Citation: R v Abdollahi (No 4) [2013] NSWSC 477
Court: Supreme Court of New South Wales
Date: 5 February 2013
Judge: R A Hulme J
Background
The accused, referred to here as the detainee, was charged with riot and affray in connection with events at Villawood Immigration Detention Centre on 20 April 2011. During that day, a number of detainees climbed onto the roof of the Macquarie Building within the centre's Fowler compound, making threats and gestures directed at staff below.
The Crown alleged the detainee and a co-accused (who had already pleaded guilty) acted together in furtherance of a common purpose: to protest their dissatisfaction with the conditions of detention. The Crown sought to admit several items of evidence against the detainee, all of which his counsel opposed.
The hearing concerned three specific evidentiary objections raised by defence counsel, each addressed as a discrete ruling by the trial judge ahead of the jury trial.
Legal Issues
- Whether statements made on the roof by both the detainee and his co-accused were admissible against the detainee as admissions made in furtherance of a common purpose under s 87(c) of the Evidence Act 1995 (NSW), when the witness could not identify which man made each utterance
- Whether evidence of a conversation between the detainee and a Serco operations manager, conducted through an interpreter of uncertain reliability, should be excluded under s 137 of the Evidence Act on the basis that its probative value was outweighed by the risk of unfair prejudice
- Whether evidence of a threat the detainee allegedly made against an imam should be excluded under s 137 on the basis that it risked deflecting the jury from a dispassionate assessment of the case
Decision
Issue 1: Roof utterances attributed to both men jointly
Hulme J was satisfied that the two men were, in all likelihood, physically close to each other when the statements were made. The witness described the utterances as coming from "them" rather than attributing them to one individual, which supported that inference. The judge found a common purpose to protest conditions of detention was sufficiently established by the fact that both men were on the roof together, both were yelling and gesturing, and one held a roof tile. Because the statements were made in furtherance of that common purpose, they were admissible against the detainee under s 87(c) regardless of which man actually spoke each utterance.
Issue 2: Interpreter reliability and s 137 exclusion
The defence argued that the conversation conducted through the interpreter should be excluded because the interpreter had been criticised for not accurately relaying everything said. Hulme J found that the concerns about the interpreter related principally to her having additional side-conversations with detainees that she did not relay back to the Serco officer, rather than to any inaccuracy in what she did interpret. The absence of a statement from the interpreter on the question of accuracy was noted but not treated as determinative. The judge concluded there was insufficient basis to find that any inaccuracy would create unfair prejudice outweighing the evidence's probative value. The evidence was admissible.
Issue 3: Threat against the imam
The defence submitted that the detainee's alleged threat to throw tiles at an imam if one were brought to the roof carried limited probative value and risked inflaming the jury by introducing a perceived religious dimension. Hulme J disagreed. The statement was capable of showing that the detainee was unwilling to negotiate and was committed to pursuing the common purpose. The judge saw no real risk that a jury would misuse the evidence, and found no unfair prejudice sufficient to outweigh its probative value. The evidence was admissible.
Orders Made
- Evidence admissible
Key Takeaways
- Under s 87(c) of the Evidence Act 1995 (NSW), statements made in furtherance of a common purpose are admissible against all participants in that purpose, even where a witness cannot identify which individual made each particular utterance.
- A common purpose need not be formally established before the disputed evidence is tendered; conduct at the time of the statements (such as both accused being on the roof together, gesturing and holding tiles) can be sufficient to demonstrate the existence of a shared purpose.
- Concerns about an interpreter's competence do not automatically trigger exclusion under s 137. The court distinguished between an interpreter who fails to relay everything said and one who inaccurately translates what she does relay; only the latter type of unreliability gave rise to a real risk of unfair prejudice.
- The absence of a statement from the interpreter herself on the question of accuracy was not treated as determinative by the Supreme Court in assessing whether s 137 required exclusion.
- Threatening statements directed at a third party not present at the scene can carry significant probative value where they tend to show a defendant's state of mind or unwillingness to desist from a common purpose, and will not necessarily be excluded under s 137 merely because of their potentially inflammatory content.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- Not stated