last year, looked at some video footage is that right?

A. I did, yes.

Q. And you understood it was entitled “ABC Edited Footage” is that right?

A. That’s right.

Q. You understood, when you were looking at it, did you, that the camera which was used to take the footage was on the other side of the Macquarie building, as it were, from where you were inside the compound?

A. That's right, yes.

Q. When you looked at that footage were you able to recognise anybody depicted in it?

A. I could recognise a few people, yes.

Q. I think you said a little while ago that there was something in the order of 11 or 13 people on the roof?

A. That's right, yeah.

Q. When you looked at the footage you were able to recognise a few of them?

A. Some people, yeah.”

65. Exhibit C was then played in Court in the presence of the jury and Officer Kiner, and he was asked about persons visible in the ABC footage (T709-713; AB56-60). He said with respect to the Appellant (T710; AB57):

“There was also Mr Haidari, Ali, I believe, blue top, blue pants, also sighted throwing tiles from the roof.”

66. Arising from some questions asked by the trial Judge, Officer Kiner was asked questions by reference to Exhibit E, a still photograph taken from Exhibit C (T710-711; AB57-58):

“CROWN PROSECUTOR: Can exhibit E be put on to the overhead projector please?

(Exhibit E placed on to overhead projector.)

Q. Now, this is an image taken from the ABC footage, do you understand that?

A. Yes.

Q. Now, we see the man on the left of the image, is a dark top with a hoodie over his head and he appears to have some sort of white material around his forehead. He has white shoes on. Are you able to identify that man?

A. From this particular picture here it's a bit hard for me to identify that person.

Q. Next along a man with a blue top and dark pants, white hat carrying a tile. Do you recognise that man?

A. From this picture I can't, no.

Q. Behind him as we look at the image is a man wearing dark clothes again and has a narrow headband around his head. Do you recognise that man?

A. I believe that man to be Mr Razai.

Q. To the right of him, as we look at the image, the man wearing black clothes has a larger white headband and appears to have something wrapped around his right hand, do you see that?

A. Yes.

Q. Do you recognise that man?

A. Again, from this picture I can't say who that is.

Q. And then to the far right of the image the man with the blue top and blue pants with a tole over his head, do you recognise that man?

A. I believe that man to be Mr Haidari, Ali.”

67. The playing of Exhibit C continued and, soon after, Officer Kiner referred again to the Appellant (T712; AB59):

“Q. Yes?

A. That man that just bent down, I believe that to be Mr Razai.

Q. Mr Razai?

A. Mr Razai.

Q. With the-

A White headband around his head.

Q. Narrow white headband around his head: 3.57.

A. So just there, the man in the blue top and appears to be - black, sorry, head - hat, whatever, on his head, I believe that to be Mr Haidari, Ali.

Q. He seems to have black long sleeves with a blue shorter sleeved shirt over the top?

A. Over the top, yes.

Q. That’s at counter 4.21.

A. I'm sorry, but in relation to Mr Darabi and Morad Mansoor, they were both sighted towards the beginning of that video laying down, so.

Q. The man in the light green top, you are not able to identify him? A. No, I can't, no.

Q. And the man in the all blue tracksuit seen at 9.54 throwing things, you can't identify him?

A. Is that the man in the middle?

Q. Yes, with his back to us?'

A. I believe that is Haidari, Ali. I can identify Mr Morad Mansoor at the moment.”

68. Counsel for the Appellant commenced cross-examination of Officer Kiner in the following way (T761; AB73):

“Q. Mr Kiner, the first point in time you saw the person you’ve nominated as Haidari Ali on the roof that evening was when Parhizkar was throwing tiles from it, agree?

A. He was up the same time, that’s right.”

69. Officer Kiner was asked in cross-examination (T767; AB79):

“Q. Now, all of those persons, that is all of the persons from the Middle East, obviously have certain physical features in common, didn't they?

A. Such as?

Q. Well, dark coloured hair.

A. Well, the majority.

Q. Dark brown eyes.

A. Yes.

Q. Olive complexion?

A. Yes.

Q. And did that make it difficult for you to work out who was who on 21 April 2011?

A. Well, when you work with these people for the amount of time I have, you get to know these people. Some people stand out more than other people.”

70. Soon after, he was asked (T770; AB82):

“Q. You see, Mr Kiner, the similar sounding and identical names of many of the detainees make it a challenge for you at times to put a correct name to a face?

A. At certain times in certain situations, it may do, but, as I said, we work with these clients day in, day out. We got to know these clients. As I said before they all have different physical attributes and personalities which makes them stand apart from each other.”

71. Officer Kiner was asked (T771-2; AB83-84):

“Q. You just had the wrong name to the right face, do you accept that?

