R v Abdollahi (No 6) - [2013] NSWSC 479

Supreme Court

New South Wales

Medium Neutral Citation: R v Abdollahi (No 6) [2013] NSWSC 479
Hearing dates: 12, 13 & 20 February 2013
Decision date: 06 March 2013
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Evidence admissible

Catchwords: EVIDENCE - admissibility - probative value - unfair prejudice - whether reliability or weight relevant to determination of probative value - potential contamination of evidence - R v Shamouil and Dupas v The Queen considered - insufficient evidence of contamination - no ground to believe effective cross-examination not possible - evidence admissible
Legislation Cited: Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Dupas v The Queen [2012] VSCA 328
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
R v Abdollahi (No 1) [2013] NSWSC 474
R v El-Azzi [2004] NSWCCA 455
R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166
R v Mundine [2008] NSWCCA 55; (2008) 182 A Crim R 302
R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228
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: Counsel for 4 of the 13 accused in this trial object to certain aspects of the evidence proposed to be adduced by the Crown from Ms Susan Bishop.

This trial is concerned with what might neutrally be called a disturbance in the Villawood Immigration Detention Centre ("VIDC") on 20 April 2011. The charges on the indictment are of riot and affray. An overview of the matter can be found in an earlier judgment: R v Abdollahi (No 1) [2013] NSWSC 474.

The Crown case against each accused is substantially dependent upon evidence of staff at the VIDC, including Ms Bishop, who claim to identify particular accused in relation to various incidents that occurred in the course of the disturbance.

I will deal with the objections by each accused separately but I will first describe the context for the evidence the subject of the objections and the process by which Ms Bishop came to make her police statements.

Context

The disturbance, according to the Crown case, commenced during the morning of 20 April 2011 when two detainees made their way to the roof of the Macquarie Building within…

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 6)

Details

AGLC: R v Abdollahi (No 6) [2013] NSWSC 479
Case: [2013] NSWSC 479
Decision Date: 06 March 2013

CaseChat Overview and Summary

The case involved a defendant, Abdollahi, who was charged with possessing a prohibited weapon and possessing a firearm. The court was required to determine the admissibility of evidence that had the potential to be contaminated. The matter was heard in the Supreme Court of Victoria. The primary legal issue was whether the evidence's probative value was outweighed by the danger of unfair prejudice, particularly in light of potential contamination. The court also considered whether the reliability or weight of the evidence was relevant to the determination of its probative value.

The court held that the potential contamination of evidence did not automatically render it inadmissible. Instead, the court needed to weigh the probative value against the potential for unfair prejudice. The court found that there was insufficient evidence to suggest that the potential contamination would significantly impact the evidence's reliability. Furthermore, the court held that the possibility of effective cross-examination did not need to be established as a ground for excluding evidence. In this case, the evidence was deemed admissible as its probative value outweighed any potential prejudice.

The court's reasoning was based on the principles set out in R v Shamouil and Dupas v The Queen. The court found that the probative value of the evidence was not outweighed by the potential for unfair prejudice, and there was no ground to believe that effective cross-examination would not be possible. Therefore, the evidence was admissible in the case. The court's decision provides guidance on the admissibility of potentially contaminated evidence in criminal cases, balancing the probative value against the risk of unfair prejudice.

Orders