Citation: R v Abdollahi (No 2) [2013] NSWSC 475
Court: Supreme Court of New South Wales
Date: 11 February 2013
Judge(s): R A Hulme J
Background
A serious disturbance broke out at the Villawood Immigration Detention Centre (VIDC) on 20 to 21 April 2011, resulting in riot and affray charges against 13 detainee accused. The incident began in the Fowler Compound on the morning of 20 April and escalated significantly after midnight, spreading into the Hughes Compound and other areas. Buildings were burned and substantial property damage occurred.
In a companion ruling delivered earlier the same week (R v Abdollahi (No 1) [2013] NSWSC 474), Hulme J held that evidence of events occurring after VIDC staff were evacuated from Fowler Compound was generally inadmissible, because the Crown could not identify any of the accused (with one exception) as participants in those later events. However, his Honour left open the possibility that evidence derived from a later time, which clearly bore on events already in existence or initiated at or before the evacuation, might still be admissible.
The present ruling resolved a discrete evidentiary objection: whether approximately five minutes of aerial video footage captured by a police helicopter, commencing at 11.44pm and focused on the Fowler Compound, should be admitted despite being recorded after the point at which the Crown could establish the accused's involvement.
Legal Issues
- Whether the helicopter footage, which captured events after staff were evacuated from Fowler Compound, was relevant to the common purpose element of the riot charges under s 55 of the Evidence Act 1995 (NSW)
- Whether the probative value of the footage was outweighed by the danger of unfair prejudice, warranting exclusion under ss 135 or 137 of the Evidence Act 1995 (NSW)
Decision
The Crown sought to tender the first five minutes of police helicopter footage, which showed multiple buildings in the Fowler Compound well ablaze, along with approximately 30 to 45 detainees on the ground and rooftop. The accused objected that two of the fires visible in the footage (the gymnasium and library/recreation room) must have been lit after the staff evacuation, and that the footage was therefore inadmissible under the earlier ruling.
Hulme J examined the Command Room Log, which recorded entries at 11.39pm noting that the internet room and gym were on fire, and at 11.50pm recording a further building alight. Given the multiple variables affecting the accuracy of log timing (the lag between events occurring, staff observing them, communicating to the command room, and entries being recorded), his Honour found the fires in question were likely started no more than approximately 15 minutes after the staff evacuation, which occurred at roughly 11.15 to 11.20pm.
On relevance, his Honour held that the footage could rationally affect the assessment of the probability that a common purpose existed at or before the evacuation. It would be unrealistic to conclude that the atmosphere, attitude, and demeanour of participants changed materially in the short intervening period. Fires burning vigorously in the compound within half an hour of evacuation, and the conduct of detainees visible in the footage, were capable of bearing on whether the common purpose alleged by the Crown was already in existence at the time the accused were present.
On unfair prejudice, Hulme J found no basis for exclusion. The jury would already hear evidence of fires on the soccer field and in the Murray Unit, as well as significant displays of defiance and threatened violence. The additional evidence of two further buildings ablaze, and of detainees behaving in what the Crown described as a "celebrating" manner (though Hulme J characterised this more neutrally as waving toward the helicopter), did not create unfair prejudice that outweighed the footage's probative value, either individually or cumulatively.
Orders Made
No orders were made in this decision.
Key Takeaways
- Evidence captured after the point at which an accused's involvement can be established is not automatically excluded; a sufficient temporal connection to events already in progress at the relevant time can preserve its admissibility.
- Under s 55 of the Evidence Act 1995 (NSW), evidence is relevant if it could rationally affect the probability of a fact in issue, including an alleged common purpose in a riot charge, even if it post-dates the accused's proven participation.
- The Supreme Court applied a practical, contextual approach to timing, accepting that in chaotic situations, contemporaneous log entries may not precisely record when events occurred, and that a gap of roughly 15 minutes between the accused's proven involvement and the footage did not sever the requisite temporal connection.
- Where a jury will already receive evidence of similar conduct, additional evidence of comparable acts does not automatically attract exclusion for unfair prejudice under ss 135 or 137 of the Evidence Act 1995 (NSW); the court assessed the cumulative effect across both categories of objection before rejecting exclusion.
- The decision illustrates the limits of the companion ruling in R v Abdollahi (No 1): general exclusion of post-evacuation evidence does not extend to footage that bears on conditions or conduct that must have been initiated at or before the critical point in time.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 55, 135, 137
Cases:
- R v Abdollahi (No 1) [2013] NSWSC 474