R v Abdollahi (No 7)

[2013] NSWSC 480

Supreme Court

New South Wales

Medium Neutral Citation:	R v Abdollahi (No 7) [2013] NSWSC 480
Hearing dates:	5 March 2013
Decision date:	13 March 2013
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Leave to attempt to revive memory of witness granted
Catchwords:	EVIDENCE - witness - use of document to revive memory or witness - document contemporaneous to relevant events - revival in conference
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	R v Abdollahi (No 6) [2013] NSWSC 479
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 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 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. On 5 March 2013, I granted leave to the Crown to attempt to revive the memory of an important prosecution witness, Ms Susan Bishop. These are my reasons for granting that leave.

1. Ms Bishop commenced to give her evidence on Monday 4 March 2013. I have referred to her evidence in a previous judgment concerned with the admissibility of certain aspects of it: R v Abdollahi (No 6) [2013] NSWSC 479. Reference should be made to that judgment for my description of the process of note-taking by Ms Bishop prior to making her first statement on 24 April 2011. She made further statements on 7 February 2012 and 7 February 2013.

1. Towards the end of Ms Bishop's evidence on 4 March 2013, the Crown Prosecutor embarked upon questioning her about the notes she had made. There was an objection taken to this. In the absence of the jury it was indicated that the Crown was laying the ground for an application for Ms Bishop to use the notes in an attempt to revive her memory.

1. During the course of submissions it emerged that the Crown sought to have Ms Bishop use both her notes on the nominal roll and two-page list as well as her statements of 24 April 2011 and 7 February 2012.

1. Section 32 of the Evidence Act 1995 (NSW) provides, relevantly, that a witness cannot, in the course of giving evidence, use a document to try to revive his or her memory unless the court gives leave. The court is required to take into account whether the witness will be able to recall the matter in question adequately without using the document and whether so much of the document as the witness proposes to use was written or made by the witness when the events recorded in it were fresh in his or her memory.

1. It is also necessary to have regard to s 192 of the Evidence Act. In this case, the matters listed in (b), (c) and (d) of s 192(2) are most relevant. They require the court to take into account the extent to which granting leave would be unfair to a party or to a witness; the importance of the evidence in relation to which the leave is sought; and the nature of the proceedings.

1. Ms Bishop had given evidence of the involvement of various detainees in the Fowler Compound being involved in various activities in the course of the disturbance on 20 April 2011. The evidence generally in the trial is to the effect that there were many things happening, sometimes simultaneously and in various locations around the compound. The scene appears to have been quite chaotic and, for the Serco staff, stressful and at times frightening. It is understandable that no single Serco officer saw everything that was occurring and it is also understandable that an officer who saw multiple events would have difficulty recalling each and every event and the names of any detainees who they recognised as being involved.

1. Ms Bishop referred to various men on the roof of the Macquarie Building, some of who were throwing roof tiles at staff and various objects in the compound. She saw at one point a stampede of detainees who were endeavouring to join those on the roof. Whilst she said in her statement of 7 February 2012 (at [7]) that the accused Haidari was involved at that point in attempting to break some barrier tape and pushing her, she failed to recall it in her evidence (T859). Importantly, whilst there was no mention of this incident in her more contemporaneous statement of 24 April 2011, there was mention in her notes on the nominal roll ("Roof") and in her two-page list ("Roof - tape. Pushed Staff (main)").

1. Ms Bishop's account continued with her recollection of the accused Feili misconducting himself with a fire extinguisher (T862); the accused Chenarjaafarizad damaging telephone booths (T863); the accused Parhizkar throwing tiles from the roof (T863-864); unidentified detainees throwing food trays from the Clarence Building (T865); and three accused, Chenarjaafarizad, Ali and Feili, moving rubbish bins from the Clarence Building onto the soccer field where the contents were emptied and set on fire (T866-871).

1. Ms Bishop then gave evidence of four detainees emptying the contents of fire extinguishers and then throwing them towards staff, but she could not recall who they were (T871; 874-875). In her statement of 24 April 2011 (at [46]) she said these men were the accused Chenarjaafarizad, Feili and Shahsawari, and another detainee, Dadash.