A. Yes.

Q. That may well be the case also, Mr Kiner, might it not, with the person that you've named Haidari Ali?

A. What may be the case?

Q. You may have put a wrong name to the correct detainee?

A. I remember that person clearly.

Q. And the question is: given the circumstances of the similar sounding names, the identical names, you may have put the wrong name, Haidari Ali, to the detainee you say you observed doing things?

A. It’s possible, but I - not in this case.

Q. At no time before yesterday had you ever provided a physical description of the person you named as Haidari Ali to anybody. Agree?

A. That’s true.

Q. What, you simply didn’t, before yesterday you had never described the bloke?

A. No.

Q. Had you?

A. No.”

72. Counsel concluded his cross-examination of Officer Kiner in the following way (T778-9; AB90-91):

“Q.. Mr Kiner, given the circumstances of that evening, the fact that, you know, lots of things were happening at once, it was a stressful situation, you were fearful for your own safety, it was a situation where many of the detainees were of similar ethnic background and had similar sounding names, is it possible that you are mistaken when you say Mr Haidari Ali was one of the clients on the roof?

A. As I said before, we got to know these clients over a period of time. Each client has a different personality, different physical attributes which stands them apart from each other. Some I got to know better than others. That's what I'm saying.

Q. I will ask the question again, given the circumstances that I won't outline again, isn't it possible that you are mistaken when you say Haidari Ali was one of the clients on the roof?

A. I made that statement one hundred percent.

Q. See, you may well have, as you did with Mr Paish's client, attributed the wrong name to the right client. Agreed?

A. I can't comment on that.

Q. Why not?

A. Because I'm human. Sometimes you make mistakes, sometimes you don't. But in this particular situation I'm sure that was Mr Haidari Ali on the roof.

Q. You see, have you ever thought you recognised someone in the past only to subsequently realise that you were mistaken?

A. It is possible.

Q. Ever made a mistake?

A. Of course I've made mistakes.”

73. Having considered the evidence of Officer Kiner and the footage depicted in Exhibits C and J, I consider this case to be distinguishable from R v Drollett. In that case, Mr Stephens did not see any part of the event constituting the offence. Here, Officer Kiner observed critical events at relevant times. He said that he observed the Appellant on the roof with tiles. When shown Exhibit C, he said that it showed the Appellant throwing tiles from the roof. He gave evidence of those events including identification of the Appellant, whom he knew from his working experience at the Detention Centre.

74. It has not been demonstrated that the further evidence of Officer Kiner by reference to the ABC and mobile phone footage constituted opinion evidence. Rather, the present case falls within the circumstances described by Simpson J in R v Drollett at [54]-[55].

75. The fact that Officer Kiner may not have been observing events on top of the roof of the Macquarie Building from the same angle as that depicted in the film, did not operate against his giving evidence by reference to the footage of events, at least some of which he himself had observed. As Simpson J noted in R v Drollett at [55], an example of factual evidence of this type arises where the person depicted is photographed from the rear or partly obscured. In my view, this is a fair description of some of the visual images shown to Officer Kiner and the jury about which he gave evidence.

76. The Appellant faces a substantial hurdle with this ground of appeal. He must demonstrate that Officer Kiner’s challenged evidence falls on the opinion side of the blurred boundary that lies between fact and opinion. There is no bright line test to be applied. Unlike other cases where this issue has arisen (see [54] and R v Drollett), Officer Kiner was present at the scene and testified that he had seen the Appellant on the roof with tiles in his hands. The ABC footage provided strong and clear evidence adverse to the Appellant, if the jury was satisfied that Officer Kiner had correctly identified the Appellant.

77. I am not persuaded that the evidence given by Officer Kiner which is now challenged was opinion evidence. Rather, it was factual evidence which was not objected to, but was challenged by the Appellant’s counsel in cross-examination and closing address upon the basis that this was a case of mistaken identity.

78. The Appellant has not demonstrated that a miscarriage of justice has occurred, so that leave to rely upon the first ground of appeal should be refused under Rule 4.

Ground 3 - The Unreasonable Verdict Ground

Submissions of the Appellant

79. In support of this ground, counsel submitted that Officer Kiner’s evidence was not reliable, that it was based upon his “belief” that the Appellant was the person whom he observed lifting tiles off the roof, and that the footage was not of sufficient clarity taken on its own, or in conjunction with the evidence of Officer Kiner, to support the conviction of the Appellant.

80. It was submitted that Officer Kiner had made mistakes with respect to names of persons and that this served as well to undermine the cogency of his evidence. Counsel submitted that there was no evidence upon which this Court was able to favourably assess the reliability of Officer Kiner’s belief in support of the conclusion that the relevant detainee was in fact the Appellant.

Submissions of the Crown

81. The Crown referred again to the evidence of Officer Kiner, as summarised at [59]-[60] above, in support of the submission that the verdict in this case was not unreasonable.

