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Supreme Court 21 March 2013

R v Abdollahi (No 9)

[2013] NSWSC 482

Assault & violencePublic order & justice offences
CRIMINAL LAW PRACTICE AND PROCEDURE JUDGMENT BY DIRECTION NO CASE SUBMISSIONS CHARGE OF RIOT NO CASE TO ANSWER

Citation: R v Abdollahi (No 9) [2013] NSWSC 482
Court: Supreme Court of New South Wales
Date: 21 March 2013
Judge: R A Hulme J

Background

This decision arose from criminal proceedings against multiple accused following a significant disturbance at the Villawood Immigration Detention Centre on 20 April 2011. The alleged events occurred in the Fowler Compound and involved detainees throwing tiles from a rooftop, spraying and throwing fire extinguishers at staff, and ultimately setting fire to a staff office.

Three of the accused, each charged separately, made no-case submissions at the close of the Crown case. The charges were riot under s 93B of the Crimes Act 1900 (NSW), aiding and abetting riot, and affray. Each accused maintained a not guilty plea.

The prosecution relied primarily on the eyewitness accounts of Serco staff and at least one fellow detainee. The sufficiency and reliability of those accounts in connecting each individual accused to the alleged conduct formed the central issue for each application.

  • Whether, taking the Crown's evidence at its highest, a jury could possibly be satisfied beyond reasonable doubt of each accused's guilt.
  • Whether the evidence against the accused Kamali was capable of establishing that he personally used unlawful violence, as required for the offence of riot.
  • Whether the evidence against the accused Mosawi was capable of identifying him as the individual responsible for the acts alleged to constitute aiding and abetting riot.
  • Whether the evidence against the accused Haidari was capable of establishing that he used or threatened unlawful violence, as required for the offence of affray.

Decision

The legal standard. Hulme J applied the established test from R v R (1989) 18 NSWLR 74 and Doney v The Queen (1990) 171 CLR 207: it is a question of law for the trial judge to determine whether any evidence exists upon which a jury could possibly be satisfied beyond reasonable doubt. The judge must assess the evidence at its highest, in the manner most favourable to the Crown. A directed verdict is not warranted merely because a guilty verdict would be unreasonable; rather, the question is whether the evidence is legally capable of supporting one at all.

Kamali: riot. The evidence placed Kamali at or near the scene. One witness described him as "running around and shouting" but expressly stated he saw nothing particular that Kamali was doing, nothing in his hands, and no act beyond moving between locations. A second witness offered only a description so generic that it could have matched any number of other detainees. Hulme J held that this evidence was incapable as a matter of law of establishing that Kamali had personally used unlawful violence, as opposed to merely being present while others did so.

Mosawi: aiding and abetting riot. The Crown's case rested on the evidence of a single witness who identified an individual by a name she pronounced in a way that may or may not have corresponded to "Mosawi." That witness had a demonstrated general difficulty with the pronunciation of detainees' names throughout her evidence. Hulme J was satisfied that the evidence was incapable of establishing that the person she described was the accused Sayed Ibrahim Mosawi rather than another detainee.

Haidari: affray. The Crown conceded this point. The only evidence placing Haidari near the barrier tape during the disturbance was a witness's recollection of having "an image of him being right up near me when the rush occurred," with nothing further recalled. Hulme J held this was incapable of establishing the essential element of the affray charge, namely that Haidari used or threatened unlawful violence.

Orders Made

  • The jury was directed to return a verdict of not guilty in respect of the riot charge against the accused Kamali.
  • The jury was directed to return a verdict of not guilty on count 8 (aiding and abetting riot) against the accused Mosawi.
  • The jury was directed to return a verdict of not guilty on count 10 (affray) against the accused Haidari.

Key Takeaways

  • Mere presence at the scene of a riot, even combined with running around and shouting, is not sufficient evidence to establish that an accused personally used unlawful violence for the purposes of s 93B of the Crimes Act 1900 (NSW).
  • A no-case direction is a question of law, not of fact: the trial judge asks whether the evidence is legally capable of supporting a conviction, not whether a guilty verdict would be unreasonable on the facts.
  • Where a witness has a demonstrated general difficulty with the pronunciation of names, that difficulty can render identification evidence incapable of establishing that the accused, as opposed to another person, was the individual described.
  • Under the affray provision, evidence that an accused was physically nearby during a rush of people, without any further detail about their conduct, cannot establish the essential element of using or threatening unlawful violence.
  • In dismissing each application, the Supreme Court confirmed that the prosecution's evidence must be capable, at its highest, of connecting each accused individually to the specific conduct constituting the charged offence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 93A, 93B (riot and affray provisions)

Cases
- Doney v The Queen (1990) 171 CLR 207
- R v R (1989) 18 NSWLR 74