Kamali v The Queen; Mosawi v The Queen; Shahsawari v The Queen; Bejoushin v The Queen

[2013] NSWSC 799

Supreme Court

New South Wales

Medium Neutral Citation:

Kamali v R; Mosawi v R; Shahsawari v R; Bejoushin v R [2013] NSWSC 799

Hearing dates:

On the papers

Decision date:

14 June 2013

Before:

R A Hulme J

Decision:

I grant Seyed Alireza Kamali a certificate under s 2 of the CCA Act.

I grant Sayed Ibrahim Mosawi a certificate under s 2 of the CCA Act.

The applications of Kamelledin Shahsawari and Amir Manafi Bejoushin are refused.

Catchwords:

CRIMINAL LAW - costs - offenders found not guilty by directed verdict - application for certificate under Costs in Criminal Cases Act 1967 - principles applicable - where evidence unable to support an element of the offence against one accused - where Crown case inherently weak against other accused - certificates granted
CRIMINAL LAW - costs - offenders found not guilty by jury - application for certificate under Costs in Criminal Cases Act - principles applicable - Crown case against accused not strong but not inherently weak - reasonable to have initiated prosecution - applications refused
CRIMINAL LAW - costs - certificate for costs - meaning of "relevant facts" - Costs in Criminal Cases Act 1967 - ss 3, 3A

Legislation Cited:

Costs in Criminal Cases Act 1967 (NSW)
Crimes Act 1900 (NSW)

Cases Cited:

Chalal v DPP [2008] NSWCA 152; (2008) 185 A Crim R 580
Cittidini v R [2010] NSWCCA 291
Fesja v R (1995) 82 A Crim R 253
Mordaunt v DPP [2007] NSWCA 121; (2007) 171 A Crim R 510
R v Abdollahi (No 6) [2013] NSWSC 479
R v Abdollahi (No 9) [2013] NSWSC 482
R v Abdollahi (No 10) [2013] NSWSC 483
R v Basha (1989) 39 A Crim R 337
R v Hawi & ors (No 18) [2011] NSWSC 1664
R v McFarlane (Supreme Court of NSW, Blanch J, 12 August 1994, unreported
R v Williams; ex parte Williams [1970] 1 NSWR 81

Category:

Principal judgment

Parties:

Seyed Alireza Kamali
Sayed Ibrahim Mosawi
Kamelledin Shahsawari
Amir Manafi Bejoushin
Regina

Representation:

Counsel:
Ms D Yehia SC (Kamali)
Mr L Brasch (Mosawi)
Mr P Little (Shahsawari)
Mr R Jankowski (Bejoushin)
Mr G Farmer SC with Ms J Single (Crown)
Solicitors:
Legal Aid NSW
Blair Criminal Lawyers
Archbold Legal
CBD Criminal Defence Lawyers
Commonwealth Director of Public Prosecutions

File Number(s):

2011/407683; 2012/12230; 2011/146195; 2012/12240

Judgment

1. HIS HONOUR: Seyed Alireza Kamali, Sayed Ibrahim Mosawi, Kamelledin Shahsawari and Amir Manafi Bejoushin have each applied to the Court for a certificate pursuant to the Costs in Criminal Cases Act 1967 (NSW) ("the CCC Act").

1. The applicants, and others, were accused of offences of riot and affray arising out of a disturbance that occurred at Villawood Immigration Detention Centre ("VIDC") on 20 April 2011. These are offences against ss 93B and 93C of the Crimes Act 1900 (NSW). The trial for those offences has now concluded. Messrs Kamali and Mosawi were found not guilty by directed verdict at the conclusion of the Crown case on 21 March 2013. The jury found Messrs Shahsawari and Bejoushin not guilty on 17 April 2013.

1. The applicants have consented to the application being heard on the papers. I have been provided with written submissions by Ms Yehia SC for Mr Kamali, Mr Brasch for Mr Mosawi, Mr Jankowski for Mr Bejoushin, and Mr Little for Mr Shahsawari. The Crown has also made submissions, and the applicants have provided further submissions in reply.

The legislation

1. The provisions of the CCC Act relevant to my consideration of the application are as follows:

2 Certificate may be granted

(1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may:

(a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken...

...

grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings

(2) For the avoidance of doubt, a certificate may be granted in accordance with subsection (1)(a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not.

...

3 Form of certificate

(1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate:

(a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and

(b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances

...

3A Evidence of further relevant facts may be adduced

(1) For the purpose of determining whether or not to grant a certificate under section 2 in relation to any proceedings, the reference in section 3 (1) (a) to "all the relevant facts" is a reference to:

(a) the relevant facts established in the proceedings, and

(b) any relevant facts that the defendant has, on the application for the certificate, established to the satisfaction of the Court or Judge or Magistrate, and

(c) any relevant facts that the prosecutor, or in the absence of the prosecutor, any person authorised to represent the Minister on the application, has established to the satisfaction of the Court or Judge or Magistrate that:

(i) relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made, and

(ii) were not adduced in the proceedings.

(2) Where, on an application for a certificate under section 2 in relation to any proceedings, the defendant adduces evidence to establish further relevant facts that were not established in those proceedings, the Court or Judge or Magistrate to which or to whom the application is made may:

(a) order that leave be given to the prosecutor in those proceedings or, in the absence of the prosecutor, to any person authorised to represent the Minister on the application, to comment on the evidence of those further relevant facts, and

(b) if the Court, Judge or Magistrate think it desirable to do so after taking into consideration any such comments, order that leave be given to the prosecutor or to the person representing the Minister to examine any witness giving evidence for the applicant or to adduce evidence tending to show why the certificate applied for should not be granted and adjourn the application so that that evidence may be adduced.

(3) If, in response to an application for a certificate under section 2 in relation to any proceedings, the prosecutor or, in the absence of the prosecutor, any person authorised to represent the Minister on the application adduces evidence to establish further relevant facts that were not established in those proceedings, the Court or Judge or Magistrate to which or to whom the application is made may:

(a) order that leave be given to the defendant to comment on the evidence of those relevant facts, and

(b) if the Court or Judge or Magistrate think it desirable to do so after taking into consideration any of those comments, order that leave be given to the defendant to examine any witness giving evidence for the prosecutor or that authorised person.

1. The effect of granting a certificate is to enable the applicant to apply to the Director-General of the Department of Attorney General and Justice for payment of costs incurred in the proceedings. It is then a matter for the Director-General to determine whether the making of a payment to the applicant is justified and, if so, to determine the amount of costs that should be paid (s 4).

Principles

1. The principles I am to apply in my consideration of the applications were helpfully distilled by McColl JA (Beazley and Hodgson JJA agreeing) at [36] in Mordaunt v DPP [2007] NSWCA 121; (2007) 171 A Crim R 510. Since the principles extend over seventeen paragraphs, I will not reproduce them here, save for the following two:

(e) The task of the court dealing with an application under the CCC Act is to ask the hypothetical question, whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings: Allerton [(1991) 24 NSWLR 550] (at 559 - 560); the judicial officer considering an application must find what, within the Act, were "all the relevant facts" and assume the prosecution to have been "in possession of evidence of" all of them and must then determine whether, if the prosecution had been in possession of those facts before the proceedings were instituted, "it would not have been reasonable to institute [them]; an applicant for a certificate must succeed on both the "facts issue" and the "reasonableness issue": Treasurer in & for the State of New South Wales v Wade & Dukes (Court of Appeal, 16 June 1994, unreported, BC9402561) per Mahoney JA (with whom Handley and Powell JJA agreed); Ramskogler [(1995) 82 A Crim R 128] (at 134 - 135) per Kirby P;

(f) The hypothetical question is addressed to evidence of all of the relevant facts, whether discovered before arrest or before committal (if any); after committal and before trial; during the trial; or afterwards admitted under s 3A of the CCC Act; all of the relevant facts proved, whenever they became known to the prosecution and whether or not in evidence at the trial, must then be considered by the decision-maker: Allerton (at 559 - 560); Manley per Wood CJ at CL (at [9]); the relevant facts include those relevant to the offences charged and the threshold question posed by s 3(1)(a); other facts will also be relevant and admissible going, amongst other things, to the question posed by s 3(1)(b) and to the ultimate question whether, assuming that the court is of the opinion required to be specified, it should exercise its discretion under s 2: Gwozdecky v Director of Public Prosecutions (1992) 65 A Crim R 160 (at 164 - 165) per Sheller J (with whom Mahoney JA and Hope AJA agreed);

1. As may be seen, the definition of "relevant facts" in s 3A is limited: while categorising different types of relevant facts, it does not expand upon what makes a fact "relevant". In Chalal v DPP [2008] NSWCA 152; (2008) 185 A Crim R 580, Ipp JA (Giles JA agreeing) found at [29] that the necessary construction of "relevant facts" was "facts relevant to the reasonableness of the institution of the criminal proceedings." Three types of relevant facts may be considered:

(1) The first are those relevant facts "established in the proceedings": s 3A(1)(a). Basten JA, giving separate judgment in Chalal, took "proceedings" to have the same meaning as it has in s 2(1) (at [62]). That is, the criminal proceedings instituted by the Crown and concluded by the discharge or acquittal of the applicants. I am not bound by his Honour's reasoning, but the construction is logical and I can find no other authority on point. An implication is that this category includes material established at committal and on the voir dire.

(2) The second are relevant facts established by the defendant, in conjunction with the making of the CCC Act application, to the satisfaction of the Court: s 3A(1)(b).

(3) The third type of relevant facts are those established by the Crown which "relate to evidence" in the possession of the Crown at the time the decision to institute proceedings was made and which were not adduced in the proceedings: s 3A(1)(c). These facts may include, for example, credibility evidence that supports primary evidence to be adduced at trial and may influence a decision to institute proceedings, but is not itself admissible. (For the purposes of the application, the institution of proceedings means the date of arrest or charge: Mordaunt [36(c)].)

1. In summary, I am to determine firstly what facts the hypothetical prosecutor is to be assumed to have been in possession of, and secondly whether, armed with those facts, it was not reasonable to have instituted proceedings. If the latter question is answered in the affirmative, it is within my discretion to grant a certificate under the CCC Act.

1. Section 3(1)(b) is a further test requiring consideration of the acts and omissions of the defendants. But the Crown does not contend that any act or omission of the defendants in relation to the proceedings, such as refusing to answer questions put by police officers in an interview, was not reasonable in the circumstances.

The evidence

1. The evidence in respect of each applicant varied, and I do not propose to extensively recount it in each instance. But the reader might benefit from a brief note of the main sources, especially as I may refer to a witness by name.

