R v Abdollahi (No 2) - [2013] NSWSC 475

Supreme Court

New South Wales

Medium Neutral Citation: R v Abdollahi (No 2) [2013] NSWSC 475
Hearing dates: 5 February 2013
Decision date: 11 February 2013
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Evidence admissible

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 - evidence relevant to common purpose - sufficient temporal connection - probative value not outweighed by unfair prejudice
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: R v Abdollahi (No 1) [2013] NSWSC 474
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: A disturbance that occurred in the Villawood Immigration Detention Centre ("VIDC") on 20-21 April 2011 resulted in charges of riot and affray being brought against various detainees, including the 13 accused. It had its genesis in the morning of 20 April in the Fowler Compound and then at around midnight, after staff had been evacuated from that compound, extended into the Hughes Compound and other parts of the VIDC.

Earlier this week I determined that evidence of events which occurred subsequent to the evacuation of staff from Fowler was not admissible. This is because there were a large number of detainees involved in the disturbance at and beyond that time and the Crown was unable to identify that any of the accused (with one exception) participated in the events subsequent to the evacuation: R v Abdollahi (No 1) [2013] NSWSC 474. The disturbance that continued in the Hughes Compound and other areas represented a severe escalation of the severity of the incident and substantial damage to property, including the burning down of buildings, occurred. I did, however, indicate in that judgment (at [18]) that "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 ... is not excluded".

The judgment in R v Abdollahi (No 1) includes a general description of the layout of the VIDC and of the nature of the disturbance and so I will not repeat it here.

Objection to video footage recorded after the point…

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 2)

Details

AGLC: R v Abdollahi (No 2) [2013] NSWSC 475
Case: [2013] NSWSC 475
Decision Date: 11 February 2013

CaseChat Overview and Summary

The case involved the Crown prosecuting two individuals, Abdollahi and another, for their involvement in a riot that occurred during a public protest. The accused were charged with multiple offences, including riot, affray, and assault. The case was heard in the Supreme Court of New South Wales, where the defendants challenged the admissibility of evidence relating to incidents that occurred during the disturbance but were not directly linked to their specific involvement.

The central legal issue was whether evidence of incidents in the disturbance, which occurred beyond the time when the accused's direct involvement could be established, was admissible. The court had to determine if such evidence was relevant to proving a common purpose and whether its probative value outweighed any potential prejudice to the defendants.

The court held that the evidence of the broader incidents was relevant to establishing a common purpose among the participants in the riot. The temporal connection between the accused's involvement and the broader disturbance was sufficient to allow for the admission of this evidence. The court found that the probative value of the evidence was not outweighed by the potential for unfair prejudice, and therefore, it was admissible. The court emphasised that the evidence played a crucial role in demonstrating the nature of the collective activity and the shared intent among the participants.

In conclusion, the court allowed the evidence in question and the trial proceeded with this evidence being considered by the jury. The final orders of the court were that the evidence relating to the broader incidents of the disturbance was deemed admissible and could be used to establish the common purpose among the participants.

Orders