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

1. 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.

1. 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.

1. 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.

1. 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

1. 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 the Fowler Compound at the VIDC. They were motivated to protest the nature and circumstances of their detention. They refused to come down. The disturbance escalated by early evening when other detainees joined them on the roof. The situation worsened as the evening wore on: detainees were throwing tiles off the roof; others on the ground were piling up rubbish on the soccer field which was then set alight; and others were emptying the contents of fire extinguishers and then throwing them about, including towards staff. Staff evacuated the compound at about 11.15pm which roughly coincided with detainees commencing to set a number of buildings alight.

Ms Bishop's notes and police statements

1. Ms Bishop had made some handwritten notes on 21 April after she had gone home from work (a "two-page list"). The process by which she came to make those notes is a little convoluted but a short summary based upon the evidence she has given on the voir dire on 30 January and 11 February 2013 is as follows.

1. Ms Bishop gave evidence that it was her habit to carry a block of "post-it notes" in her pocket when on duty in the compound [Pre-Trial at T73]. She wrote contemporaneous notes of things she was observing on the night of 20 April 2011 on her post-it notes. At a later stage of her shift, after she and other staff had evacuated from the Fowler Compound, when she was in an office in the Westbridge building, she wrote notes on what is referred to as a "nominal roll"; a roll of all detainees with thumbnail-sized photographs. She was aided in this process by the notes she had earlier made on post-it notes. While Ms Bishop acknowledged in cross-examination that the purpose of the exercise was to transfer her notes onto the roll, she left open the possibility that some of her original notes were not reflected on the roll [Pre-Trial at T332].

1. Ms Bishop left the copy of the nominal roll on which she had written notes in the office. Later on the morning of 21 April, before going home, she returned to the office and made a black-and-white photocopy of that nominal roll and took the copy with her. By this stage other staff had endorsed their own comments on it as to what they purported to have seen as to the involvement of various detainees in the disturbance. She produced that roll with her second statement of 7 February 2012. Ms Bishop was hesitant in the evidence she gave on 11 February 2013 on the voir dire in saying that the additional notations were not in her handwriting but I am satisfied that her evidence on 30 January 2013 was to that effect.

1. Ms Bishop wrote her notes on the nominal roll in blue pen. Because the copy she took home was not in colour, it was difficult to ascertain which comments were hers, and which others wrote. However, in her last statement of 7 February 2013, she produced a colour photocopy of the same roll she wrote upon. That copy was made at a later time, with more annotations than on the copy she took home. By comparing the two copies, it is possible to see exactly what annotations were available to Ms Bishop at the time she made her two-page list; which of those annotations were not written by her but were on the copy she took home on 21 April 2011; and which annotations were added by other staff after she had made the photocopy to take home.

1. Let me succinctly reiterate in case this is not clear. Ms Bishop made notes on a nominal roll and then left it in the Westbridge office. Others made further notes on it. Ms Bishop returned, made a photocopy, and took the photocopy home. A copy of the roll in this iteration was produced with her second statement. This was the version she had at home on 21 April. Others then made further notes on the original she had left in the office. The copy she produced with her third statement contained the further notations made by others, but these notations were not on the copy she took home.

1. After Ms Bishop went home, sometime later on 21 April, she wrote out a two-page list that comprised the names of detainees and a brief indication of activities during the course of the disturbance with which they were involved. Her evidence on the voir dire was that the purpose of taking a copy of the nominal roll home was to ensure she had the correct spelling of the detainees' names. However, I note that in the first of her police statements made on 24 April 2011 she said:

[59] Once I got home I compiled some notes about what happened that night, and used the copy of the nominal role [sic], including photographs, to jog my memory about who did what. I also made note of things other staff had told me, which formed part of these notes. ...

1. A second police statement was made on 7 February 2012. Here she provided further information as to what she claimed to have observed on 20 April 2011, aided by recourse to her two-page list.

1. A third police statement was made on 7 February 2013. The purpose of this statement was to describe the process by which she made her notes on the nominal roll and her two-page list. It included:

[12] I did not use the nominal roll to make my notes [ie the two-page list], I just used my memory and my post it notes. I did not rely on the notations written on the right of the nominal roll I just used the nominal roll to get the correct spelling of the clients names.