82. The Crown submitted that the jury had the evidence of the ABC footage which, taken with other evidence, assisted a finding that it was the Appellant (amongst others) depicted on the roof. The jury had available evidence of the Appellant’s image in the nominal roll, and had been able to observe him during the course of the trial. It was open to the jury to conclude, from their own observations, that it was the Appellant depicted in the footage lifting tiles from the roof and throwing them, both being acts of violence for the purpose of the charge.

83. The Crown submitted that this Court would be assisted by its own viewing of the relevant footage, in the same way as the Court had been assisted in Dodds v R [2009] NSWCCA 78; 194 A Crim R 408 at 433-434 [99], [102].

84. The Crown submitted that Officer Kiner had given evidence of his familiarity with the Appellant. It was submitted that the Appellant did not challenge Officer Kiner’s capacity to give such evidence on the basis that he did not know him well enough to be able to identify him. Rather, the Appellant’s challenge to Officer Kiner’s evidence involved assertions that he used the nominal roll to assist him to identify people on the night, or that he may have been mistaken about the name of the person he saw, or that he was mistaken that it was the Appellant that he saw.

85. The Crown submitted that, having regard to the evidence before the jury, the verdict of guilty was reasonable.

Determination

86. In Geitz v R [2013] NSWCCA 289, Beazley P (Price J and myself agreeing) set out, at [32]-[37], the principles to be applied in determining a ground of appeal that a conviction is unreasonable or cannot be supported having regard to the evidence:

“32   In M v The Queen [1994] HCA 63; 181 CLR 487, at 493, per Mason CJ, Deane, Dawson and Toohey JJ, the High Court stated that the test to be applied in determining whether the verdict was unreasonable or could not be supported having regard to the evidence was as follows:

‘Where, notwithstanding that as a matter of law there is evidence to sustain a verdict ... the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.’

33   Earlier in M, at 492, their Honours had said:

‘In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand' (citations omitted).

34   The Court added, at 494:

‘In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.’

35   M was approved in MFA v The Queen [2002] HCA 53; 213 CLR 606. Their Honours noted that for the purposes of s 6(1), the starting point was that the jury had the primary function in determining the guilt or innocence of the accused. It was integral to that proposition that the jury had seen and heard the witnesses.

36   In applying this test, the Court is required to make its own independent assessment of the evidence process as to its sufficiency and its quality: SKA v The Queen [2011] HCA 13; 243 CLR 400, the plurality, French CJ, Gummow and Kiefel JJ, reaffirming the test to be applied in determining whether the verdict was unreasonable was that stated in M and MFA.

37   In Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113], Hayne J (Gleeson CJ and Heydon J agreeing), stated:

‘It is clear that the evidence that was adduced at the trial did not all point to the appellant's guilt on this first count. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence ... That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt.’ (citation omitted)”

87. For the purpose of determining this ground, I have had regard to the entirety of the evidence referable to the Appellant, including the evidence of Officer Kiner and the mobile phone and ABC footage contained in Exhibits C and J, which I have reviewed again in Chambers since the hearing of the appeal.

88. I have kept in mind, as well, the fact that the jury had the opportunity to observe the Appellant during the trial, in conjunction with still and moving photographs said to depict the Appellant, as relied upon by the Crown.

89. I have had regard to the careful directions given to the jury by the trial Judge with respect to identification and recognition evidence (SU14-19; AB178-183). Those directions were not challenged before this Court. They constitute an appropriate reminder to this Court of its approach to assessment of evidence of this type.

90. It is the case that some criticism may be made of the evidence of Officer Kiner. He had made some mistakes with respect to names during his evidence. An examination of the transcript of his evidence indicates that he used the term “belief” or “believe” from time to time. A fair reading of his evidence, however, indicates that this was a term used by him in circumstances where, in fact, he was expressing an unqualified identification of the Appellant. His turn of phrase did not involve a form of watered-down expression, indicating an element of doubt or uncertainty in his own mind.

91. It was the evidence of Officer Kiner that he knew the Appellant and had dealings with him over a period of time whilst the Appellant had been detained at the Detention Centre since 9 September 2010. The Appellant was not a stranger to Officer Kiner.

92. This Court has not had the extended opportunity to observe the Appellant during the course of the trial which was available to the jury. The jury, of course, had an opportunity to observe Officer Kiner give evidence over a reasonably extended period.

93. However, the Court has viewed relevant extracts of the footage in Exhibits C and J, in conjunction with other evidence including that of Officer Kiner.

94. Exhibit C is of particular importance. It is good quality footage, to be distinguished from the poor quality images referred to in R v Beattie, R v Marsh and R v Drollett.

95. The person identified by Officer Kiner as the Appellant is clearly visible in Exhibit C, performing various acts as follows (using the counter number on the disk provided to the Court):

*   3:01 - The Appellant is identified - “blue top, black hat, whatever, on his head” (T712; AB59).

