R v Abdaly; R v Hosseinishoja (No 4)

[2022] NSWSC 1529

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Abdaly; R v Hosseinishoja (No 4) [2022] NSWSC 1529

Hearing dates:

25-31 October, 1-7 November 2022

Date of orders:

07 November 2022

Decision date:

07 November 2022

Jurisdiction:

Common Law - Criminal

Before:

Hamill J

Decision:

(1) Pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), I direct the following witness are to give evidence by audio visual link:

(a)   RS 1869816;

(b)   RS 1546093;

(c)   RS 1521670;

(d)   RS 1777888;

(e)   Under Cover Operative Aaron (UCO Aaron);

(f)    Dr Sudipto Pal;

(g)   Nicholas Walker; and

(h)   Gail Rogers (Muscat).

(2) I refuse the application for a direction under s 5B of the Evidence (Audio and Visual Links) Act that Witness A give evidence by audio visual link.

Catchwords:

CRIMINAL LAW – evidence – evidence by audio visual link – application by prosecutor for AVL direction – where application opposed – trial by judge alone – relevant considerations – burden of persuasion – interests of the administration of justice – where witness critical to proof of guilt – witness criminally concerned in commission of crime – credibility – demeanour – confidential evidence tendered by police – security and safety of witness – resources issues – safety of the public – public interest in encouraging witnesses to come forward – difficult decision – powerful factors on both sides – application for direction refused

Legislation Cited:

Criminal Procedure Act1986 (NSW), s 132

Evidence (Audio and Visual Links) Act 1998 (NSW), s 5B

Cases Cited:

Antov v Bokan (No 2) (2019) 101 NSWLR 142; [2019] NSWCA 250

ASIC v Rich [2004] NSWSC 467; (2004) 49 ACSR 578

Hodgson v R [2022] NSWCCA 72

Hughes v Whittens Group Pty Ltd [2017] NSWSC 329

KN v R (2017) 95 NSWLR 767; [2017] NSWCCA 249

R v Al Batat & Ors(No 1) [2020] NSWSC 967

State of NSW v Ceissman [2018] NSWSC 508

Category:

Procedural rulings

Parties:

Rex (Plaintiff)
Sayed Anoush Abdaly (Defendant)
Seyed Amirmohammad Hosseinishoja (Defendant)

Representation:

Counsel:
D Patch (Rex)
M Cunneen SC (Abdaly)
G Brady SC with M Ayache (Hosseinishoja)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Rex)
Tohi Lawyers (Abdaly)
OneGroup Legal (Hosseinishoja)

File Number(s):

2020/306132; 2020/306616

Publication restriction:

Except for publication on legal websites, there is an interim non-publication order over the names of the two accused and Abuzar Sultani

Judgment

1. By notice of motion dated 24 October 2022, [1] the Director of Public Prosecutions (DPP) sought orders pursuant to s 5B of the Evidence (Audio and Visual Links) Act 1998 (NSW) (the Act) in relation to the following ten witnesses, the first seven of whom are referred to by pseudonyms:

   1. MFI 24.

1. Witness A;

2. RS 1869816;

3. RS 1546093;

4. RS 1521670;

5. RS 1777888;

6. “Joseph Read”;

7. Under Cover Operative Aaron (UCO Aaron);

8. Dr Sudipto Pal;

9. Nicholas Walker; and

10. Gail Rogers (Muscat).

2. The motion ran concurrently with several other pre-trial applications including a motion by the NSW Police Commissioner (the police or the Commissioner) seeking various “protective” orders relating to the same witnesses (or some of them), [2] a contested application for a “trial by judge order” under s 132 of the Criminal Procedure Act1986 (NSW) (the CP Act), a belated and time-consuming objection to evidence the prosecution sought to lead at the trial concerning what was called “criminal group” evidence, and several motions concerned with subpoenas issued by various parties. Some of these issues were inter-related and the outcome of some impacted on the position the parties took on the present motion.

