R v Abdollahi (No 3)

[2013] NSWSC 476

Supreme Court

New South Wales

Medium Neutral Citation:	R v Abdollahi (No 3) [2013] NSWSC 476
Hearing dates:	5 February 2013
Decision date:	05 February 2013
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Evidence admissible
Catchwords:	EVIDENCE - admissibility - identification evidence - application to exclude evidence - confusion between two different accused - insufficient to render evidence inadmissible
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: On behalf of the accused Ali Haidari, Mr Pontello of counsel takes objection to identification evidence sought to be led by the Crown from the witness Simon Atachparian. At paragraph 18 of Mr Atachparian's statement of 22 April 2011, he said that he saw a number of clients who he nominated, including Ali Haidari, climbing a fence and then onto the roof of the Macquarie Building in the Fowler Compound of the Villawood Immigration Detention Centre on 20 April 2011.

1. Mr Atachparian was called for cross-examination on a Basha voir dire last Thursday. He seemed to say when shown a small photograph of Mr Ali Haidari in the course of cross-examination by Mr Pontello that this was not the person who he had been speaking of and that the person who he intended to refer to was another of the accused, Haider Hussein Ali.

1. Mr Atachparian was re-examined by the Crown Prosecutor and an element of confusion appeared to emerge in this aspect of Mr Atachparian's evidence in that he made reference to his mistake as to identification being in relation to a person that he saw running on the ground towards the laundry rather than it being a mistake about a person that he saw on the roof.

1. Mr Pontello contends that as a result of the evidence given on the Basha inquiry the evidence set out in paragraph 18 of Mr Atachparian's statement is inadmissible.

1. No objection otherwise is taken to the nature of the evidence of identification set out in that paragraph.

1. In my view the evidence given by Mr Atachparian on the Basha inquiry, because of its somewhat confused state, is not such that would render the evidence in paragraph 18 of the statement inadmissible. It is a matter for the Crown to clarify for itself that Mr Atachparian is in a position to make the identification that it asserts in that paragraph and it obviously is a matter about which the reliability and accuracy of that identification can be questioned because of the evidence that he gave last Thursday.

1. In my view, that evidence does not render the evidence inadmissible if the Crown chooses to pursue it, so I do not uphold the objection to Mr Atachparian's evidence in that respect.

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Decision last updated: 02 May 2013