Objection by the accused Seyed Alireza Kamali

1. The evidence that is the subject of the objection by the accused Kamali appears in Ms Bishop's second statement:

[8] I refer to Amir Manafi Bejoushin in notes [the two-page list] as being involved with fire, by this I meant that I saw him with Kamili [sic] and Viasi. All three pulled at the bins which were chained to the railing outside the laundry. They pulled the bins down to the flat part of grassed area all three helped each other push the bins over and shook the bins until all the contents had fallen out onto the ground. Within a minute of this happening the contents were on fire.

1. In her first statement Ms Bishop described (at [41]) an event, during the course of many other events, involving the accused Chenarjaafarizad, Ali and Feili (with no mention of Mr Kamali) pulling wheelie bins onto the soccer field and tipping out their contents. She stated that she then saw an unnamed detainee set fire to the rubbish. Those three named detainees were then said to have gathered other material that they put on the fire.

1. While this was going on, according to Ms Bishop, the accused Parhizkar was throwing tiles from the roof of the Macquarie Building at Serco staff and then the accused Chenarjaafarizad, Feili and Shahsawari, as well as Dadash (who has pleaded guilty and been sentenced), took up fire extinguishers and sprayed their contents at staff and then threw the extinguishers themselves at staff.

1. The entry in Ms Bishop's two-page list that concerns Mr Kamali is as follows:

KAMALI Ali Reza: involved with fire extinguishers.

1. The entry in the notes that concerns Mr Bejoushin, which is the entry referred to in [8] of her second statement, is:

MANAFI BEJOUSHIN Amir: - involved with fire

Submissions in support of the objection

1. Ms Yehia SC has submitted that the identification by Ms Bishop of Mr Kamali as being involved in the incident described in [8] of her statement of 7 February 2012 "is so contaminated that it lacks probative value" and that "any probative value that could be attributed to it is outweighed by the danger of unfair prejudice": s 137 of the Evidence Act 1995 (NSW).

1. The "unfair prejudice" is identified as being twofold:

(i)   There is a real risk that it would contribute to an erroneous verdict because it might be misused by the jury because they may place more weight on it than it deserves.

(ii)   In testing the reliability of the witness's account, it will be necessary to refer to notations made on the nominal roll by unidentified staff, who implicate the accused but cannot themselves be tested on his behalf.

1. The "contamination" that is said to infect Ms Bishop's evidence is that the nominal roll which she had access to when writing her two-page list on 21 April 2011 included notations made by other, unidentified, Serco staff. In relation to Mr Kamali, it includes a notation against his name: "Extinguisher". Despite the hesitancy in accepting the proposition in her evidence on 11 February 2013, I am satisfied that she did not make that note. Her evidence was that she made her notes on the nominal roll in blue pen. That entry is not in blue. The copy of the nominal roll that she produced with her third statement contains, in addition to the word "Extinguisher", a comment against Mr Kamali's entry: "Discharging extinguisher + lighting fires". However, as explained above, this entry was made on the nominal roll after Ms Bishop photocopied it, and she would not have seen it when making her two-page list.

1. Whilst there was reference to Mr Kamali being "involved with fire extinguishers" in the two-page list made by Ms Bishop on 21 April 2011, she made no mention of him at all in the statement she made three days later.

1. Ms Yehia referred to the fact that there was no claim in any of Ms Bishop's statements of Mr Kamali doing anything with fire extinguishers, but that she had access to notations by other, unidentified, staff members to that effect. The first time Ms Bishop nominated Mr Kamali as doing something in the course of the disturbance on 20 April 2011 was in February 2012. Accordingly, it was submitted, Ms Bishop's evidence in this respect "is so lacking in probative value that it should be excluded pursuant to s 137".

1. Another matter that, it was submitted, detracted from the probative value of the evidence was that whilst Ms Bishop claimed to be able to recognise Mr Kamali from past contact with him within the VIDC, she was completely unable to identify any single occasion prior to 20 April 2011 when she had a direct dealing with him (Pre-Trial T38-39).