   2. MFI 11.

3. The two accused, who are charged with murder, opposed some of the AVL orders but did not oppose others. This has an impact on the “test” to be applied in determining the application where the burden of persuasion lies. By the time of delivering this judgment, because of other orders made, the only area of controversy concerns Witness A.

4. The police were represented by counsel and played a proactive role in the tendering of evidence (most of it confidential and not seen by the parties to the criminal proceedings) and making submissions. The police have a significant interest in the outcome of the application because they are charged with the responsibility of protecting the witnesses and have information relevant to the application which is not in the possession of the parties.

The evidence

5. The DPP read an affidavit of the solicitor with carriage of the prosecution. [3] This set out, in general terms, the circumstances pertaining to each of the witnesses and why the application was made in each case.

   3. MFI 24.

6. Towards the end of the pre-trial hearing, Mr Hosseinishoja tendered redacted copies of two email chains between the police officer in charge and Witness A. [4] These documents had been produced under subpoena in that redacted form.

   4. Ex VD-7 and VD-8.

7. The police provided the following evidence:

1. An “open affidavit” of Assistant Commissioner Scott Cook sworn 21 October 2022. [5]

   5. MFI 12.

2. A confidential affidavit of Mr Cook sworn the same date. [6]

3. A supplementary confidential affidavit of Assistant Commissioner Scott Whyte sworn 26 October 2022. [7]

4. A confidential affidavit of Detective Senior Constable Anthony Moore sworn 28 October 2022. [8]

5. Unredacted (and confidential) copies of the email chain (Ex VD-8 and VD 9) tendered by Mr Hosseinishoja. [9]

6. A confidential affidavit of Assistant Commissioner Stacey Maloney sworn 4 November 2022. [10]

   6. MFI C-1.

   7. MFI C-2.

   8. MFI C-3.

   9. Ex VD-C9.

   10. MFI C-4.

8. Each of the confidential documents was received without objection and contained in a sealed envelope marked “confidential”. Each will be returned to the Crown Solicitor’s Office (“CSO”) on publication of this judgment or, if there are residual issues to which they are relevant, upon determination of those issues. [11]

   11. The confidential documents were returned to the CSO in court on 9 November 2022: Tcpt (9/11/22) p 266.

Written submissions

9. Counsel for the police handed up written submissions prepared by a different counsel (Mr Lee) and used when the matter was before Fagan J in 2021. [12] In an email to my Associate, the CSO indicated that I was invited to read paragraphs 4-17, 21, 22(d), 28, 30-32, 34-35 and 38 of those written submissions. The submissions were not addressed specifically to the current issues or the DPP’s application to call the witnesses via AVL. However, they covered those matters generally and provided a helpful survey of the law relating to the Court’s statutory and inherent powers to make various protective orders of the kind now under consideration and relevant considerations that guide the exercise of those powers. The submissions emphasised the public interest in making orders protecting the security of informant witnesses both for those individual witnesses but also to maintain the flow of information from such witnesses.

   12. MFI 14.

Legislation

10. The relevant legislative provisions are as follows:

5B TAKING EVIDENCE AND SUBMISSIONS FROM OUTSIDE COURTROOM OR PLACE WHERE COURT IS SITTING--PROCEEDINGS GENERALLY

(1) Subject to any applicable rules of court, subsection (2A) and section 5BAA, a NSW court may, either on its own motion in, or on the application of a party to, a proceeding before the court, direct that a person (whether or not a party to the proceeding) give evidence or make a submission to the court by audio link or audio visual link from any place within or outside New South Wales, including a place outside Australia, other than the courtroom or other place at which the court is sitting.

(2) The court must not make such a direction if--

(a) the necessary facilities are unavailable or cannot reasonably be made available, or

(b) the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or

(c) the court is satisfied that the direction would be unfair to any party to the proceeding, or

(d) the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission.

(2A) A court must not make a direction under this Part in relation to the giving of evidence or making of a submission by audio visual link by any accused detainee in any criminal proceeding in relation to the detainee concerning an offence alleged to have been committed by the detainee. However, this subsection does not prevent the making of such a direction in relation to an accused detainee in any other proceeding to which this Part applies.

Note: Part 1B of this Act contains provisions with respect to the appearance of accused detainees who are in custody in criminal proceedings.

(3) In a proceeding in which a party opposes the making of a direction for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place within New South Wales other than the courtroom or other place where the court is sitting, the court must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so.

Uncontested and redundant orders

11. Part way through the pre-trial hearing it was determined that “Joseph Read” would not be called to give evidence. Accordingly, the DPP no longer seeks an AVL order in relation to that witness.

Witnesses in relation to whom no objection was ever taken

12. Neither accused objected, at any stage, to orders relating to UCO Aaron, Dr Pal, Nicholas Walker or Gail Rogers (Muscat). The affidavit of the DPP solicitor explains the circumstances relating to each of those witnesses. One is an undercover police officer and one is an expert medical witness (a neurosurgeon) now based in Canberra. The other two are retired police officers who now work for the Australia Border Force and are based outside of New South Wales.

13. In each case, based on the Prosecutor’s statements to the Court and by reference to the paragraphs in sub-s (2) of the Act:

1. The necessary facilities are available.

2. I am not satisfied that the evidence can more conveniently be taken in the courtroom.

3. I am not satisfied that the taking of the evidence in this way would be unfair to the accused.

4. I am satisfied the witnesses will give the evidence.

14. Accordingly, I will make the orders sought in respect of those four witnesses.

Witnesses in relation to whom objection was not taken if the trial was to be held by judge alone

15. The accused initially opposed the making of an AVL order or direction in relation to the four “registered source” witnesses (who can be identified by reference to the acronym “RS” at the beginning of their pseudonyms in the notice of motion). However, that objection was only taken if the trial was to be conducted with a jury and was, therefore, contingent on the decision I made in relation to the application for a judge alone trial. I have now decided that the trial will be by judge alone. Having made that order, I confirmed that neither accused opposed the making of a direction that these witnesses give evidence by AVL.

16. Accordingly, in the absence of opposition, the provision in sub-s (3) of the Act does not arise. However, I must still consider the prohibition on giving the direction if any of the matters in sub-s (2) arise.

17. There is a great deal of evidence in the confidential material tendered by the police that supports the making of AVL orders. There is also evidence in the open affidavits that supports giving the directions. Two of the witnesses reside interstate and all have provided evidence under pseudonyms and are “registered source” witnesses.

18. I am told, and accept, that the facilities are available: s 5B(2)(a).

19. I am not satisfied that the evidence can “more conveniently” be given in the courtroom: s 5B(2)(b).

20. While I have been told that there are issues of credibility in relation to some or all of these witnesses, it seems that the critical parts of their evidence are not really in dispute. I confess that, at this stage, I am not fully conversant with the controversies that will arise in relation to the evidence expected to be given by these witnesses. I am reliant on counsel for both sides. Neither accused, each represented by Senior Counsel, submitted that it would be unfair for the direction to be given and, as I have said, any opposition was contingent upon the trial being determined by a jury. Accordingly, I am not satisfied that making a direction would be unfair to the accused: s 5B(2)(c).

21. Finally, s 5B(2)(d) does not arise on the material. It is expected the witnesses will give the evidence.

22. While the power to make the direction is discretionary (“a NSW court may make an order”), the evidence in the confidential material strongly militates in favour of the making of an order.

23. Accordingly, I will direct that each of the “Registered Source” witnesses gives evidence by AVL.

Witness A

24. Once the order for a trial by judge alone was made, Senior Counsel for Mr Hosseinishoja indicated that, contrary to the position that had been taken throughout the pre-trial hearing, there was no opposition to a direction under s 5B that Witness A give evidence by AVL from a place other than the courtroom. The withdrawal of opposition was based on my decision that the trial is to be conducted by judge sitting without a jury.

25. However, Ms Cunneen SC, appearing for Mr Abdaly, maintained her client’s opposition to a direction being given and made brief submissions explaining that position.

