R v Abdollahi (No 4)

[2013] NSWSC 477

Supreme Court

New South Wales

Medium Neutral Citation:	R v Abdollahi (No 4) [2013] NSWSC 477
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 - hearsay evidence - exceptions - admissions made with authority - furtherance of common purpose - common purpose to hold protest was sufficiently demonstrated EVIDENCE - admissibility - risk of unfair prejudice - statements made through allegedly incompetent interpreter - insufficient evidence that interpreter was not accurately translating what she conveyed - evidence admissible
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: Mr Edwards, counsel for the accused Amir Mansoor, has taken a number of objections to discrete items in the Crown case.

Evidence of Ms McNamara as to utterances by Messrs Mansoor and Darabi on the roof of the Macquarie building

1. First of all there is the evidence that is set out in paragraph 11 of the statement of Elisabeth McNamara, an operations manager for Serco, dated 19 July 2011. At some time during the morning of 20 April 2011, the accused Mansoor and another detainee by the name of Darabi, who I interpolate has entered a plea of guilty, were on the roof of the Macquarie Building within the Fowler compound of the Villawood Immigration Detention Centre ("VIDC"). It is said that they were pacing up and down and seemed agitated. They were yelling things both in English and in a foreign language. They were making hand gestures in Ms McNamara's direction that she took to be dismissive and indicating for her to go away. She then attributes the following utterances to both men. Her statement is expressed in this way:

"They said:

'You'd better get that fucking camera away or these tiles are going over your head.'

'You'd better move that black cunt, get him out of this compound, get him away from here or we are going to throw these tiles.'

'We're not going to eat. We're not eating.'" (Emphasis added)

1. She goes on in the next paragraph of her statement to say that she saw that Mr Mansoor had a roof tile in his hands.

1. It was submitted that, without it being clear that the two men were together, that is within earshot of each other, the evidence should not be admitted against Mr Mansoor, given the possibility that the utterances were made by Mr Darabi without the knowledge of Mr Mansoor. It was also submitted that there was no evidence that the two men shared any common purpose at that point in time and, further, that even if there was a common purpose in existence at that time, the utterances were not made in furtherance of any such common purpose: see s 87(c) of the Evidence Act 1995 (NSW).

1. In my view, it seems highly likely that the two men were sufficiently together at the relevant time. They were on the roof of a two-storey building. I accept that the evidence was that the roof was a wide one from the perspective of Ms McNamara where she was standing on the ground. But by virtue of the fact that she refers to the utterances being made by them rather than one or the other man, it seems highly likely that the two men were close to each other at the time the utterances were made.

1. As to there being a common purpose in existence between these two men at the time, they were on the roof together; they were in fact the first of a number of people who, during the course of the day, made their way up on to the roof of the Macquarie Building. They were both yelling things out and they were both making hand gestures and Mr Mansoor was holding a roof tile.

1. The Crown alleges that there was a common purpose to demonstrate and/or protest dissatisfaction with the circumstances of detention within the VIDC. In my view, what is described by Ms McNamara is sufficient to indicate that such a common purpose was in existence at least between those two men at the time. The statements can be characterised as being dismissive of staff; demanding that staff retreat; threatening violence to staff; and indicative of protest (for example, the last of the three utterances I have quoted earlier).

1. The fact that Ms McNamara is, apparently, unable to say which of the two men made each of the utterances, in those circumstances, does not matter. Whether it was Mr Mansoor, or Mr Darabi, such utterances made in furtherance of the common purpose renders them admissible in either case.

Evidence of Ms Gadd of a conversation with Mr Mansoor through an interpreter

1. The next body of evidence objected to is that which appears in the statement of Ms Melissa Gadd at paragraphs 18 to 26. The Crown Prosecutor, after hearing the submissions made by Mr Edwards, has indicated that certain paragraphs within that portion of the statement are not pressed but Mr Edwards maintains an objection to certain aspects that the Crown does seek to press.

1. The passage concerns a conversation between Ms Gadd and Mr Mansoor at some stage during the morning of 20 April 2011. An interpreter was used to translate, apparently between the English and Farsi languages. The Crown evidence would tend to suggest that Mr Mansoor was saying things that were offensive and threatening and that he became aggressive and abusive towards the interpreter.