1. It was also submitted, in effect, that the fact that there are other witnesses identifying Mr Kamali as being involved in the incident referred to in Ms Bishop's second statement at [8] is irrelevant. Contaminated evidence of identification does not become less contaminated by virtue of the existence of other sources of identification.

1. The submission placed reliance upon the recent decision of the Victorian Court of Appeal in Dupas v The Queen [2012] VSCA 328, a decision commanding considerable respect, particularly as it was the product of a five judge bench which expressed strong disagreement with the decision of the NSW Court of Criminal Appeal in R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228. The contentious issue between the two judgments is the extent to which the reliability or potential weight of evidence is a matter for a trial judge to consider in assessing the probative value of evidence to which objection is taken. Such a consideration arises in a variety of contexts under the Evidence Act and that includes s 137. In her oral submissions, Ms Yehia accepted that this Court is bound by R v Shamouil. However, even that authority did not completely preclude a consideration of the reliability or weight of evidence that remained a relevant consideration, albeit in a fairly confined respect.

Submissions for the Crown

1. For the Crown it was submitted that the evidence was probative of facts in issue, namely the identification of detainees engaged in acts of violence during the course of the alleged riot. Even if the view was taken that the probative value was little, or weak, that is not a ground for exclusion: Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 per McHugh J at [51].

1. The submissions in support of the objection included that there was no reference to Mr Kamali at all in Ms Bishop's first statement. For the Crown, however, it was pointed out that the first statement made specific reference to the notes made by her on 21 April 2011 and those notes do in fact include reference to the accused Kamali. In fairness to the accused, the notes referring to him do not mention a fire, or activities relating to a fire.

1. The Crown submissions also countered the assertion in the submissions for Mr Kamali that Ms Bishop compiled her notes of 21 April 2011 by reference to both her post-it notes and the copy of the nominal roll. It was pointed out that Ms Bishop's evidence was that she only used the nominal roll to ensure she had the correct spelling of names (3rd statement at [12]; Pre-Trial T45; T333; T344-345). In relation to the assertion of contamination, the Crown submitted, in effect, that regardless what appeared in the notes Ms Bishop made on 21 April 2011, there is no basis to believe that anything that was not based upon her own personal observations and identification of an accused made its way into her police statements. The contrary was not put to her in cross-examination on the voir dire. Her evidence included that she was not in any way influenced by statements made to her by other officers of Serco who were present on 20 April 2011 (Pre-Trial T327).

1. The Crown referred to the voir dire evidence of Ms Bishop that there were occasions during the course of the events on 20 April 2011 when other Serco officers identified a detainee by name. But she did not recall a particular officer identifying Mr Kamali to her and she added that she "would have recognised him" anyway (Pre-Trial T42).

1. The Crown submitted, in essence, that the reality was that what appeared in [8] of the second statement by Ms Bishop was a product of her own recall, being prompted by her notes of 21 April 2011. Comments written against Mr Kamali's name in the nominal roll by other officers are not reflected in that paragraph; for example, there is no mention of him having been involved with fire extinguishers as such notes by other officers suggest.

1. Criticism of Ms Bishop's evidence on the basis that she could not recall any specific prior dealing with Mr Kamali was submitted to have no relevance to the present issue in that such failure of recollection was explicable and did not detract from the probative value of her evidence.

1. Finally, the Crown submitted that there would be no inhibition of the ability of defence counsel to effectively cross-examine Ms Bishop, a basis upon which it has been asserted there would be unfair prejudice if the evidence were to be admitted. It was open to counsel to cross-examine Ms Bishop upon the basis that she did not make any note against his name in the nominal roll and this would not necessitate disclosure of the fact that some other officer(s) did make entries against his name.

1. The Crown submitted that the binding authority upon this Court was R v Shamouil, not Dupas v The Queen, but even applying the more stringent requirements of the latter the evidence would not be excluded. It was also submitted that this was not the type of case alluded to by Simpson J in R v Shamouil at [56], where the evidence was completely incapable of having any probative value.

Determination

1. The first question in the assessment of the issue posed under s 137 is the probative value of the evidence. That involves identification of the "fact in issue" the probability of the existence of which could be affected by the evidence in question: R v Mundine [2008] NSWCCA 55; (2008) 182 A Crim R 302 at [34] per Simpson J.

1. The fact in issue is whether the accused Kamali was involved in detaching chains securing rubbish bins to the laundry and then moving those bins onto the soccer field in the Fowler Compound and emptying them of their contents. Someone set fire to the rubbish almost immediately. I take it that the Crown will be inviting the jury to infer either that this was the purpose of the rubbish being emptied onto the soccer field, or that, at least, Mr Kamali was involved with many others in the violent disruptive, destructive and threatening conduct that was occurring. The Crown relies upon this as supporting its contention that there was a common purpose to demonstrate and/or protest dissatisfaction with the circumstances of the participants being detained within the VIDC. It also relies upon this as supporting its contention that the accused Kamali used unlawful violence for that common purpose. It relies upon the definition of "violence" in s 93A of the Crimes Act 1900 (NSW) that includes "violent conduct towards property".

1. Ms Bishop provides direct evidence of Mr Kamali being involved in the activity just described. The evidence, therefore, could rationally affect the assessment of the probability of the existence of the fact in issue to a significant extent.

1. Ms Bishop's nomination of Mr Kamali being involved in this activity is claimed to be based upon her recognising him as a person previously known to her. She had been employed as a Client Service Manager, and previously as a Client Service Officer, at the VIDC for about three and a half years as at 20 April 2011. In her then current position her responsibilities included supervision of the Fowler Compound "maintaining detainees welfare and providing a safe and secure environment" (statement of 24 April 2011 at [5]). She also said in that statement:

[8] As a result of my duties I have gained a good relationship with the clients within Fowler and would know most of them by face, but may not be able to recall their exact names because of the difficulty of their pronunciation. Given the nature of my work, I have daily dealings with most of the clients within Fowler. Many of the clients within Fowler have been there for a considerable time.

1. The accused Kamali had been held at the VIDC since 27 March 2010 (tab 5 of trial Exhibit A).

1. The nature of the dealings Ms Bishop had with detainees on a daily basis appear to have been quite routine. She nominated examples such as requests for a new mattress or an extra towel (Pre-trial T39.34). There were about 155 detainees being kept in the Fowler Compound at the relevant time. In re-examination on the voir dire (Pre-trial T83) she confirmed that she recognised Mr Kamali as at April 2011. She readily agreed that other staff had assisted her on the night of 20 April in identifying some of the detainees involved in the disturbance and she named some of them. However, in the course of answering questions on this topic she added "I know Kamali Alireza" (Pre-trial T83.48). It is unsurprising that Ms Bishop was unable to recall specific dealings that she had with Mr Kamali because they were routine and unremarkable and, accordingly, I do not think that her inability to do so necessarily detracts from the probative value of her evidence.

1. The broad proposition for which it is contended that there has been contamination seems to be that because Ms Bishop became aware that other Serco officers claim to have seen Mr Kamali involved with fire extinguishers, this has influenced her, perhaps subconsciously, to make a note to that effect in her two-page list. The submission is that this, and the general process of taking down notes at the time of the disturbance at VIDC in the general company of other staff, has so contaminated the evidence as to make it unfairly prejudicial.

1. The claim by Ms Bishop to have confined her use of the nominal roll to obtaining the correct spellings of names is difficult to determine. On the one hand, it appears to be contrary to what she said in her more contemporaneous statement of 24 April 2011 at [59] quoted above. The note endorsed by somebody else on the nominal roll ("Extinguishers") supports the inference that she simply transferred information from the nominal roll as to the type of activity a detainee was involved in to her two-page list, particularly given that Ms Bishop makes no claim to have seen Mr Kamali herself as being involved with fire extinguishers. The spellings of names on the two-page list do not all conform to the spellings on the nominal roll, although the differences are fairly trivial. The second half of the two-page list includes the names of clients in alphabetical order, an unlikely occurrence if Ms Bishop was solely making a hand-written compilation of names from assorted post-it notes.

1. On the other hand, there are notes made by other staff on the nominal roll that were not transferred into Ms Bishop's two-page list. One example of this relates to Mr Parhizkar. Ms Bishop's writing against his name on the nominal roll was "Main. Roof. Tiles at staff, phone, office". Another staff member had written:

"Trashing Hughes compound"

1. Hughes Compound adjoins Fowler Compound, and the latter is where Ms Bishop made her observations. What appears in the two-page list against Mr Parhizkar's name is:

"Roof. Tiles at staff etc (Main). Shop."

1. The note reflects only what Ms Bishop wrote herself. Ms Bishop also did not include in her two-page notes two detainees about whom other staff had made notes on the nominal roll but she had not (Bashir Rahimi and Kamran Rasuliniyah).

1. The probative value of the evidence set out in [8] of Ms Bishop's second statement might well be regarded as of less weight, or less reliability, because of the fact that it was something only disclosed in that statement, and not her two page list of 21 April 2011 or in her first and most contemporaneous statement of 24 April 2011. But that is a matter for the jury to evaluate. On its own, it does not mean that the evidence is so lacking in reliability that it is incapable of acceptance, or that there is little chance of its acceptance.

1. In considering the reliability of Ms Bishop's evidence I have gone beyond the constraints upon my assessment of its probative value as set out in Shamouil. Ms Yehia accepted that I am bound by that authority but I have gone beyond it after having determined, in accordance with Shamouil what my ultimate conclusion will be, out of recognition of the very real possibility that this authority will come to be reconsidered by the Court of Criminal Appeal in the light of Dupas. In my view, whether one proceeds in accordance with Shamouil or with Dupas, the ultimate conclusion is the same.

1. One aspect of the asserted unfair prejudice is that the jury might give the evidence more weight than it properly deserves. Here, as Ms Yehia submitted, the weight that could or should be given to the evidence falls for me as the trial judge to assess: R v Mundine at [44] per Simpson J; Dupas v The Queen at [78]. In my view it would be well open to the jury to assign significant weight to the evidence. In making her statement of 7 February 2012, Ms Bishop had access to notes she made on 21 April 2011, within 24 hours of the disturbance at the VIDC. I understand the effect of her evidence to be that those notes prompted her to recall further incidents that she observed during the disturbance and/or to name further detainees as being involved. The evidence in question falls partly into both categories, perhaps more into the latter.

1. There might be reason for the jury to doubt the reliability of Ms Bishop's evidence concerning Mr Kamali and the rubbish bins because of her failure to mention it in her first statement. However, the jury might well be prepared to accept that there was so much going on at the VIDC on 20 April 2011 that it would be understandable that she might inadvertently omit to mention some of the things she had witnessed. Her evidence on the voir dire was that she tried to not to think about the events in the period between her first and second statements (Pre-trial T339.40). Accordingly, the jury might well accept that when her mind returned to the events, with some prompting from the notes she made on 21 April 2011, she had a genuine recollection of further matters, including the incident in question and the involvement of the accused Kamali in it. She cannot have been solely relying upon and simply parroting what was in the notes because what she set out in par [8] of the statement she made on that occasion goes well beyond them.

1. Ms Bishop's claim about Mr Kamali's role in emptying the contents of rubbish bins onto the soccer field, with somebody then setting the rubbish on fire, is consistent with the evidence of four other witnesses in terms of the activity she said he was engaged in: statement of Simon Atachparian of 22 April 2011 at [53]; statement of John Tinline of 15 June 2011 at [37]; statements of Nathan Kiner of 23 April 2011 at [15]-[16] and 6 June 2011 at [8]; and statement of Michael O'Connor of 23 October 2012 at [11]-[12]). But she is only supported by one of those witnesses as to Mr Kamali being involved in it (Mr Atachparian).

1. This aspect is something that makes Ms Bishop's evidence potentially more significant in its probative value. But it also has the ability to detract from it if the witnesses who did not nominate Mr Kamali were well acquainted with him and would have been expected to confirm his involvement if indeed that was the case.

1. These possible frailties in the evidence of Ms Bishop on this topic are matters that are well within the capacity of the jury to properly evaluate. Even if the submissions of Ms Yehia raise the issue of contamination in a general, rather than particular, sense, collusion is a matter within the life experience of members of the jury and not one on which the court has special knowledge. In addition to R v Shamouil, I have had regard, in so far as they shed light on evidence of this nature, to the line of cases considering warnings in relation to unreliable evidence under s 165 of the Evidence Act (R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166 and following). In particular, Sperling J (Santow JA and Simpson J agreeing) held in R v El-Azzi [2004] NSWCCA 455 at [312] that:

There is nothing about a motive to lie or to give biased evidence which a jury needs to be told in order to appreciate relevance to the credibility of the witness. The same can be said of contamination of a witness's evidence.

1. I am not persuaded that the asserted contamination issue is of any real concern. I am satisfied that, with appropriate directions as to the need to carefully evaluate evidence of this nature, that there is little, if any, danger of unfair prejudice on account of the jury giving the evidence more weight than it properly deserves.

1. I am not persuaded that defence counsel will be impeded in challenging Ms Bishop's identification of Mr Kamali as having been involved in the event described in par [8] of the 7 February 2012 statement because of the danger of disclosing in cross-examination what other staff members had written on the nominal roll to which she had recourse. If it was the case that Ms Bishop had blindly transferred all of the information recorded by both herself and other staff members onto her two-page list and then used all of that information to compile her police statements, then the reliability of her evidence could be seriously questioned on this basis in the course of cross-examination. But a comparison of the nominal roll notations in their entirety with the two-page list demonstrates that this is not the process she engaged in. If defence counsel sought to suggest that she had done this in relation to Mr Kamali, then it would appear open to the Crown to counter the suggestion by inviting a complete comparison of the two documents.

1. The real question affecting the reliability of Ms Bishop's evidence concerning the accused Kamali is the delay in disclosing it. But even if counsel chooses to pursue the type of cross-examination I have just referred to, the only note in relation to the accused Kamali that could have contaminated the evidence of Ms Bishop is "Extinguishers". It could be made patently obvious to the jury that the Crown does not assert at all that Mr Kamali was involved with any activity with fire extinguishers and that the note made by some unidentified staff member has no evidentiary value.

Conclusion on the objection to Ms Bishop's evidence by the accused Kamali

1. The evidence is admissible.

Objection by the accused Amir Manafi Bejoushin

1. On behalf of the accused Bejoushin there is an objection to the same evidence objected to by the accused Kamali, that is par [8] of Ms Bishop's second statement. Mr Jankowski, counsel for Mr Bejoushin, adopted the submissions of Ms Yehia and made some brief further submissions.

1. It was contended that markings made by Ms Bishop and other Serco officers on the nominal roll used by Ms Bishop in compiling her two page list exhibit certain features against the entry for Mr Ali Abdollahi that raise "a question of contamination". The contention has no merit. The same can be said about the subsequent reference in the submissions to the endorsement of initials "S.A." against the entry for Mr Abdollahi. Reference to a single entry in the nominal roll relating to some other accused does not support the contention that there is contamination affecting Ms Bishop's evidence concerning Mr Bejoushin.

1. Specifically in relation to Mr Bejoushin, attention was invited to the notation by a Serco officer, other than Ms Bishop, on the nominal roll against the entry for him, "helping to light fires in compound" and the similarity of it with the entry made by Ms Bishop on her two page list:

MANAFI BEJOUSHIN Amir: - involved with fire.

1. The point was not further developed, but I assume the contention is that Ms Bishop's account in [8] of her second statement of the involvement of Mr Bejoushin in dragging wheelie bins and emptying their contents onto the soccer field is potentially contaminated by her having seen the entry made on the nominal roll by some unidentified Serco officer. Again, the point does not have merit. This claim of "contamination" ignores the fact that Ms Bishop had made a note herself on the nominal roll, "Fire", against Mr Bejoushin's name. The additional note by some other Serco officer against his name, "helping to light fires in compound", does not appear on the photocopy of the roll that Ms Bishop took home to assist her making her two-page list.