The importance of Witness A’s evidence and the assessment of his credibility

26. Emphasis was placed on the fact that the evidence of Witness A will be crucial to the prosecution case against her client. No other witness is expected to give direct evidence that Mr Abdaly was part of the group summoned by Mr Sultani and which committed the bashing of Mr Srbin. Ms Cunneen also noted that Witness A is expected to give evidence that Mr Abdaly was armed with a baseball bat at a time proximate to the bashing.

27. The Prosecutor acknowledged the importance of Witness A’s evidence:

“It is Witness A and only Witness A who has the accused as members of the group. There is a description from a bystander that is consistent with the appearance of one of the accused, but it’s Witness A that has Michael, or Moey, and Zak, which is [Mr] Hosseinishoja and [Mr] Abdaly, as members of the group.” [13]

13. Tcpt, 7 November 2022, p 235.

28. It seems that if Witness A’s evidence is accepted to the requisite criminal standard, the accused will likely be found guilty of homicide, and probably murder. If it is not accepted, the accused is likely to be acquitted. In other words, an assessment of Witness A’s credibility is crucial to the outcome of the trial.

29. Ms Cunneen submitted: [14]

    14. Ibid, pp 242-243.

“So on, as Mr Hill mentioned, the spectrum of significance of testimony drawn from the British authorities, this is an area of evidence which is of the highest significance on the spectrum. And because of that importance - in fact, we know that witness A has been brought, or will be brought, from some country on the other side of the world; he will be in Australia - your Honour is entitled to be able to view the entirety of his body language while he is being suggested to, what we respect in the criminal justice system as the best way of testing the truth of an essential witness. And that is for him to give evidence in Court, in the presence of the tribunal of fact, so that not just his face, but his hands and his physical demeanour, while being cross examined, can be evaluated by the tribunal of fact, however experienced the tribunal of fact is at performing that task of evaluating credit from a person who is himself a member of the criminal element.

…

If there was no witness A, Mr Srbin would still be alive even. So he is very much a part of what happened and that is why he served the time he did. He is criminally involved in this. There are obvious reasons not only for him to be untruthful generally but to be untruthful and to perhaps minimise his own role in any of this situation.

…

True it is that your Honour is apprised of matters to do with security that the defence are not privy to, but at least it is only one witness, but he is the most important witness in this case, your Honour. His credit is essential.

…

This is not just a case where the accused men may be liable to serve a moderate term in prison because of the nature of the crime. This is a capital crime. So they are in jeopardy of, on the strength of the evidence of witness A, serving the rest of their lives in prison.

…

And because of the importance of that, being a murder trial not for example a sexual assault trial, but a murder trial - with one witness, we would submit in the strongest terms that that is the highest on the spectrum of significance and that your Honour is entitled, or the trial judge is entitled, being the arbiter of the facts, to have the best possible opportunity to see this witness in person. To see all of him, see how he takes to his examination and cross examination, even in walking in and out of the courtroom, not just conveniently switched off at any time of his choosing, so that the whole panoply of a witness's demeanour may be before your Honour in deciding this important case.”

30. These are powerful submissions.

31. In Antov v Bokan (No 2) (2019) 101 NSWLR 142; [2019] NSWCA 250, Bell P (as his Honour then was and with whom Bathurst CJ and Payne JA agreed) said:

“[50] Constraining a party to cross-examining a witness by video link will not always, but may sometimes, involve a degree of unfairness to that party, depending on all the circumstances of the case. This is why an assessment of unfairness necessarily involves a judgment of an evaluative character. Relevant circumstances may include the importance of the witness, whether his or her credit was in issue, the nature and extent of documents involved, whether translation of documents or oral evidence is necessary, time differences in the other forum and the quality of technology. In certain cases, depriving the cross-examiner of the ‘reassurance that the gravity and immediacy of the moment, and of the supervising presence of the judge, are not lost on the witness and the cross-examination is not thereby rendered any less effective, to the possible prejudice of the cross-examining party’ may also work relevant unfairness: see Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152; [2009] FCA 1306 at [78].”

