Citation: R v Abdollahi (No 5) [2013] NSWSC 478
Court: Supreme Court of New South Wales
Date: 11 February 2013
Judge(s): Hulme J
Background
The accused, a detainee at Villawood Immigration Detention Centre, was alleged to have engaged in threatening behaviour and caused property damage during a disturbance at the Fowler Compound on 20 April 2011. The Crown sought to lead evidence from a senior Serco operations manager who witnessed a person throwing a fire extinguisher through a staff office window and making a threatening charge toward staff.
The witness arrived on shift during the disturbance and, upon seeing a man he described as appearing intoxicated, asked a colleague who the man was. He was told the man's name, but his statement did not identify who provided that information. The witness then relied on that identification when describing the same person as being involved in two subsequent fire extinguisher incidents approximately an hour later.
Defence counsel objected to the witness giving identification evidence that the person involved in the fire extinguisher incidents was the accused, on the basis that the identification rested entirely on hearsay.
Legal Issues
- Whether the witness's identification of the accused was inadmissible hearsay under the Evidence Act 1995 (NSW)
- Whether any exception to the hearsay rule permitted the evidence to be admitted
- Whether, even if not excluded as hearsay, the evidence should be excluded under s 137 of the Evidence Act on the basis that its probative value was outweighed by the danger of unfair prejudice to the accused
Decision
Issue 1: Hearsay
The court found that the identification evidence was plainly inadmissible hearsay. The witness knew the person's name only because an unidentified third party had told him. No exception to the hearsay rule in the Evidence Act 1995 (NSW) applied to render the evidence admissible in that form.
The Crown argued that other witnesses, who would themselves give identification evidence placing the accused at an earlier incident, might establish a sufficient factual link. If that earlier incident was shown to involve the accused, the witness could then say the person at the fire extinguisher incidents was the same person. The court acknowledged this as a theoretical pathway but noted that, as matters stood at the time of the ruling, the necessary connection had not been established. The source of the identification relayed to the witness remained unknown.
Issue 2: Section 137 of the Evidence Act
The court held that even if the evidence were not excluded as hearsay, it would fall for exclusion under s 137 of the Evidence Act. Because the original source of the identification was unknown, the accuracy of the information could not be assessed. Admitting the evidence would place before the jury a highly incriminating piece of evidence whose reliability they had no means of evaluating, creating unfair prejudice to the accused.
Orders Made
- Evidence excluded
Key Takeaways
- Identification evidence that rests on an assertion made by an unidentified person is inadmissible hearsay, and the Evidence Act 1995 (NSW) contains no exception that rescues it.
- Where the original source of identification information cannot be identified, neither its accuracy nor its reliability can be assessed by a jury, engaging the exclusionary discretion under s 137 of the Evidence Act.
- A potential factual pathway through other witnesses does not cure inadmissibility at the time of ruling if the necessary evidential links have not yet been established.
- The court left open the possibility that other witnesses, if called and accepted, might collectively establish an identification chain that would allow the witness to give admissible evidence linking the person he observed to the accused by reference to continuity of observation rather than hearsay.
- Highly incriminating evidence carries a heightened risk of unfair prejudice when its reliability cannot be tested, reinforcing the operation of s 137 as a safeguard distinct from the hearsay rules.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- Not stated