1. The submissions contend that Ms Bishop's evidence concerning Mr Bejoushin has "little probative value" because of the fact that he was not nominated in her account of detainees dragging rubbish bins onto the soccer field in her first statement and first nominated him as being so involved in the statement made some 10 months later. Further, she did not include any reference to his clothing, height, build, hair, hairstyle, hair colour or any distinguishing features.

1. The delay in Ms Bishop's nomination of the involvement of Mr Bejoushin is a matter well within the capability of the jury to evaluate. It would be open to them to regard the evidence as being of value, notwithstanding the delay. Whether the jury will so regard the evidence is presently beside the point.

1. The fact that Ms Bishop did not provide a description of the appearance of Mr Bejoushin is of no moment. It appears that she recognised him; it would be odd if she felt it necessary to also provide a description of him. True it is that she provided descriptions in her first statement for other detainees she claimed to have recognised. But the fact that she did so in respect of other persons she nominated does not detract from her claimed recognition of Mr Bejoushin.

1. Mr Jankowski made a similar submission to Ms Yehia about Ms Bishop's inability to nominate a specific dealing with Mr Kamali prior to 20 April 2011. The only difference in Mr Bejoushin's case was that Ms Bishop was never asked. Assuming, as Mr Jankowski suggested, that her response would have been the same, I do not regard the point as of any significance for the reason I indicated earlier in relation to Mr Kamali.

1. Where the submissions of Ms Yehia were otherwise adopted by Mr Jankowski, my reasons set out earlier equally apply.

1. My conclusion that the evidence of Ms Bishop concerning Mr Bejoushin is admissible.

Objection on behalf of the accused Mehdi Viasi

1. The evidence of Ms Bishop set out in [8] of her statement of 7 February 2012 is also the subject of the objection by Mr Webb, counsel for the accused Viasi. In his case, there is the entry in the two-page list made on 21 April 2011 by Ms Bishop:

VIASI Mehdi: - fire starting

1. There is then the fact that there is no mention of Mr Viasi in the statement of 24 April 2011. Then there is the claim in her second statement that, for convenience, I will repeat:

[8] I refer to Amir Manafi Bejoushin in notes [the two-page list] as being involved with fire, by this I meant that I saw him with Kamili [sic] and Viasi. All three pulled at the bins which were chained to the railing outside the laundry. They pulled the bins down to the flat part of grassed area all three helped each other push the bins over and shook the bins until all the contents had fallen out onto the ground. Within a minute of this happening the contents were on fire.

1. Mr Webb made submissions that involved criticisms and observations about unrelated notes on the nominal roll and entries in Ms Bishop's two-page list. At best, they go to an issue of the general reliability of the evolving process of her making a record of what occurred but do not, I believe, have any real bearing upon the present issue. As to the point of general issues of "contamination", I have addressed this in relation to the submissions of Ms Yehia.

1. It was submitted to be "crucial" that whilst Ms Bishop said in her first statement that she included entries in her two-page list of things other staff had told her, she did not attempt to distinguish those things from things she had witnessed herself.

1. Mr Webb observed that there was no explanation in relation to the rubbish bin activity as to "why three people would be nominated in her first statement and three different individuals in a second statement". This was characterised as a "direct conflict between her first account and her second". I do not understand Ms Bishop's evidence to be that there were only three people involved in the activity of dragging rubbish bins onto the soccer field and emptying their contents. Another staff member, Mr Nathan Kiner, referred to their being six to eight detainees involved in such activity (statement of 6 June 2011 at [8]). Moreover, in her first statement, Ms Bishop said that she saw the detainees Chenarjaafarizad, Ali and Feili dragging bins "from the front of the Clarence building". In the second statement she said that the detainees Bejoushin, Kamali and Viasi obtained bins that were "chained to the railing outside the laundry". As the evidence presently stands, she has described two different groups, each of three detainees, obtaining bins from different (albeit slightly) locations.