*   5:17 - The Appellant removes a tile from the roof (the person has a bare head and this remained so).

*   5:40 - The Appellant picks up and throws a tile into the compound.

*   6:08 - The Appellant removes a tile and hands it to Parhizkar (Officer Kiner said he saw the Appellant remove tiles and pass them to Parhizkar - T700; AB47).

*   6:27 - The Appellant hands a tile to Parhizkar.

*   6:59 - The Appellant throws a tile.

*   8:03-8:46 - The Appellant throws four objects.

*   9:10 -    The Appellant hands a tile to another man.

*   11:34   - The Appellant throws an object.

96. Having made an independent assessment of the evidence, I am satisfied, upon the whole of the evidence, that it was open to the jury to be satisfied beyond reasonable doubt that the Appellant was guilty of the offence of which he was convicted: M v The Queen [1994] HCA 63; 181 CLR 487 at 493.

97. It has not been demonstrated that a jury must, as distinct from might, have entertained a doubt about the Appellant’s guilt: Libke v The Queen [2007] HCA 30; 230 CLR 559 at 596-597 [113]; Geitz v R at [32]-[37] (cited at [86] above).

98. I would reject the third ground of appeal.

Proposed Orders

99. I propose the following orders:

1. time extended to 23 October 2014 for the Appellant to file a Notice of Appeal;

2. leave refused under Rule 4 Criminal Appeal Rules to rely upon Ground 1;

3. appeal against conviction dismissed.

100. HALL J: I have read in draft the judgment of Johnson J and I am in agreement with his Honour’s reasons in respect of Grounds 1 and 3 of the Grounds of Appeal, and the orders which his Honour has proposed.

101. In relation to Ground 3, the “unreasonable verdict” ground, having read the evidence, including in particular the evidence of Officer Kiner, and having, in particular, again examined the ABC footage concerning relevant events that occurred on 20 April 2011 at the Villawood Immigration Detention Centre (Exhibit C) in Chambers and viewed the mobile phone footage (Exhibit J), in my assessment, the evidence of Officer Kiner was reliable and cogent identification evidence in relation to the Appellant.

102. Officer Kiner made three statements in relation to the events of 20 April 2011. The statements were made on 23 April 2011, 6 June 2011 and 31 October 2012 and were tendered on the voir dire hearing though not in the trial. It was not suggested to him in the cross-examination on behalf of the Appellant that any of his abovementioned statements contained any contradictions of significance on the identification issue.

100. Officer Kiner’s evidence was that he was well-acquainted with the detainees in the Fowler Compound of the Detention Centre, and had dealt with them on a daily basis. The evidence was that he identified the Appellant on the night of 20 April 2011 on the roof of the premises. Officer Kiner said he was “one hundred per cent” certain that the Appellant was one of those on the roof. He also identified the Appellant in the ABC footage as one of the men who were throwing things from the roof and assisting others who were doing so.

101. Officer Kiner was cross-examined upon the basis that many of the detainees were of Middle Eastern appearance and had physical features in common. Whilst this was accepted, Officer Kiner on a number of occasions emphasised the extent to which he had come to know the detainees. He rejected the proposition that similarity of physical features made it difficult for him to identify those involved in the activities on the night in question. The proposition was rejected in part upon the proposition:

“… when you work with these people the amount of time I have, you get to know these people …” (T767)

105. In the course of the summing up his Honour reminded the jury that the Crown case against the Appellant was dependent upon a single witness, Officer Kiner. The trial Judge referred to the matters that counsel for the Appellant relied upon in his closing address and concessions made by Officer Kiner. These included similarities in the physical appearances of many of the detainees, many having the same or similar sounding first names or surnames, and that three detainees had the surname Haidari. The jury were reminded of the circumstances in which the identification was made including the fact that it occurred at night time in a chaotic situation. The jury were reminded of the matters that counsel had relied upon to support the possibility as a reasonable one that Officer Kiner had put the wrong name to a particular client that he observed throwing tiles from the roof. The jury were reminded that counsel for the Appellant had pointed out that Officer Kiner frequently used the expression “I believe” which, it had been submitted on behalf of the Appellant, suggested some doubt in his mind as to the correctness of the identification.

106. Finally, the jury were reminded of the submission made as to the claimed difficulty in identifying the Appellant from the ABC video and the photographs, it having been submitted that he had never directly faced towards the camera and had no distinguishing features.

107. As Johnson J has observed, no criticism was or could have been made as to the trial directions given, in particular, on the issue of identification.

108. The evidence, following close analysis, in my opinion, excluded the possibility of any reasonable doubt on the issue of identification.

109. Following a review of the evidence I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the Appellant was guilty of the offence charged.

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Decision last updated: 02 June 2015