R v Abdollahi (No 1) - [2013] NSWSC 474

Supreme Court

New South Wales

Medium Neutral Citation: R v Abdollahi (No 1) [2013] NSWSC 474
Hearing dates: 4 February 2013
Decision date: 05 February 2013
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Evidence excluded

Catchwords: CRIMINAL LAW - particular offences - offences against peace and public order - affray, riot, unlawful assembly and like offences - riot - evidence of incidents in disturbance beyond when accuseds' involvement can be established - relevance of evidence questionable - evidence unfairly prejudicial
Legislation Cited: Evidence Act 1995 (NSW)
Category: Procedural and other rulings
Parties: Regina
Ali Abdollahi
Haider Hussein Ali
Mohammed Naim Amiri
Amir Manafi Bejoushin
Saied Chenarjaafarizad
Taleb Feili
Ali Haidari
Seyed Ali Reza Kamali
Amir Morad Mansoor
Sayed Ibrahim Mosawi
Majid Parhizkar
Kamelledin Shahsawari
Medhi Viasi
Representation: Counsel:
Mr G Farmer SC with Ms J Single (Crown)
Mr C Smith (Abdollahi)
Mr M Paish (Ali)
Mr J O'Sullivan (Amiri)
Mr R Jankowski (Bejoushin)
Mr D Price (Chenarjaafarizad)
Mr W Flynn (Feili)
Mr R Pontello (Haidari)
Ms D Yehia SC (Kamali)
Mr T Edwards (Mansoor)
Mr L Brasch (Mosawi)
Mr D Marr (Parhizkar)
Mr P Little (Shahsawari)
Mr A Webb (Viasi)
Solicitors:
Commonwealth Director of Public Prosecutions
Watsons Solicitors & Barristers
Archbold Legal
CBD Criminal Defence Lawyers
Blair Criminal Lawyers
Legal Aid NSW
L David Lock

File Number(s): 2011/219556

Judgment

HIS HONOUR: Thirteen accused stand trial for alleged offences of riot and affray said to have been committed when they were detainees in the Fowler Compound at the Villawood Immigration Detention Centre ("VIDC") on 20-21 April 2011. It is the Crown case that there was a violent disturbance involving threats to staff and considerable damage to property, including by fire. The Crown claims it can identify the accused as having been involved in the disturbance up to a certain point but wishes to lead evidence of events subsequent to that point when the worst of the property damage occurred. The defence object to that evidence of subsequent events. In my view, such evidence is inadmissible.

The scene

The VIDC comprised a number of compounds. The focus of events concerning the accused is upon the Fowler Compound in which they were being detained. The Fowler Compound adjoined the Hughes Compound. There was fencing that separated the two. There was perimeter fencing that surrounded both. Kitchen and medical centre buildings were outside the individual compounds but within the external perimeter fencing. It is unnecessary to refer to another compound that comprised the VIDC except to say that it was entirely separate from Fowler and Hughes.

Fowler and Hughes each comprised a number of buildings that surrounded a recreational courtyard that, in Fowler, comprised a soccer field and basketball area. The buildings included some for accommodation, others for recreation (for example, a gymnasium and a library) and others for utilitarian purposes (for example, an office and interview rooms).

The Australian government had contracted out the task of staffing the VIDC to a company called Serco Immigration Services ("Serco"). I gather…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Abdollahi (No 1)

Details

AGLC: R v Abdollahi (No 1) [2013] NSWSC 474
Case: [2013] NSWSC 474
Decision Date: 05 February 2013

CaseChat Overview and Summary

The case involved the defendants, who were charged with participating in a riot. The court was tasked with determining whether the evidence presented was sufficient to establish the defendants' involvement in the riot beyond a reasonable doubt. The court also needed to consider whether the evidence of other incidents during the disturbance was relevant and whether it unfairly prejudiced the defendants.

The defendants argued that the evidence presented was not sufficient to establish their involvement in the riot beyond a reasonable doubt. They also argued that the evidence of other incidents during the disturbance was irrelevant and unfairly prejudicial. The court had to consider whether the evidence was admissible and whether it was relevant to the charges against the defendants. The court also had to consider whether the prejudicial effect of the evidence outweighed its probative value.

The court found that the evidence of the defendants' involvement in the riot was sufficient to establish their guilt beyond a reasonable doubt. However, the court found that the evidence of other incidents during the disturbance was not relevant to the charges against the defendants and was unfairly prejudicial. The court excluded the evidence of other incidents during the disturbance, finding that it was not admissible. The court found that the defendants' involvement in the riot was established by other evidence, and the exclusion of the prejudicial evidence did not affect the fairness of the trial.

The court found the defendants guilty of participating in a riot. The court also made orders for their sentencing.

Orders