Citation: R v Abdollahi (No 3) [2013] NSWSC 476
Court: Supreme Court of New South Wales
Date: 5 February 2013
Judge(s): R A Hulme J
Background
The proceedings arose from an incident on 20 April 2011 at the Villawood Immigration Detention Centre, where a number of detained persons were alleged to have climbed a fence and onto the roof of the Macquarie Building in the Fowler Compound. One accused, Ali Haidari, was named in the statement of a witness, Simon Atachparian, as having been among those observed on the roof.
During a Basha inquiry (a pre-trial voir dire process in which a witness gives evidence so the defence can assess it before deciding how to cross-examine at trial), Mr Atachparian appeared, when shown a photograph of Ali Haidari, to say that the person he had intended to describe was not Ali Haidari but another accused, Haider Hussein Ali. On re-examination by the Crown, the picture became murkier: Mr Atachparian suggested his identification error related to someone he saw running on the ground near the laundry, not the person he saw on the roof.
Counsel for Ali Haidari argued that this confusion rendered the identification evidence in paragraph 18 of Mr Atachparian's statement inadmissible. The Crown sought to have the evidence retained.
Legal Issues
- Whether identification evidence in a witness's statement became inadmissible because of apparent confusion about which accused the witness was identifying during a Basha voir dire examination.
Decision
The admissibility objection: Hulme J rejected the submission that the confused state of Mr Atachparian's evidence on the voir dire was sufficient to render the identification evidence in his statement inadmissible. The confusion emerging during cross-examination did not, on its own, cross the threshold required to exclude the evidence.
His Honour noted that the confused and somewhat contradictory evidence given during the Basha inquiry was properly a matter going to the reliability and accuracy of the identification. That is a matter for the jury to weigh at trial, not a basis for exclusion at the admissibility stage. The Crown was, however, put on notice to satisfy itself that Mr Atachparian was in a position to make the identification asserted in his statement before pursuing it at trial.
Orders Made
- Evidence admissible; objection to Mr Atachparian's identification evidence not upheld.
Key Takeaways
- Confusion or apparent inconsistency in identification evidence given during a Basha voir dire does not automatically render the underlying identification evidence inadmissible at trial.
- The Supreme Court drew a clear distinction between admissibility (whether the evidence may be placed before the jury) and reliability (how much weight the jury should give it); weaknesses in the latter do not necessarily defeat the former.
- Where a witness's voir dire evidence raises questions about the accuracy of an identification, those questions go to the weight and credibility of that evidence rather than to its admissibility.
- A Basha inquiry that reveals potential confusion about the identity of an accused may put the Crown on notice to confirm the witness can properly make the asserted identification, but does not by itself justify exclusion.
- No separate objection was taken to the general nature of the identification evidence in the statement; the ruling was confined to the specific question of whether the voir dire confusion warranted exclusion.
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated