Citation: R v Abdollahi (No 1) [2013] NSWSC 474
Court: Supreme Court of New South Wales
Date: 5 February 2013
Judge(s): R A Hulme J
Background
Thirteen detainees at the Villawood Immigration Detention Centre stood trial for riot and affray arising from a violent disturbance at the Fowler Compound on 20 to 21 April 2011. The disturbance involved detainees climbing onto rooftops, throwing roof tiles and fire extinguishers at staff, setting fires, and making threatening and aggressive statements toward Serco Immigration Services employees. Serco staff were evacuated from the Fowler Compound at approximately 11.15pm to 11.20pm.
After the evacuation, the disturbance continued. Unidentified detainees broke into the adjoining Hughes Compound and caused extensive fire damage to multiple buildings, including the medical centre and kitchen. Dramatic footage from a police helicopter and a television station captured the scale of the destruction.
The Crown could identify the accused as participants in events up to and around the evacuation, but could not attribute responsibility for post-evacuation events to any of the accused, with one limited exception. The Crown nonetheless sought to lead evidence of those subsequent events, and the defence objected.
Legal Issues
- Whether evidence of events occurring after the Serco staff evacuation was relevant to the charges against the accused under s 56 of the Evidence Act 1995 (NSW)
- Whether, even if relevant, that evidence should be excluded because its probative value was outweighed by the danger of unfair prejudice to the accused under s 137 of the Evidence Act 1995 (NSW)
- How the jury should be directed to address the gap left by the exclusion of post-evacuation evidence
Decision
Hulme J upheld the defence objection and ruled all evidence of events after the Serco staff evacuation inadmissible. The court's primary concern was relevance. The Crown did not rely on the post-evacuation events to identify any of the accused as participants in the earlier disturbance, and the subsequent conduct could not, in practical terms, establish that any of the accused shared the common purpose required for the offence of riot.
Even accepting a theoretical argument that post-evacuation events might illuminate the nature and extent of a common purpose among detainees broadly, the evidence said nothing about whether these particular accused shared that purpose. The court expressed grave doubt that the evidence cleared the basic relevance threshold in s 56.
On the question of unfair prejudice, the court found that the substantial and dramatic nature of the post-evacuation destruction, including raging fires captured on video, created a real risk that the jury would hold the accused responsible for a far graver incident than anything the Crown could prove against them. That danger was sufficient to exclude the evidence under s 137, even if relevance had been established.
Hulme J also addressed the practical consequence of the ruling. The jury would inevitably wonder what happened after the evacuation, and the court considered it necessary to convey to them, in some appropriate form, that the disturbance continued but that the Crown could not attribute blame to any individual because no staff were present to observe events. A direction would be required telling the jury that post-evacuation events had no bearing on the charges.
Orders Made
• All evidence of events subsequent to the evacuation of Serco staff from the Fowler Compound is inadmissible
• Evidence derived at a subsequent time which clearly bears upon events which must have been in existence, or initiated, at around or prior to that time (for example, video footage recorded after the evacuation of fires set at around or before the time of evacuation) is not excluded
• The jury must be directed that events subsequent to the evacuation have no bearing upon their consideration of the charges brought against any of the accused
Key Takeaways
- Post-evacuation evidence of riot-related destruction was excluded where the Crown could not connect that evidence to any of the accused, because its capacity to establish the common purpose element of riot was too attenuated to satisfy the relevance threshold in s 56 of the Evidence Act 1995 (NSW).
- Under s 137 of the Evidence Act 1995 (NSW), evidence of dramatic and large-scale destruction risks unfair prejudice where the jury cannot be expected to confine its reasoning to the conduct actually attributable to the accused.
- The exclusion of prejudicial post-event evidence does not automatically exclude all evidence derived from that later time period. Evidence recorded after a defined point, which clearly relates to events initiated before or around that point, may remain admissible.
- Where an evidentiary ruling leaves an obvious gap in the narrative presented to the jury, the Supreme Court considered it necessary to address that gap through a direction, rather than leaving the jury to speculate.
- The Crown's concession that post-evacuation evidence would be unduly prejudicial to the other accused, even where potentially relevant to one accused's state of mind, reflected the court's broader concern about managing joint trials where individual culpability varies significantly.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 56 (relevance), s 137 (exclusion of prejudicial evidence in criminal proceedings)
Cases: None cited in the judgment.