1. Three men then moved a picnic table onto the soccer field where it was set on fire. Ms Bishop nominated the men as the accused Chenarjaafarizad, Ali and Feili (T872).

1. The next event Ms Bishop recalled was some detainees dismantling soccer goal posts and throwing pieces like spears towards staff. However, she could not recall who did this (T872-873). In her statement of 24 April 2011 (at [44]) she nominated them as the accused Chenarjaafarizad, Ali and Feili.

1. Another event mentioned in a prior statement (7 February 2012 at [8]) but not referred to in Ms Bishop's evidence was that the accused Bejoushin, Kamali and Viasi moved rubbish bins from beside the laundry to the soccer field where their contents were emptied and set alight.

1. The objection to the Crown being granted leave for Ms Bishop to use a document in an attempt to revive her memory was put on a number of bases. Ms Yehia SC, on behalf of the accused Kamali, referred to the chronology of note-making by Ms Bishop and, in essence, contended that there would be unfairness arising from the post-it notes no longer being available and because the nominal roll upon which Ms Bishop made notes also contained notes by other officers. In short, Ms Yehia raised similar issues as she did in support of her objection to the admissibility of Ms Bishop's evidence insofar as it concerned Mr Kamali.

1. There were also objections to the grant of leave by counsel for the accused Shahsawari, Haidari, Viasi, Chenarjaafarizad, Feili and Ali.

1. I declined to grant leave to the Crown in respect of the incident involving the removal of rubbish bins from the laundry allegedly by the accused Bejoushin, Kamali and Viasi. Ms Bishop did not refer in her evidence to any such event, let alone claim to be unable to recall who was involved in it. She referred to only one incident involving rubbish bins being moved onto the soccer field, and that was in relation to three men moving them from the Clarence building. Further, the first time Ms Bishop referred to this incident was in a statement made some 10 months after the event. Although it is not necessarily determinative, it is a highly relevant consideration that statement cannot be regarded as having been made when the "events recorded in it were fresh in ... her memory": s 32(2)(b)(i).

1. I granted leave in respect of the incident involving goal posts and the accused Ali, Chenarjaafarizad and Feili; the involvement in discharging and throwing fire extinguishers of the accused Chenarjaafarizad, Feili, Shahsawari and the other man, Dadash; and the incident during the stampede of detainees towards the roof involving the accused Haidari. These were each matters that were referred to in Ms Bishop's statement of 24 April 2011, or in her earlier notes, when it can reasonably be expected that the events were still fresh in her memory. The process of note making by Ms Bishop does not appear to me to mean that there would be relevant unfairness in granting leave.

1. In relation to the matters in s 192, the evidence of Ms Bishop in these respects is clearly important to the prosecution. I bore in mind the nature of the proceedings; being criminal, the consequences for the accused if convicted are serious. I was not persuaded that granting leave would involve unfairness, in the relevant sense, to any party, or to the witness.

1. The Crown placed some reliance upon Ms Bishop's psychological state. There is material within subpoenaed documents that indicates that she is suffering from Post Traumatic Stress Disorder and that she tries not to think about the events of 20 April 2011 but tries to block them out of her memory. Such matters may explain the difficulty she has in recalling every incident she witnessed and every person she recognised as being involved. It was contended that to not grant leave to allow Ms Bishop to refresh her memory would be unfair to her. However, that is not the unfairness to which s 192 refers. This aspect is relevant only by way of background and was not something that contributed otherwise to my conclusion.

1. I was concerned that having the Crown put the notes and the first statement before the witness in the presence of the jury was fraught with difficulty. The notes contain reference to a variety of accused with a variety of incidents and, particularly in the case of the nominal roll, contain the notes of other Serco officers. It was my view that there would be no unfairness to anyone if the Crown Prosecutor undertook that process in conference with the witness. The only counsel who raised any concern was Ms Yehia and that was simply to confirm that there should be no attempt made to revive Ms Bishop's memory with the use of her statement of 7 February 2012. That was the effect of my ruling and one that the Crown Prosecutor understood.

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Decision last updated: 02 May 2013