1. The objection to this evidence is based upon s 137 of the Evidence Act, primarily because there is uncertainty as to whether the conversation was accurately interpreted. In paragraph 18 of the statement there is this:

"I requested another interpreter to be made available in case we needed one as I had recently used Ellna and had some difficulties with her interpreting exactly what I had said. I was worried that if my exact words were not what was interpreted to the client's [sic], it could inflame the situation."

1. Although the Crown does not press paragraph 21, I note that it includes that another detainee standing nearby is said to have intervened by asking, "What are you saying that for?" That was directed towards the interpreter or perhaps it was directed towards Ms Gadd.

1. At the committal hearing Ms Gadd gave evidence and, in the course of cross-examination, she agreed that she was unhappy with the interpreter because she had to keep reminding the interpreter to repeat exactly what Ms Gadd was saying because she was having conversations on her own with clients on the roof; not relaying what her part of those conversations was; and not relaying what the men on the roof were saying by way of response. In other words, the interpreter was relaying certain things but not everything. As a consequence Ms Gadd felt the interpreter was so incompetent that she had her removed.

1. In my view such expressions in the statement and in the committal transcript do not indicate there is reason to doubt the accuracy of what was interpreted. It is more indicative of dissatisfaction with the interpreter not confining herself to interpretation of what Ms Gadd was saying and relaying what Mr Mansoor had said from his position on the roof. Ms Gadd's concern seems to have been more about the interpreter having additional conversation with him that she was not relaying back to Ms Gadd.

1. The suggestion in the statement that there had been difficulties on a previous occasion experienced by Ms Gadd with this particular interpreter does not indicate necessarily that there was inaccuracy on the occasion in question.

1. Mr Edwards noted in the course of his submissions that we do not have a statement by the interpreter as to the accuracy or otherwise of her interpretation of the conversation in question. That is not, in my view, determinative.

1. My conclusion is that the evidence is relevant (and it was not contended to the contrary). The Crown is required to prove the common purpose that I have referred to earlier in relation to the charge of riot and the evidence may be accepted by the jury as being relevant to that and to the involvement of Mr Mansoor, and indeed others, in such a common purpose.

1. The evidence is also relied upon by the Crown in support of the charge of affray and I accept that it is capable of having probative value in respect of that as well.

1. In my view there is insufficient evidence to establish that there is such doubt about the accuracy of the interpretation that there would be unfair prejudice to the accused Mansoor that outweighs the probative value of the evidence. The evidence is admissible.

Evidence of Ms Gadd of a threat by Mr Mansoor to harm an imam

1. The final objection that is made concerns what appears in paragraph 36 of Ms Gadd's statement. There Ms Gadd sets out past experience of clients climbing on to the roofs of buildings, such as the Macquarie Building, to gain attention to their cause. In the past, apparently, in an attempt to defuse such situations it had been suggested to the detainee or detainees that they speak to an imam of their religion; the rationale being that such a person would be a respected figure of authority who might be able to reason with the detainees. Ms Gadd says that she asked the interpreter to convey a suggestion in such terms to the men on the roof, namely, Mr Mansoor and Mr Darabi, and that Mr Mansoor replied, "Don't bring the Imam up here or we will throw tiles at him".

1. The objection to that evidence is based upon s 137 of the Evidence Act. It was submitted that it has probative value but to a limited extent. The threat was directed towards an imam and based on religious ideology and, further, it was a threat against somebody who was not present. The unfair prejudice was suggested to arise from this being a threat against a religious leader and may deflect the jury from a dispassionate consideration of the case concerning Mr Mansoor.

1. In my view, the probative value of this evidence is higher than was suggested by Mr Edwards. It is capable of being regarded as indicating that Mr Mansoor was not prepared to negotiate but was more intent upon pursuing the common purpose that I have referred to earlier. I cannot see that a jury would be likely to misuse the evidence. I cannot see that there is unfair prejudice that outweighs the probative value of the evidence. The evidence is admissible.

**********

Decision last updated: 02 May 2013