1. It was submitted that "the most obvious possibility" was that when making her second statement Ms Bishop had adopted an entry in her two-page list and, perhaps something said about Mr Viasi's involvement in a list prepared by three other Serco officers (O'Connor, Kiner and Atachparian). The latter is purely speculation; she was not asked on the voir dire whether she had seen that other list. As to the former, her evidence was that she was asked to elaborate upon certain matters with reference to her two-page list and she did so, including in relation to Mr Viasi. Also as to the former, the entry in her two-page list is consistent with what she herself had written against Mr Viasi's name on the nominal roll. There is no writing by any other staff member against his entry on that roll.

1. Criticism was made of Ms Bishop as having "avoided answering whether she had actually seen a fire lit or not by Mr Viasi for several questions before conceding that she hadn't". I have re-read the relevant passage of the transcript (Pre-trial T65-66). The criticism is unjustified.

1. The same criticism as made by others about Ms Bishop's inability to identify any specific prior dealing with Mr Viasi was included in Mr Webb's submissions. I take the same view of it as I have in relation to the others.

1. Finally, there was a similar submission made about the potential for unfair prejudice in that a thorough testing of Ms Bishop's evidence in cross-examination would involve exposing the notes and comments of other Serco staff, some unidentified, as to what it had been claimed Mr Viasi had been seen to do. My conclusion on this subject has been set out earlier.

1. The evidence of Ms Bishop concerning Mr Viasi is admissible.

Objection on behalf of the accused Kamelledin Shahsawari

1. Mr Little, counsel for the accused Shahsawari, objected to a different aspect of the evidence of Ms Bishop; that which is set out in [46] of her statement of 24 April 2011. In the preceding paragraphs she referred to the activity involving the bringing of materials onto the soccer field and the lighting of a fire. She continued:

[46] I then saw CHENAR JAFFARIZAD, FEILI, DADASH and a male person I know to be Kamelledin SHAHSAWARI (SHAHSAWARI) all holding foam fire extinguishers running up onto the basket ball court and proceed to spray us with the foam. In the process we all got covered in foam. I specifically recall FEILI spraying Matt GIBBS in the face and body.

1. The submissions recount the process described in Ms Bishop's third statement and her voir dire evidence as to how she made notes on post-it notes, a copy of the nominal roll, her two page list and then her statements.

1. The nominal roll entry for Mr Shahsawari does not have endorsed against it any writing or other marks in blue pen. I am satisfied for this reason that anything appearing there was not made by Ms Bishop. She confirmed this in her third statement by not including reference to notes made against the Shahsawari entry in the list of writing on the nominal roll she identified as hers.

1. The nominal roll entry for Mr Shahsawari has endorsed upon it a tick mark and the words "Extinguishers in Fowler".

1. The two-page list made by Ms Bishop at home on 21 April 2011 includes:

SHAHSAWARI Kamelledin: - fire - extinguisher

1. Mr Little submitted that the unfair prejudice in his client's case is that to effectively attack the weight of Ms Bishop's evidence requires revelation that another unidentified Serco officer identified Mr Shahsawari as being involved with "extinguishers in Fowler".

1. The statement in which the evidence concerning Mr Shahsawari is set out was made less than four days after the event when it could be sensibly expected that her observations would still be fresh in her mind. The probative value of the evidence is enhanced for that reason. The prospect of contamination is greatly reduced for that reason. If counsel sought to pursue an attack upon Ms Bishop's reliability on the basis of an entry made by somebody else in the nominal roll, then the jury could be directed along the lines I have earlier indicated.

1. The note in the two-page list that is not consistent with the entry in the nominal roll, "fire", suggests the possibility that Mr Shahsawari was the subject of a post-it note that Ms Bishop failed to transfer to the nominal roll while in the office at VIDC. That this might have occurred accords with her evidence. Alternatively, it is possibly consistent with her not having made a note at all on a post-it note, but simply having a recollection of the event.

1. I am not persuaded that the probative value of this evidence is outweighed by a danger of unfair prejudice. The evidence is admissible.

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Decision last updated: 02 May 2013