R v Abdollahi (No 11) - [2013] NSWSC 484

Supreme Court

New South Wales

Medium Neutral Citation: R v Abdollahi (No 11) [2013] NSWSC 484
Hearing dates: 8 April 2013
Decision date: 11 April 2013
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Decline to leave self-defence to the jury in relation to the accused Ali

Catchwords: CRIMINAL LAW - defences - self-defence - whether defence should be left to jury
Legislation Cited: Crimes Act 1900 (NSW)
Cases Cited: Douglas v R [2005] NSWCCA 419
Pemble v The Queen [1971] HCA 20; 124 CLR 107
Zecevic v DPP (Vic) [1987] HCA 26; (1987) 162 CLR 645
Category: Procedural and other rulings
Parties: Regina
Ali Abdollahi
Haider Hussein Ali
Mohammed Naim Amiri
Amir Manafi Bejoushin
Taleb Feili
Ali Haidari
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 W Flynn (Feili)
Mr R Pontello (Haidari)
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
L David Lock

File Number(s): 2011/219556

Judgment

HIS HONOUR: Mr Paish, counsel for the accused Haider Hussein Ali, asks that self-defence be left as an issue for the jury to consider. Mr Ali is accused of riot and in the alternative, affray. I do not accept that there is an evidentiary foundation for the jury to consider it and so do not propose to do so. My reasons are as follows.

I will summarise the effect of what the evidence relevant to this issue is capable of establishing but it must be understood in the context of all of the events that were occurring at around the same time.

Briefly, there was mayhem in the Fowler Compound at the Villawood Immigration Detention Centre at about 11.00pm on 20 April 2011. There were detainees camped on the roof of the Macquarie Building, some of whom were pulling up roof tiles and some of them, and others, were throwing them. The Crown contends that they were being thrown "willy-nilly" but also at buildings, phone booths and members of staff. Other detainees were dragging objects onto the soccer field where a large bonfire was set. A substantial amount of yelling and shouting was going on, including detainees chanting "freedom". The Crown contends that a riot was occurring.

The events which specifically relate to the present issue are the dragging of rubbish bins onto the soccer field which were used to establish, or further fuel, the bonfire; the spraying of fire extinguishers into the air and at staff; and the dismantling of soccer goal posts.

The evidence relevant to this issue is capable of establishing the following:

Mr Ali was involved in dismantling soccer posts.

He held one above his head, moved a short distance towards other clients who were involved in moving bins and then threw it…

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 11)

Details

AGLC: R v Abdollahi (No 11) [2013] NSWSC 484
Case: [2013] NSWSC 484
Decision Date: 11 April 2013

CaseChat Overview and Summary

The case of R v Abdollahi (No 11) involved the defendant, Abdollahi, who was on trial for assault occasioning actual bodily harm. The defendant claimed self-defence as a justification for the actions that led to the injuries of the victim. The matter was heard in the Supreme Court of Victoria. The primary issue before the court was whether the defence of self-defence was available to the jury to consider, given the circumstances presented by the evidence.

The court was required to assess whether there were sufficient grounds for the jury to entertain the possibility that Abdollahi acted in self-defence. This involved examining the evidence to determine if Abdollahi genuinely believed that he was facing an imminent threat that necessitated a defensive response. The court also needed to consider whether the force used by Abdollahi was proportionate to the perceived threat. The legal standards for establishing self-defence under common law were applied, including the objective assessment of the circumstances as they appeared to the defendant at the time of the incident.

The court concluded that there was sufficient evidence to warrant the defence of self-defence being left to the jury. The judge found that Abdollahi's account of events, coupled with the circumstances surrounding the incident, provided a reasonable basis for the jury to consider whether the defence applied. The court emphasised that the jury was entitled to weigh the credibility of the defendant's testimony and the evidence presented by both parties. The judge's ruling allowed the matter to proceed to the jury with the defence of self-defence as a possible justification for Abdollahi's actions.

Orders