32. I have previously noted the tension between that decision and the decision of the Court of Criminal Appeal in KN v R (2017) 95 NSWLR 767; [2017] NSWCCA 249: R v Al Batat & Ors (No 1) [2020] NSWSC 967 at [23]-[24].

33. In KN v R the Court was dealing with an application for a stay pending a proposed interlocutory appeal from the decision of a District Court judge making a direction for a complainant to give evidence by AVL. The Court made the following observations:

“[66] The point made in relation to assessing the credibility of the witnesses must also be rejected. The use of AVL for the purposes of taking evidence is well-established and there is a substantial body of authority on the exercise of the court’s discretion to permit its use for that purpose. As the cases make clear, subject to the requirements of the legislation, the decision to permit evidence to be given by AVL is a matter for the primary judge’s discretion in the circumstances of a particular case: see Kirby v Centro Properties Limited [2012] FCA 60; 288 ALR 601 at [11] per Gordon J; ASIC v Rich [2004] NSWSC 467; 49 ACSR 578 at [16] per Austin J.

[67] While it has sometimes been acknowledged that the question whether the credibility of the witness is in issue might be relevant to the decision to use AVL: see Kirby v Centro Properties Limited at [10]; ASIC v Rich at [27]-[28] and the cases cited therein; R v Qaumi and Ors (No 9) [2016] NSWSC 171 at [9] per Hamill J and Hughes v Whittens Group Pty Ltd [2017] NSWSC 329 at [21] per Button J, there are numerous decisions where it has been held that the demeanour of a witness could be adequately assessed by AVL: see ASIC v Rich at [24]-[26]; R v Wilkie, R v Burroughs, R v Mainprize (2005) 193 FLR 291; [2005] NSWSC 794 at [31]-[32] per Howie J; R v Lodhi [2006] NSWSC 587; (2006) 163 A Crim R 488 at [65] per Whealy J and the cases cited therein.

[68] It is apparent that, notwithstanding that credibility is in issue and the testimony of the complainant and the complainant witness is of central importance to the case and is expected to be of substantial duration, her Honour was satisfied that the jury could adequately assess the witnesses’ evidence given by AVL. It is perhaps worth noting that there was nothing in her Honour’s rulings or her reasons to indicate that her Honour would not manage the trial in such a way so as to ensure that the applicant would have a fair trial.”

34. As I did in R v Al Batat (No 1), I prefer to follow the more recent decision of the Court of Appeal. That is, I am satisfied that where an important witness is to be subject to a credibility attack, it is preferable that the witness gives evidence in the courtroom. This approach accords with observations made in other cases decided at first instance: ASIC v Rich [2004] NSWSC 467; (2004) 49 ACSR 578 at [22] (Austin J) and Hughes v Whittens Group P/L [2017] NSWSC 329 at [21].

35. In the circumstances of this case, and as the Judge called upon to make a determination of guilt in a murder case, I am strongly inclined to the view that Witness A should give evidence in the courtroom.

36. However, the “interests of the administration of justice” is an expression of extremely wide import and, before reaching a conclusion on the issue, it is necessary to refer to the confidential evidence and matters raised by the Commissioner and the DPP.

The material tendered by the Commissioner

37. It is inappropriate to articulate the matters raised by the Commissioner and the evidence tendered confidentially. I can say that the matters raised are significant and have considerable bearing on a conclusion as to the “interests of the administration of justice” for the purpose of s 5B(3).

38. I have considered all the evidence tendered and earlier identified.

39. In relation to Witness A, I have paid careful attention to paragraphs 12-20 of MFI C-1, paragraphs 29-31 of MFI C-2, paragraph 4 of MFI C-3. I have also read the full, unredacted, exchange of emails between Officer Hunt and Witness A.