1. A company called "Serco" was contracted by the Australian government to run the VIDC. The evidence at trial came largely from Serco employees. These included

• Ms Susan Bishop;
• Mr Nathan Kiner;
• Mr Simon Atachparian;
• Mr Michael O'Connor; and
• Mr Wayne Carmichael.

1. A Sri Lankan detainee who was in VIDC at the time, Mr Augustus Henry-Peters, also gave evidence.

1. Each of these witnesses had made written statements describing what they saw on the evening in question. Some, in particular Ms Bishop, had made more than one statement. Ms Bishop and Messrs Kiner, Atachparian and O'Connor had made various notes and lists contemporaneously with, or soon after, the disturbance, and the Crown was also in possession of these.

1. Witnesses were cross-examined by defence counsel at committal. Further preliminary cross-examination was conducted at a pre-trial hearing between 29 January and 5 February 2013, in accordance with the principle in R v Basha (1989) 39 A Crim R 337 at 339. This was permitted in respect of witnesses not available at committal or who had since provided further statements.

1. Lastly, of course, the witnesses gave evidence at the trial in the presence of the jury.

Seyed Alireza Kamali

1. Mr Kamali was charged with one offence of riot in contravention of s 93B Crimes Act, which is in the following terms:

(1) Where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety, each of the persons using unlawful violence for the common purpose is guilty of riot and liable to imprisonment for 15 years.

(2) It is immaterial whether or not the 12 or more persons use or threaten unlawful violence simultaneously.

(3) The common purpose may be inferred from conduct.

(4) No person of reasonable firmness need actually be, or be likely to be, present at the scene.

(5) Riot may be committed in private as well as in public places.

1. The offence of riot has two central elements. The first relates to context and requires that the accused was one of 12 or more persons using or threatening unlawful violence for the common purpose. The second relates to the conduct of the accused, and requires that he or she actually used, not merely threatened, unlawful violence. See R v Hawi & ors (No 18) [2011] NSWSC 1664.

1. The Crown put its case against Mr Kamali in the following way. At about 11pm on the evening of the disturbance, some detainees were seen to be involved in activities relating to a bonfire that was lit on the soccer pitch. Mr Kamali was said to have been one of those people. He was alleged to have moved wheelie bins to the fire, and to have placed items such as toilet tissues, bed sheets and pillows upon the blaze.

Applicant's written submissions

1. Ms Yehia's submissions were directed to the Crown failure to satisfactorily establish that her client used unlawful violence. She submitted that the relevant facts for my consideration of her client's application are those described in my judgment of 21 March 2013, directing the jury to return a verdict of not guilty: R v Abdollahi (No 9) [2013] NSWSC 482. In particular, she refered to [7]-[20] of that decision. After describing the evidence adduced, my finding at [20] was:

That is the evidence upon which the Crown relies for the proposition that the accused Kamali used unlawful violence. In my view, as a matter of law, it is incapable of establishing that he did. The evidence of Mr Atachparian and [Mr] Henry-Peters is capable of establishing that Mr Kamali was present when others took items [onto] the soccer field where the items were set on fire. But it is incapable of establishing more than he was present and "running around." The evidence of Ms Bishop does not add anything. The third person she described is incapable of being regarded as the accused Kamali, as opposed to some other detainee.

1. Ms Yehia maintained that there was no act or omission of Mr Kamali that contributed to the institution of proceedings. I accept that submission. She also sought to adduce a further relevant fact in accordance with s 3A(1)(b), being a no bill application made on behalf of Mr Kamali on 7 November 2012. The no bill application does not add to the facts available to the Crown. Rather, it comments upon them. Nor is the event of an accused making a no bill application a relevant fact. Thus, I do not accept that the application must be considered under s 3A(1)(b). The criticisms it made of the Crown case were, in any event, borne out in the trial.

Crown written submissions

1. The Crown submitted that "all the relevant facts" must include evidence contained in statements and notes made by witnesses who gave evidence in the trial. It was the case that a number of witnesses did not "come up to proof" in that they were unable to recall various matters recorded in their statements.

1. The Crown submitted that it was not unreasonable to have instituted proceedings where witnesses did not give evidence at trial in accordance with their statements. The events in question involved many acts committed by many persons over several hours almost two years before, and the "Crown could not be expected to 'guess' that ... those witnesses would not come up to proof in relation to one or more of the persons they identified as being involved in the incident within the compound."

1. The Crown sought to rely upon the various witness statements and notes pursuant to s 3A(1)(c).

1. The Crown also referred, at [6] of its submissions, to the broad definition of "violence" in s 93A Crimes Act. While this point is not developed, I take it to mean that the question of whether a person had committed an act of violence was so at large that it was proper to leave any suggestion of it to the jury.

1. Lastly, the Crown pointed to the failure of defence to cross-examine one witness ([22]) or to directly challenge the evidence of two others ([28] and [32]). Specifically to Mr Kamali, it stated at [49] "there was no suggestion from Kamali that Ms Bishop would not be able to give evidence identifying him as being so involved". Whether the Crown argues that these failures to cross-examine are relevant facts, facts supporting relevant facts, or other, is not stated.

Applicant's written submissions in reply

1. Ms Yehia made two points in response to the Crown submissions. The first point is captured at [9] of her submissions in reply:

The Crown...appears to be submitting that the matter should be decided only on the evidence available to it prior to the commencement of trial, or otherwise provided in statements during the trial, on the basis that it cannot be responsible for the failure of witnesses to give evidence according to their statements. If that were the proper test, it is submitted that no hypothetical exercise would be required...

1. The applicant's second point takes issue with the Crown observations referred to at [25] above. Ms Yehia argues that the fact that defence did not cross-examine witnesses (or cross-examine on a particular point) is an irrelevant consideration for the purposes of the application.

Consideration

1. Section 3A does not in explicit terms include within the definition of "relevant facts" the additional material the Crown sought to rely upon, being witness statements and notes, some made before proceedings were instituted and some after. No point about this was taken in submissions in reply for the applicant; indeed, reference was made to the following from the judgment of McColl JA in Mordaunt (at [36(f)]):

The hypothetical question is addressed to evidence of all of the relevant facts, whether discovered before arrest or before committal (if any); after committal and before trial; during the trial; or afterwards admitted under s 3A of the CCC Act ...

1. The issue between the parties was the significance of material in witness statements and notes; not whether such material may be considered at all. Accordingly I will approach the determination of the application by Mr Kamali (and the others) with regard to both the evidence in the trial and that which was otherwise available to the prosecution.

1. This leaves for consideration the "reasonableness issue". The Crown submitted at [23]:

The Crown could not be expected to anticipate that Ms Bishop would not be able to recall the name of Kamali - during the pre-trial hearing Ms Bishop stated: 'I would have recognised him anyway'.

1. The Crown also argued, at [57]:

Notwithstanding the facts as they emerged at trial, it is submitted that it was reasonable for the Crown to institute the proceedings against Kamali.

1. As Ms Yehia correctly argued at [9] of her submissions in reply, these arguments misstate the CCC Act inquiry. The hypothetical prosecution must know that their witnesses will not come up to proof in respect of an element of the offence. It is not a question of risk, or leaving a factual dispute to the jury. In this application, possession of probative material in statements or notes must be weighed against the hypothetical knowledge that the evidence they contain will never be given.

1. I found in R v Abdollahi (No 9) that the evidence was incapable of establishing an element of the offence. The bare fact that I determined the evidence to be insufficient to ground a conviction does not entitle the present applicant to a favourable decision: R v Williams; ex parte Williams [1970] 1 NSWR 81 (at 83) per Sugarman P (with whom O'Brien J agreed; cf Manning JA (at 85)), Mordaunt at [36(k)-(m)]. But it was not the case that the evidence was meagre, or that it was unreliable: it was that it was not there.

1. I have already referred to the separate judgement of Basten JA in Chalal. In that judgment, his Honour also made the observation that the failure to establish any factual basis for a particular element of the prosecution case will tend to support a costs application. This is opposed to the situation where the evidence for a particular element is merely unsatisfactory. Fullerton J endorsed this comment (with the agreement of McClellan CJ at CL and Schmidt J) in Cittidini v R [2010] NSWCCA 291 at [8]. I agree with the proposition.

1. As an addendum, I should resolve the question raised inferentially by the Crown, and refuted by Ms Yehia, that the failure of defence to cross-examine particular witnesses before trial was relevant to the (hypothetical) decision to institute proceedings. I do not think this is a relevant fact for the purposes of the exercise required by s 3(1)(a). In as far as it falls under s 3(1)(b), it was reasonable in the circumstances. I do not see how it is the responsibility of defence counsel to point out flaws in the Crown case at an interlocutory stage, except in so far as they could be expected to preserve the best interests of the accused, which is not itself a consideration in the present judgment.

Conclusion

1. Having regard to the matters above, it is my opinion that, had the prosecution been in possession of all the relevant facts in respect of Mr Kamali, in particular the knowledge that the evidence at trial would be insufficient to establish an element of the charge, it would not have been reasonable to institute the subject proceedings. I find that to the extent that any act or omission of Mr Kamali contributed to the decision to begin or continue proceedings, it was an act or omission that was reasonable in the circumstances.

1. In as far as I possess residual discretion under s 2, I consider it appropriate to grant a certificate in this case.

Sayed Ibrahim Mosawi

1. Mr Mosawi was charged with one count of aiding and abetting a riot. In accordance with the provisions of s 345 Crimes Act, he was liable as a principle to the full penalty for the offence. He was found not guilty by a directed verdict at the close of the Crown case.

1. The case against Mr Mosawi was outlined to the jury in the Crown's opening address:

So far as the particular acts relating to him are concerned, you will hear evidence that between about, or from about 7.30pm clients on the ground were attempting to gain access to the roof. At about this time Mr Mosawi was seen encouraging others to climb on to the roof. In broken English he was yelling for everyone to get on the roof saying, "Go, go, go". He was gesturing with his hands for others to get on to the roof. At that time, or around about that time, Mr Mosawi broke the tape, that is the cordon tape, being used to mark off the cordoned area. And at that time clients on the roof were throwing tiles in the direction of staff members. So that outlines the evidence I anticipate being called against Mr Mosawi.

1. (The cordon tape had been laid out by Serco staff seeking to prevent detainees joining others who had started a protest on the roof of the adjoining building.) Mr Mosawi was also alleged to have applied force to Ms Bishop, who was standing behind the tape, in order to move her out of the way. Ms Bishop's police statement supported this version of events.

1. Ms Bishop's evidence at trial corresponded with her written statement:

Q. Any observations made of any other clients at the time of the rush of clients?

A. There was another client who pulled the barrier tape that we had to allow the other clients to get closer to the fence at the end of the Macquarie building.

Q. When you say "barrier tape", what do you mean by that?

A. It's just like a plastic tape, very similar to what the police would use, like "do not cross".

...

Q. The clients that you saw, were they on the left side of the tape as you look at the sketch prior to the rush?

A. Yes, they were behind the tape.

Q. You said the tape was broken, is that right?

A. Yes.

Q. Did you see that happen?

A. Yes.

Q. What did you see?

A. One of the clients ripped the tape.

Q. Who was that?

A. That was Mosawi, Mosawi.

Q. And at the time that Mr Mosawi ripped the tape, did you hear him say anything?

A. As he ripped the tape he pushed me to the side. There was a lot of noise and yelling going on at that time. I couldn't distinctly hear what he said.

Q. When you said, "Pushed me to the side", you indicated with your left elbow a movement with the elbow backwards, is that right?

A. As he broke the tape he pushed.

Q. In the action of breaking the tape, his arms moved to the left and right and one of them hit you, is that what you're saying?

A. Yes.

Q. Did you hear him say anything at that time or not?

A. I can't remember.

Q. There was a lot of noise going on, is that right?

A. There was a lot of noise.

Q. When you say "a lot of noise", what are you hearing?

A. Just a lot of voices yelling.

...

Q. After Mr Mosawi broke the tape and hit you with his arm, did you make any other observations of him?

A. No, I can't recall, no, he

Q. Sorry?

A. No.

1. No other witness identified Mr Mosawi as participating in the disturbance. In R v Abdollahi (No 9) at [22]-[35] I found that it would be impossible for a jury to conclude that the man Ms Bishop identified as "Mosawi" was Sayed Ibrahim Mosawi. I was led to that conclusion by the paucity of the evidence, Ms Bishop's marked difficulty in pronouncing the names of detainees, and the presence of other detainees with similar-sounding names within the compound.

Applicant's written submissions

1. In his written submissions, Mr Brasch drew attention to the above facts and others. He observed that a statement in the Crown brief by a witness who did not give evidence, Mr Jaskaran Singh, provided a reason for thinking that one Sayad Ashgar Musawi was identified as playing an active role in the protests. Mr Brasch also pointed out that Ms Bishop's responses to cross-examination in the pre-trial hearing regarding her familiarity with Mr Mosawi were equivocal at best. He also made a number of general points about the chaotic circumstances in which the identification was made.

1. In addition to the matters above, which are concerned with identification, Mr Brasch submitted that it was inherently unlikely for Mr Mosawi to be participating in the protests at all. A statement was attached to the applicant's submissions that includes material establishing that Mr Mosawi was cooperative with Serco staff and provided them with information about daily events, tensions and threats within the VIDC. I accept that these are further relevant facts under the provisions of s 3A(1)(b) and the fact of Mr Mosawi's assistance is established to my satisfaction. The evidence of Mr Carmichael given at trial also supports these facts.

Crown submissions

1. The Crown relies upon the same general argument as it applied to the application of Mr Kamali. That is, it is not unreasonable to institute proceedings where, in the event, a witness does not give the evidence he or she is expected to give.

1. The Crown pointed out that it also had access to contemporaneous, albeit brief, notes made by Messrs Kiner, Atachparian and O'Connor that supported Ms Bishop's memory of events. Ms Bishop's own handwritten notes were consistent with her recollection.

1. The Crown made reference to a number of failures by Mr Mosawi's counsel to cross-examine. It states at [51]:

In relation to Mosawi, the Crown notes that at no time prior to Ms Bishop giving her evidence, including at the Basha Inquiry, did Mosawi suggest to her that she would not be able to recall his involvement in the disturbance. As noted in the applicant's submissions (p 15), Ms Bishop knew Mosawi by sight, but not directly by name.

1. As with its submissions in relation to Mr Kamali, the basis upon which I should consider this was left unarticulated.

1. The Crown responded to the further relevant facts submitted by Mr Brasch by casting them in the following light, at [60]:

Viewed objectively, these facts show that Mosawi was aware of the likelihood of a disturbance prior to it happening. Mr Carmichael's opinion of Mosawi's statements, and his opinion as to the reasons for raising it with him, is irrelevant to such a consideration. Viewed objectively, the material supported the institution of proceedings against Mosawi in that it revealed that he had prior knowledge of the likelihood of a protest against continuing detention, especially when coupled with the statement of Ms Bishop and considered in light of the notes made by her and the other three officers.

Applicant's submissions in reply

1. Mr Brasch argued that it was inconsistent for the Crown to be relying upon statements and notes made by witnesses in support of its resistance to the application when in may be inferred that the Crown accepted that such material was inadmissible at trial.

1. In response to the argument that a failure of a witness to come up to proof does not make a prosecution unreasonable, Mr Brasch pointed out, first, that the CCC Act test does not involve a criticism of the Crown. It is, after all, an artificial exercise. Second, he argued that evidentiary problems that arise during the course of the trial and the evidence actually adduced at the trial are pertinent to the CCC Act assessment.

1. Like Ms Yehia (see [27]), Mr Brasch took issue with the Crown's inference that failure to cross-examine particular witnesses should somehow sound against his application.

1. Finally, the submissions in reply contest the Crown's use of the additional relevant facts relating to Mr Mosawi's assistance to Serco staff. Mr Brasch reasserts his reason for introducing the evidence: that Mr Mosawi's actions were not consistent with those of a person likely to support the disturbance.

Consideration

1. I accept that the further additional facts relied upon by Mr Brasch indicate that the Crown case was more unlikely. I do not accept the use the Crown makes of those facts as providing material that would make a prosecution, as perhaps opposed to an investigation, more reasonable. It is reasonable to expect that the prosecution should make a proper evaluation of contradictory evidence, even where there is sufficient material to establish a prima facie case: Mordaunt at [36(i)]. Having said that, however, I do not believe that the additional material relied upon by the applicant is of any more than marginal significance.

1. I reject any suggestion that the failure to cross-examine is a relevant consideration.

1. Regardless of the additional material tending to support Mr Mosawi's involvement, the Crown's case at trial was reliant upon the brief evidence of a single witness where, as it turned out, the ability of that witness to identify the accused accurately was extremely suspect. Facts that emerged at trial, such as Ms Bishop's difficulty with the pronunciation of names, would have been relevant to the institution of proceedings. This is particularly so given that she did not describe Mr Mosawi's appearance and only referred to him by his family name in light of the fact that there were two other detainees with similar sounding and spelt family names. The circumstances in which Mr Mosawi was said to have committed the offence were so fleeting that the Crown would have been expected to be cautious about instituting proceedings where the identification was not sound. Here, it was anything but.

1. I do not think that this was a case where the question of guilt was (or would have been) decided upon credibility or "word against word". The Crown case was inherently weak: see Mordaunt at [36(m)].

Conclusion

1. Having regard to the matters above, it is my opinion that, had the prosecution been in possession of all the relevant facts in respect of Mr Mosawi, in particular the inherent weaknesses in the evidence of Mr Bishop, it would not have been reasonable to institute the subject proceedings. I find that to the extent that any act or omission of Mr Mosawi contributed to the decision to begin or continue proceedings, it was an act or omission that was reasonable in the circumstances.

1. In as far as I possess residual discretion under s 2, I consider it appropriate to grant a certificate in this case.

Kamelledin Shahsawari

1. Mr Shahsawari was charged with one count of riot, and of affray in the alternative (s 93C Crimes Act). The jury found him not guilty of both charges on 17 April 2013.

1. The Crown case against Mr Shahsawari was that at some time around 10:30pm on the evening of the disturbance, he and three other detainees let off fire extinguishers in a riotous fashion. Ms Bishop was the only witness able to support the case against Mr Shahawari.

1. Mr Little made an application for a directed verdict of not guilty a week after the conclusion of the Crown case. Unlike the applications for Messrs Kamali and Mosawi, I did not conclude that there was insufficient evidence to base of verdict of guilty against Mr Shahsawari. In my judgment I stated my view that there was "just enough" to make out the elements of the charge: R v Abdollahi (No 10) [2013] NSWSC 483 at [3]-[4].

Applicant's written submissions

1. Mr Little made the following submission at pp 10-11:

It is submitted that "all the relevant facts" in the proceedings against the accused were

• Susan Bishop's witness statements (tendered on pre-trial applications) as qualified by her evidence the facts or material outlined in the sworn evidence of Susan Bishop

• Susan Bishop's evidence both as to the alleged actions of the accused and her recognition evidence.

• the material in the subpoenaed documents produced by QBE Insurance Ltd particularly that part of the psychiatrist's report dealing with memory difficulties including not being able to name the Prime Minister. These require tendering on the application, I request they be treated as tendered from the papers available in Court.

• The accused's ERISP. I request the Crown either produce a copy to tender or concede that the accused exercised his right to silence.

• The balance of the evidence relating to fire extinguishers.

[emphasis in original]

1. I take the QBE Insurance Ltd document and the ERISP to be relied upon under s 3A(1)(b).

1. Mr Little submitted that Ms Bishop's recognition of Mr Shahsawari was unreliable. He submitted that it was lacking in detail as to his appearance and identifying features. No other witness identified Mr Shahsawari as being involved with the fire extinguishers, and Mr Kiner gave evidence that contradicted Ms Bishop. Mr Kiner identified another detainee, Al Halfi, where Ms Bishop had nominated Mr Shahsawari.

Crown written submissions

1. The Crown put a different argument in relation to the applicants who were found not guilty by the deliberation of a jury, and not by directed verdict. In the case of Mr Shahsawari (and, as will be seen, Mr Bejoushin) it was not the situation that the relevant witnesses could not "come up to proof". The Crown argued, at [15]:

The submissions made on behalf of Shahsawari and Bejoushin fail to appreciate the significance of the decision of the Court to allow the jury to determine the question of their guilt. The Crown submits that a conclusion that the matter was for the jury to determine provides strong support for the view that the decisions to institute proceedings against Shahsawari were reasonable. Whether Shahsawari or Bejoushin were guilty, or not, was properly left for the jury to determine.

1. That is to say, the Crown relies upon my decisions to allow Ms Bishop to give evidence despite objections as to its accuracy (R v Abdollahi (No 6) [2013] NSWSC 479) and to refuse a directed verdict in respect of Mr Shahsawari (R v Abdollahi (No 10)), as determinative of the question of reasonableness. The Crown recognised that the case against Mr Shahsawari was not strong, but refers to Mordaunt at [36(m)]:

...matters of judgment concerning credibility, demeanour and alike are likely to fall on the other side for the line of unreasonableness, being matters quintessentially within the realm of the ultimate fact-finder whether is be judge or jury.

