R v Abdollahi (No 8)

[2013] NSWSC 481

Supreme Court

New South Wales

Medium Neutral Citation:	R v Abdollahi (No 8) [2013] NSWSC 481
Hearing dates:	19 March 2013
Decision date:	19 March 2013
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Evidence allowed
Catchwords:	EVIDENCE - admissibility - character evidence - evidence of refugee status as relevant to character - passing security clearance as relevant to character - 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 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 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. HIS HONOUR: The next witness is Mr Jamie Patten who, I understand, is an officer of the Department of Immigration and Citizenship ("DIAC"). I am given to understand that he will give evidence of information contained in the records of that department as to the immigration status of the accused.

1. Ms Yehia, without objection by the Crown, proposes to adduce evidence that prior to 20 April 2011 her client had been placed on what is known as a "positive pathway"; in other words, he had established that he was a genuine refugee according to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. In terms of his immigration status, this is referred to as being placed on a positive pathway.

1. Ms Yehia also proposes to adduce evidence that her client subsequently satisfied a security clearance by the Australian Security Intelligence Organisation ("ASIO") and a character test, although she will refer to the latter as being concerned with "background" rather than "character".

1. This evidence is relevant to a question as to whether Mr Kamali would have a motive to protest his detention in the manner alleged by the Crown when the situation was that he had satisfied DIAC of his refugee status and, it may be inferred from the subsequent favourable findings, that he would have reason to be confident, as at 20 April 2011, that his prospects of being granted a Protection Visa and being released from immigration detention were good.

1. Earlier in the trial I indicated that in respect of the accused Shahsawari I would not permit evidence to be adduced that subsequent to 20 April 2011 he learned that he had also been placed on a positive pathway.

1. Now, Mr Shahsawari's counsel, Mr Little, has indicated that he proposes to adduce such evidence, not in relation to the question of whether his client would or would not have been motivated to participate in the events of 20 April as alleged by the Crown, but in relation to the question of his client's character.

1. Mr Smith seeks to do likewise; his client, Mr Abdollahi, also having received news subsequent to 20 April 2011 that he had been placed on a positive pathway.

1. Both Mr Little and Mr Smith accept that I may limit the use of such evidence to the question of their clients' character. Such discretion is available to me according to s 136 of the Evidence Act 1995 (NSW).

1. Mr Jankowski, counsel for the accused Bejoushin, has raised a slightly different aspect. He wishes to adduce evidence that his client received a satisfactory ASIO security clearance in 2012 on the basis that this would be relevant to his client's good character. Doing so would involve the inference that earlier he had been placed on a positive pathway. He has indicated that it will be made clear that the placement of Mr Bejoushin on that positive pathway was something that occurred some time subsequent to 20 April 2011.

1. The question raised is whether persons who came to Australia as "Irregular Maritime Arrivals" (the bureaucratic parlance for people colloquially referred to as "boat people" or "asylum seekers") and who subsequently satisfy Australian authorities that they are genuine refugees can rely upon that as supporting a contention that they are a person of good character, even in a limited respect. The limitation in this case is temporal in the sense that I have not been given any indication that any of the accused will be adducing evidence of good character prior to their coming to this country. It has been foreshadowed that there will be evidence that none of the accused has had any criminal conviction recorded since arriving in Australia.

1. Although I am presently doubtful as to whether acceptance by the Australian government of a person's claim to refugee status says very much about whether the person is of good character, it seems possible that counsel could make a submission that might persuade the jury to so find. For that reason I will not shut out counsel from making such a submission and will allow the evidence.

1. I will, however, give a direction at an appropriate time explaining in the cases of the accused Shahsawari, Abdollahi and Bejoushin, the limited use of the evidence. It will be necessary, so it seems to me, to contrast the use of the evidence in the case of the accused Kamali.

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Decision last updated: 02 May 2013