Citation: R v Abdollahi (No 6) [2013] NSWSC 479
Court: Supreme Court of New South Wales
Date: 6 March 2013
Judge: R A Hulme J
Background
Thirteen accused faced charges of riot and affray arising from a disturbance at the Villawood Immigration Detention Centre on 20 April 2011. The incident involved detainees climbing onto rooftops, setting fires, discharging fire extinguishers, and throwing debris at staff. The Crown case against each accused depended substantially on identification evidence from Serco staff who were present that night.
A key Crown witness, a Serco officer, had made notes on "post-it" slips during the disturbance, then transferred those notes to a "nominal roll" (a list of all detainees with photographs) while sheltering in another building after evacuation. She later made a photocopy of that roll and took it home, then used it to compile a two-page handwritten list of detainees and their alleged activities. After she left the original roll at the workplace, other unidentified staff also added their own annotations to it.
The witness subsequently made three police statements over nearly two years. Counsel for four of the thirteen accused objected to parts of her evidence, arguing that the note-making process had contaminated her identification evidence to the point where it lacked sufficient probative value or caused unfair prejudice under s 137 of the Evidence Act 1995 (NSW).
Legal Issues
- Whether the witness's identification evidence was so contaminated by the note-making process (including exposure to annotations by unidentified colleagues) that it lacked sufficient probative value
- Whether any residual probative value was outweighed by the danger of unfair prejudice under s 137 of the Evidence Act 1995 (NSW)
- Whether concerns about reliability or weight of the evidence were relevant to the s 137 probative value assessment, having regard to R v Shamouil and Dupas v The Queen
- Whether effective cross-examination of the witness on the contamination issue was possible without also revealing potentially prejudicial material (namely, that unidentified colleagues had separately identified the same accused)
Decision
The contamination framework: His Honour considered the competing approaches in R v Shamouil (which held that reliability is generally not relevant to probative value at the admissibility stage) and Dupas v The Queen (which allowed some consideration of reliability in extreme cases). The court proceeded on the basis that, even where reliability could theoretically be considered, the evidence here did not reach the threshold required to exclude it.
Objection concerning Kamali: The witness's two-page list referred to Kamali in connection with fire extinguishers, while her second police statement linked him to a bin-tipping incident described in an entry for a different detainee. His Honour found the evidence was not so contaminated as to lack probative value. Any cross-examination about the nominal roll annotations made by others could be managed by appropriate jury directions, and there was no basis to conclude that effective cross-examination was not possible.
Objections concerning remaining accused: His Honour applied the same reasoning across the objections raised for the other three accused. In each instance, the court examined the specific entries on the post-it notes, nominal roll, and two-page list, comparing what the witness herself had written against what others had annotated. Where an accused's entry on the nominal roll bore no annotation in the witness's handwriting, that supported the inference that her recollection derived from her own post-it notes or unaided memory rather than from contaminating notations.
Shahsawari (representative of the general reasoning): The witness's statement concerning this accused was made less than four days after the event, when recollections could reasonably be expected to remain fresh. The nominal roll entry for this accused contained no writing by the witness, reducing the prospect of contamination from others' annotations. The presence of the word "fire" in the two-page list, absent from the nominal roll entry, was consistent either with a post-it note not transferred to the roll, or with independent recollection. His Honour was not persuaded that probative value was outweighed by the danger of unfair prejudice, and the evidence was held admissible in each case.
Orders Made
- Evidence admissible
Key Takeaways
- The Supreme Court held that concerns about potential contamination of witness identification evidence, arising from exposure to annotations made by unidentified colleagues, did not render the evidence inadmissible where the contamination was not sufficiently established on the voir dire.
- Under s 137 of the Evidence Act 1995 (NSW), the court assessed probative value against the danger of unfair prejudice; where effective cross-examination remained available and appropriate jury directions could address residual risk, the balance did not favour exclusion.
- The timing of a witness's statements is a relevant consideration: evidence recorded close in time to events carries enhanced probative value and a reduced prospect of contamination.
- A careful comparison of successive documentary records (post-it notes, nominal roll, two-page list, and police statements) was central to the court's analysis of what the witness had independently observed versus what she may have absorbed from colleagues.
- Where cross-examination on contamination risks revealing that an unidentified third party made a similar identification, that circumstance alone does not establish that effective testing of the evidence is impossible, and is not sufficient to ground exclusion under s 137.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
- Evidence Act 1995 (NSW)
Cases
- Dupas v The Queen [2012] VSCA 328
- Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
- R v Abdollahi (No 1) [2013] NSWSC 474
- R v El-Azzi [2004] NSWCCA 455
- R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166
- R v Mundine [2008] NSWCCA 55; (2008) 182 A Crim R 302
- R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228