1. As with the other applications, the Crown pointed out that it also had access to contemporaneous notes made by Messrs Kiner, Atachparian and O'Connor that supported Ms Bishop's memory of events. Ms Bishop's own handwritten notes were consistent with her recollection.

Applicant's written submissions in reply

1. Mr Little cavilled with the Crown's statement of the CCC Act test, at [4], as "whether it would have been reasonable to charge". He submitted that the correct test, "institute proceedings", sets a higher bar than "charge". He referred to Mordaunt at [36(h)], particularly the statement that the relevant test is not whether there is reasonable suspicion that might justify an arrest.

1. The submissions in reply contain a novel argument in response to the Crown's reliance upon notes taken by Messrs Kiner, Atachparian and O'Connor. Mr Little argued, at p 2, in relation to the expression in s 3(1)(a) of being in "possession of evidence of all the relevant facts":

Evidence means evidence. There never was evidence (admissible) of the contents of the so called list [compiled by Messrs Kiner, Atachparian and O'Connor]. On the voir dire there was evidence of comments being contributed by others (which never made any statement of any witness).

The list did not contain admissible evidence nor was there ever any qualification by the Crown to indicate it was more than inadmissible.

In these circumstances it was never and could never be reasonable to treat it as "evidence of all" (or any)" relevant facts".

1. It will be recalled that Mr Little, in his principle submissions, described as "relevant facts" at least two items that were never admitted as evidence. The concept of "relevant facts" as defined in s 3A is not qualified by any requirement that it is restricted to evidence admissible in the proceedings. And reliance is placed upon material in support of the application with no apparent concern for its admissibility and the fact that it was not evidence in the trial.

1. Mr Little submitted that there can be no speculation as to why the jury acquitted. He submitted that they must have not accepted the evidence of Ms Bishop.

Consideration

1. The points raised in the submissions in reply may be dealt with briefly.

1. I accept that the test for whether a prosecution was unreasonable is not the same test that applies to arrest. But the submission goes nowhere. And the Crown is plainly correct in referring to the time of charge as the time when the decision to institute proceedings has been made: Mordaunt [36(c)].

1. I do not accept the submission that relevant facts must be evidence adduced at trial. That is not the sense with which "evidence" is used in the CCC Act. If it was, ss 3A(1)(b) and (c) could not operate. The contents of the notes made by Messrs Kiner, Atachparian and O'Connor have been established in the proceedings to my satisfaction. So too have the fact that the applicant exercised his right to silence, and that there was reason to believe that Ms Bishop's memory had been adversely affected by the traumatic events of the disturbance at VIDC. That much was plain from her evidence alone; there is nothing to be gained by recourse to other material.

1. I must determine whether it was reasonable for the prosecution, being in possession of all these facts, to have instituted proceedings.

1. Only Ms Bishop was able to name Mr Shahsawari as being involved with the discharge of fire extinguishers. But while she had some difficulty with the pronunciation of the name "Shahsawari" (T 1096), there was no evidence establishing that she could be accidentally referring to another detainee with a similar name (cf Mosawi). She gave evidence that she knew him by name from her day-to-day duties at VIDC and from conversations with him (T 1096). She recalled him being "a little tall" and "taller than the majority", and having prominent cheekbones. I observed Mr Shahsawari in the dock for the length of the trial, and the latter was, in particular, an obvious feature that the jury would be able to evaluate for themselves. Mr Little submitted, at p 23 of his principle submissions, that "the comment 'he's taller than the majority' is prima facie inconsistent with 'a little tall'". I respectfully disagree.

1. Another feature that distinguishes this evidence from that regarding Mr Mosawi is that it related to an activity observed from a safe distance that went on for more than a fleeting moment. The question of Ms Bishop's memory is not relevant to the evidence against Mr Shahsawari. The evidence she gave at trial was consistent with her contemporaneous notes and statements.

1. Having regard only to Ms Bishop's evidence, I would not be inclined to view the decision to prosecute as unreasonable. Her evidence was of such a quality that a verdict of guilty could have been entered. There was a prima facie case against Mr Shahsawari that was sufficient to go to a jury. But that does not determine the CCC Act question. My decisions in R v Abdollahi (No 6) and R v Abdollahi (No 10) are not conclusive: R v McFarlane (Supreme Court of NSW, Blanch J, 12 August 1994, unreported), Fesja v R (1995) 82 A Crim R 253.

1. The evidence of Mr Kiner is troublesome. As I have said before, the Crown is expected to make an evaluation of contradictory evidence. Ms Bishop and Mr Kiner each saw four men discharging fire extinguishers in the evening. Their evidence was the same in identifying three of the men. They differed as to whether the fourth person was Mr Shahsawari or the detainee Al Halfi. It was not conclusively established that they were referring to the same event, but it was an available inference.

1. The contradictory evidence of Mr Kiner created a weakness in the Crown case. But it was not one that was outside of the ability of the jury to evaluate. It was not, adopting Mordaunt at [36(m)], a conflict of important expert evidence. It was "word against word" between two lay witnesses, neither of whom was so substantially lacking in credit as to render it unreasonable for the jury to be the ultimate judge.

