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

1. 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

1. 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.

1. 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).

1. The Australian government had contracted out the task of staffing the VIDC to a company called Serco Immigration Services ("Serco"). I gather that the task of Serco staff included looking after the daily needs of inmates as well as providing for the physical and operational security of the VIDC.

The disturbance

1. The disturbance commenced early in the day on 20 April 2011 when two detainees were seen to be on the roof of one of the buildings in the Fowler compound (the Macquarie Building). There followed a number of events throughout the day and into the evening. Further detainees made their way onto the roof. Roof tiles were thrown to the ground and in the direction of Serco staff or specific infrastructure such as interview rooms. Some of the detainees on the ground are alleged to have been aggressive towards Serco staff.

1. Staff began removing from the Fowler Compound those detainees who did not wish to be involved in the disturbance. Other detainees continued to become more agitated. Roof tiles continued to be thrown from the roof of the Macquarie Building. Staff retreated to the office area within the compound (the Murray Unit). One of the detainees on the roof is alleged to have been shouting "Fuck Serco" and "Freedom". Another was yelling "Fuck you. Fuck your mothers. Fuck your sisters. Fuck immigration". Wheelie bins were set on fire. Fire extinguishers were emptied of their contents and thrown away, some in the direction of staff. Soccer goal posts were dismantled and put on a fire on the soccer field.

1. One detainee was seen to throw a fire extinguisher through the Murray office window. Another threw a piece of burning wood into the window causing the office to catch fire. It was at about this point that Serco staff were evacuated from the Fowler Compound. This was at about 11.15pm to 11.20pm.

1. It is unnecessary for present purposes to go into any further detail about the events the Crown alleges occurred during the course of this disturbance. The foregoing is merely intended to provide the flavour of it.

1. At the time of the evacuation, there were a number of fires within the Fowler Compound. Further fires were set following the evacuation. About an hour or so later unidentified detainees broke down the fence and entered the Hughes Compound. There, and also in the medical centre and kitchen buildings, occurred further fires and other property damage.

1. The evacuation of the Serco staff brought an end to any ability for identification of who did what in the events that followed with the exception of one of the accused, namely Majid Parhizkar.

1. The evidence of property damage, including by arson, that occurred after the evacuation is substantial and dramatic. Video footage obtained from a police helicopter and from a television station shows raging fires. Photographs of the aftermath show the large extent of the damage. However, much of this is unable to be attributed by the Crown to any of the accused (aside from Mr Parhizkar).

The objection

1. An objection has been made to the Crown leading any evidence of events subsequent to the point at which the accused can be identified as being involved in disturbance. It is contended that if the evidence has any probative value at all, which is not conceded, it is outweighed by the danger of unfair prejudice to the accused.

Reasons for upholding the objection

1. The Crown does not rely upon any of the subsequent events to identify any of the accused as having been involved in the preceding events. It is only the evidence of the preceding events that can, potentially, inculpate the accused for the crimes with which they stand charged.

1. One of the elements of the offence of riot is that there was a common purpose for which 12 or more persons present together used or threatened unlawful violence. Theoretically, at least, it may be that the evidence of subsequent events might inform the jury's consideration of the nature and extent of the common purpose of the detainees of the VIDC who were involved in what I have called "the disturbance". If so, it would be relevant and therefore admissible, but subject to the requirement to exclude evidence if its probative value is outweighed by the danger of its unfair prejudice to the accused: s 137 Evidence Act 1995 (NSW).

1. In the circumstances I have outlined above, the evidence is limited in any such potential relevance to establishing (potentially) a common purpose of a large group of detainees. It says nothing about whether any of the accused (with the possible exception of the accused Parhizkar) shared that common purpose. So, I have grave doubts about whether the evidence meets the first test posed by s 56 of the Evidence Act.

1. Even if the evidence was relevant, with the inability of the Crown to establish the involvement of any of the accused (aside from the possible exception of Mr Parhizkar) in any of the events subsequent to the staff evacuation from Fowler, the substantial nature of the rampage and the property damage that occurred from that point means, in my view, that the accused would be unfairly prejudiced if such evidence was to be admitted. The evidence could impermissibly influence the jury to consider that the accused were responsible for a far more significant disturbance and substantial property damage than that which they can be shown to have been involved in, even taking the Crown case at its highest.

1. I note that the Crown Prosecutor indicated during the course of submissions that if I was to exclude evidence of the events subsequent to the staff evacuation in relation to 12 of the accused, the Crown would not seek to lead any evidence of the involvement of Mr Parhizkar in those events. Whilst such evidence might be relevant to the state of mind of Mr Parhizkar prior to the evacuation, it was acknowledged that such evidence would be unduly prejudicial in relation to the other accused (T245).

1. I conclude that all evidence of events subsequent to the evacuation of Serco staff from the Fowler Compound is inadmissible. This does not mean that evidence derived subsequent to that time is excluded. Evidence derived at a subsequent time, which clearly bears upon events which must have been in existence, or initiated, at around or prior to that time (for example, video footage recorded after the evacuation of fires set at around or before the time of evacuation) is not excluded.

A consequence of this ruling

1. This ruling will mean that the jury will be left wondering what happened after the staff evacuation from Fowler. They will be aware that some detainees were still on the roof of the Macquarie Building and that others were continuing the disturbance on the ground in that compound. They will no doubt wonder what happened to bring the disturbance to an end. There was some discussion about this aspect during the course of submissions. It seems to me that it would be appropriate, indeed necessary, to convey to the jury in some fashion that the disturbance continued for some time after the evacuation but because of the absence of staff, the Crown is not in a position to attribute blame to any individual, accused or otherwise. It will be necessary to direct the jury that events subsequent to the evacuation have no bearing upon their consideration of the charges brought against any of the accused.

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Decision last updated: 02 May 2013