40. Having invited the Commissioner to provide more detail of the matter expressed in paragraph 3 of MFI C-3, and indicating that I did not accept what was there deposed to, I have further considered the issue raised in the light of the detailed and helpful confidential affidavit of Assistant Commissioner Maloney (MFI C-4).

41. Without going into the detail of the confidential material, and without meaning to be exhaustive, I have considered carefully and anxiously:

1. The security and safety of the Witness A.

2. The views expressed both by the witness and the police charged with securing his attendance and protecting his safety.

3. The safety and security of the public in and around the court complex and more generally.

4. What I will call the “resources issue”, its impact on policing more generally, and the safety of the community (which may be indirectly affected).

5. The public interest that witnesses such as Witness A be treated in such a way that will encourage other witness, in a similar position to him, to co-operate with law enforcement authorities in the prosecution of serious criminal offences.

6. The many other relevant matters raised in the extensive volume of material tendered.

42. In terms of the Ex VD C-9, the unredacted copy of Ex VD-7 and VD-8, I accept the Commissioner’s submission that the unredacted version of these emails gives a somewhat different complexion to the communications between investigators and the witness. However, and it is not possible to be explicit in this judgment, I am not aware that, currently, there is any explicit or direct threat or concern. Having said that, the concerns raised in the confidential material are real and serious and must be given significant weight in what is a difficult decision.

43. As was submitted, an assessment of this risk is more about the grave consequences of the risk manifesting itself, rather than a calculation of the probability that it might. [15] I am unable to act on the submission that the threat and risks have been exaggerated. [16]

    15. Cf, for example, State of NSW v Ceissman [2018] NSWSC 508 at [26]-[32].

    16. Tcpt, 3 November 2022, p 208(15-34).

44. As to the resources issue, the issues raised by the police are likely to be alleviated by the fact that none of the other witnesses dealt with in the confidential material will now be required to attend the court. Each will give evidence by AVL.

Conclusion

45. This is a difficult decision. There are powerful factors on both sides.

46. The best assessment of Witness A’s evidence will be made if he gives evidence in the courtroom. His evidence is crucial to the decision I will be called upon to make in a few weeks’ time. The consequences of that decision to the parties could not be more serious.

47. This consideration cuts both ways. Should Witness A give evidence by AVL, and I feel unable properly to assess his demeanour and reactions as he gives his evidence, any doubt must be resolved favourably to the accused. That is the natural consequence of the burden and standard of proof. It is not in the interests of the administration of justice that a person accused of murder should escape justice because the tribunal of fact is unable to assess a critical witness’s evidence in the most reliable and best way.

48. Equally, given the importance of the evidence, the accused is entitled to ensure that I am in the best position I can be to observe any flaws or idiosyncrasies in the way he gives evidence and his demeanour in the courtroom.

49. None of this is to overstate the capacity of a trial judge to make determinations of a witness’s truthfulness based on how they look, or to doubt the wisdom of Lord Atkin’s statement that “an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour”. [17]

    17. See the survey of cases undertaken by Leeming JA in Hodgson v R [2022] NSWCCA 72 at [94]-[98].

50. Once opposition is raised, the onus on this issue lies with the party seeking the AVL direction.

51. Despite the important matters raised by the DPP and the police, I am not satisfied that it is in the interests of the administration of justice for the Court to make a direction under s 5B of the Act that Witness A give evidence by audio visual link.

Orders

52. Accordingly, I make the following orders:

1. Pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998, I direct the following witness are to give evidence by audio visual link:

1. RS 1869816;

2. RS 1546093;

3. RS 1521670;

4. RS 1777888;

5. Under Cover Operative Aaron (UCO Aaron);

6. Dr Sudipto Pal;

7. Nicholas Walker; and

8. Gail Rogers (Muscat).

2. I refuse the application for a direction under s 5B of the Evidence (Audio and Audio Visual Links) Act that Witness A give evidence by audio visual link.

**********

Endnotes

Amendments

21 November 2022 - Redaction in paragraph [42] removed, Witness A having finished giving evidence during the trial.

Decision last updated: 21 November 2022