Conclusion

1. Having regard to the matters above, it is my opinion that, had the prosecution been in possession of all the relevant facts in respect of Mr Shahsawari it would not have been unreasonable to institute the subject proceedings.

Amir Manafi Bejoushin

1. Mr Bejoushin was charged with one count of riot. The jury found him not guilty on 17 April 2013.

1. The Crown case against Mr Bejoushin was that at about 11pm on the evening of the disturbance, he and others were observed to be pulling wheelie bins onto the soccer field where a bonfire was being lit. It was not alleged that he had actually ignited the fire.

1. Ms Bishop gave evidence of having seen Mr Bejoushin pull bins from the laundry building towards the fire on the soccer pitch. Mr Atachparian said that he had seen Mr Bejoushin pulling bins over from the Clarence Building, which is near the laundry. He also said that he had seen Mr Bejoushin run through the laundry trying to pick up items there.

Applicant's written submissions

1. Mr Jankowski pointed to a number of weaknesses in the evidence of Mr Bishop and Mr Atachparian as it related to Mr Bejoushin. They are many, and need not be repeated in their entirety here. He observed that Mr O'Connor gave evidence that he knew Mr Bejoushin, and that he was not one of the persons he observed pulling bins.

1. Mr Jankowski sought to adduce a further relevant fact in accordance with s 3A(1)(b), being a no bill application made on behalf of Mr Bejoushin in October 2012. I decline to consider this for the same reason I declined Ms Yehia's similar application at [20] above. I accept such material might be relevant in some cases to the exercise required by s 3(1)(b), but there is no serious contest on that question here.

1. The conclusion to the applicant's submission, at [37], is that it was unreasonable to have instituted proceedings having regard to the following:

• The internal inconsistencies in the evidence of both Ms Bishop and Mr Atchaparian [sic].

• The internal inconsistencies between Ms Bishop, Mr Atchaparian [sic] and Mr O'Conner.

• The inadequate and unreliable nature of the identification/recognition evidence of Mr Bejoushin by both Ms Bishop and Mr Atachaparian [sic].

• The nature and quality of the character evidence of both Mr Patten and Ms Binns.

• The absence of any evidence from numerous other SERCO Officers identifying Mr Bejoushin doing anything on the night, even though those witnesses gave evidence about observing the movement of wheelie bins.

• The lack of any corroboration of Ms Bishop's account of wheelie bins being moved.

• There was no act or omission of Mr Bejoushin that contributed, or might have contributed, to the institution or continuation of the proceedings...

Crown written submissions

1. The Crown's argument in relation to Mr Shahsawari, reproduced at [66]-[68] above, applies to Mr Bejoushin. (But it is mistaken in implying that Mr Bejoushin made an application for a directed verdict: he did not.)

1. The Crown did not dispute the matters raised by Mr Jankowski in relation to the evidence of Ms Bishop and Mr Atachparian. It did, however, argue that Ms Bishop and Mr Atachparian were clear in their identification of Mr Bejoushin as being engaged in the movement of rubbish bins.

Applicant's submissions in reply

1. Mr Jankowski highlighted an important weakness in Ms Bishop's evidence regarding Mr Bejoushin. She had not identified him as being involved in any statement until 7 February 2012, ten months since the events at VIDC. At trial she did not recall Mr Bejoushin's involvement until the second day of her evidence.

1. In reply to the Crown reliance on [36(m)] of Mordaunt as a cure for the weakness of its case at trial against Mr Bejoushin, Mr Jankowski took issue, at [10]:

with the proposition that the evidence must substantially lack credibility before it can be said that the proceedings were not reasonably instituted. While the main issue at trial was the accuracy of the purported recognition/identification of Mr Bejoushin, where such evidence lacks cogency and both internal and external consistency, the reasonableness of instituting proceedings remains a live issue. This is particularly the case where the difficulties with the reliability and accuracy of both Ms Bishop and Mr Atachparian would have been known well in advance of them giving evidence at trial.

Consideration

1. I accept that the case against Mr Bejoushin was not strong. But the reliability of Ms Bishop's and Mr Atachparian's recall was the subject of cross-examination, and could be evaluated by a jury.

1. Mr O'Connor's evidence did not support that of Ms Bishop and Mr Atachparian, but it did not refer to so discrete an event with a limited number of participants as Mr Shahsawari and the fire extinguishers. It does create a conflict, but on a lesser scale.

1. I agree with the submissions of the Crown that the evidence required a judgment concerning the accuracy of the identification by Ms Bishop and Mr Atachparian. It did not involve inherent weakness in the sense meant by the CCC Act or Mordaunt. In light of all the circumstances of the disturbance at the VIDC on the night in question, it was quite understandable that there would be variations in the recollections of witnesses. The Crown case concerning Mr Bejoushin relied upon two witnesses who each, and independently, described his involvement in the same type of activity. It was quintessentially a matter for the tribunal of fact to determine the significance of the differences in their accounts.

Conclusion

1. Having regard to the matters above, it is my opinion that, had the prosecution been in possession of all the relevant facts in respect of Mr Bejoushin it would not have been unreasonable to institute the subject proceedings.

Orders

1. I grant Seyed Alireza Kamali a certificate under s 2 of the CCC Act.

1. I grant Sayed Ibrahim Mosawi a certificate under s 2 of the CCC Act.

1. The applications of Kamelledin Shahsawari and Amir Manafi Bejoushin are refused.

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Decision last updated: 18 June 2013