R v Abdollahi (No 5)

[2013] NSWSC 478

Supreme Court

New South Wales

Medium Neutral Citation:	R v Abdollahi (No 5) [2013] NSWSC 478
Hearing dates:	5 February 2013
Decision date:	11 February 2013
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Evidence excluded
Catchwords:	EVIDENCE - admissibility - hearsay evidence - identification of accused by person unknown - evidence not 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 John Tinline is a senior operations manager with Serco, the company contracted by the Australian Government to operate the Villawood Immigration Detention Centre ("VIDC"). His evidence includes identification of the accused Taleb Feili in two incidents involving him behaving in a threatening manner and causing property damage with fire extinguishers during the course of a disturbance in the Fowler Compound of the VIDC on 20 April 2011.

1. Mr Flynn, counsel for the accused Mr Feili, has objected to the admissibility of this identification evidence.

The evidence to which objection is taken

1. The disturbance within the Fowler Compound on 20 April 2011 had been underway for about 12 hours when Mr Tinline returned to duty at 10.00pm. He was directed to go to Fowler. On arrival he spoke with Elisabeth McNamara who was an operations manager. A process of changeover of staff was occurring.

1. Paragraph 33 of Mr Tinline's statement makes reference to "a client coming over to talk to us". Presumably, the "us" is he and Ms McNamara. The paragraph then refers to observations he made about this client, including that he perceived that the client was "quite drunk". He described him as "quite short, quite a small man, probably about five foot four to five, he was about 60 years old, middle eastern, greying hair and he had a moustache and was unshaven".

1. Paragraph 33 concludes, "After he moved away, I asked who he was and I was told he was client Feili". No mention is made of who it was who told Mr Tinline this.

1. He later said (at paragraph 42) that at a time that, by inference, was about an hour after the first observation of the man who seemed "quite drunk", that he saw some of the detainees emptying fire extinguishers and then throwing them onto a fire on the soccer pitch. He said that one of these detainees "was client Feili who had been identified to me earlier that night".

1. Staff began to move back towards the Murray Unit office as the behaviour of the detainees became more threatening. As they did so, a group of around 20 to 30 detainees started moving towards these staff. Mr Tinline's statement records (paragraphs 45-46):

Towards the front of this group was client Feili, who was holding a fire extinguisher. He was holding it at head height, with one hand on the top of it, and one hand on the bottom of it. He ran from the group towards us with this fire extinguisher. The way he was holding it made me think he was going to throw it at us.

As the group was moving towards us, and client Feili ran from the group towards us, I gave the instruction for the staff to enter the Murray Unit. As the staff were moving into the Murray Unit I could still see the group coming towards us, and Feili running towards us with the fire extinguisher. When he was almost at us, I saw him stop, he looked at us then at the window of the staff office, and threw the fire extinguisher into the window of the staff office. He was about three or four metres from where I was standing.

1. Mr Tinline then recounted how another detainee then threw a piece of burning wood through the window that the person he nominated as Mr Feili had broken with the fire extinguisher.

The objection

1. Mr Flynn's objection is to Mr Tinline giving evidence that the person he referred to in the above passages of his statement was the accused Feili. He contends that it is inadmissible because it is hearsay and not within any exceptions in the Evidence Act 1995 (NSW) that would allow its admission.

1. Further, if Ms McNamara was the source of Mr Tinline's information that the person he described as "quite drunk" was Mr Feili, then it was not something that was within her personal knowledge because somebody else had told her the man's name as well.

The Crown's response

1. There are other witnesses who appear to have been present at the time of the first sighting by Mr Tinline of the person he was told was Mr Feili: Ms McNamara, Simon Atachparian, Orlando Papa, Cameron Stuart and Melissa Gadd. Each of those people identify Mr Feili as the detainee involved and they will be called to give evidence. Accordingly, it may be that by the time Mr Tinline gives evidence it will have been accepted that he was the person involved in that initial incident. I take it that the Crown Prosecutor was suggesting that it would then be merely a case of Mr Tinline saying that the person involved in the first incident was the same person involved in the two incidents involving a fire extinguisher.

1. In any event, so it was submitted, Mr Tinline's evidence of asking (at the time of the first incident) "Who's that?" and being told the person's name was of itself admissible evidence.

Consideration

1. In Ms McNamara's statement at paragraph 37 she referred to an incident in which Mr Feili approached her and assaulted her (mildly it must be said). In that paragraph she referred to her assailant as being "an older man and I now know him to be Feili". I was informed by the Crown Prosecutor that the source of her information as to the name of this man was either of two other members of Serco staff, Mr O'Connor or Mr Atachparian.

1. Ms McNamara's statement proceeds in paragraph 38 to recount some activity by detainees who were on the roof of the Macquarie Building. In the following paragraph she said, "A short time later, John Tinline and Craig Moody arrived and took over from me." She made no reference to Mr Feili approaching again whilst she was in Mr Tinline's company. Mr Tinline makes no reference in his statement to the man who seemed "quite drunk" assaulting Ms McNamara. Accordingly, it would appear that the two witnesses are referring to different incidents.

1. The statements of Mr Atachparian, Mr Papa and Mr Stuart include reference to an event that sounds like it was the same as recounted by Ms McNamara in which Mr Feili was behaving aggressively towards her. Ms Gadd included reference to what was likely the same incident in her statement but she added that it was while Ms McNamara was briefing the nightshift staff that had arrived. Those staff would have included Mr Tinline. There is no mention in the statements of Messrs Atachparian, Papa and Stuart of Mr Tinline, or indeed nightshift staff, being present. Moreover, none of these four witnesses describe Mr Feili as "quite drunk" and none of them provide a clue as to who it might have been who told Mr Tinline the name of the person concerned.

1. If it does turn out that there is a coincidence between the first incident described by Mr Tinline and the incident referred to by Ms McNamara and the other four witnesses, and one of those witnesses is able to say that the person concerned was Mr Feili, then it might be possible for the Crown to make the link so as to identify him as the person Mr Tinline says was subsequently involved in the two fire extinguisher incidents.

1. However, as the evidence presently stands, it is merely Mr Tinline saying that the person involved in the fire extinguisher incidents was Mr Feili because somebody else, whose identity is unknown, told him the man's name.

1. I raised a question during the course of Mr Flynn's submissions as to hearsay being generally involved when it comes to a person knowing somebody else's name. I do not believe that is an issue that needs to be further explored. In the circumstances of this case, the evidence of Mr Tinline identifying Mr Feili as the person in the two fire extinguishers is plainly inadmissible hearsay.

1. Even if it could be concluded that the evidence was not inadmissible hearsay, it would fall for exclusion under s 137 of the Evidence Act. The source of the information provided to Mr Tinline as to the person's name is unknown. Accordingly, as the evidence presently stands, whether the information was accurate is impossible to determine. Admitting the evidence would be unfairly prejudicial because a most incriminating piece of evidence would have a reliability that the jury could not assess.

Conclusion

1. The objection is upheld. The evidence is excluded.

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Decision last updated: 02 May 2013