Citation: R v Abdollahi (No 11) [2013] NSWSC 484
Court: Supreme Court of New South Wales
Date: 11 April 2013
Judge: R A Hulme J
Background
The accused, a detainee at Villawood Immigration Detention Centre, faced charges of riot and, in the alternative, affray. The charges arose from events on the night of 20 April 2011, when significant disorder broke out in the Fowler Compound. Detainees climbed onto a building roof and threw tiles, lit a large bonfire on the soccer field, and sprayed fire extinguishers at staff members.
The specific conduct attributed to the accused involved dismantling soccer goal posts. Evidence indicated he held a goal post segment above his head, moved toward a group of detainees who were dragging bins and operating fire extinguishers, and then put the pole on the ground without striking anyone before walking away.
The accused did not give evidence. His counsel applied to have self-defence left to the jury as a live issue, arguing the available evidence was sufficient to raise the defence on two bases: defence of himself and defence of property.
Legal Issues
- Whether there was a sufficient evidentiary foundation to leave self-defence to the jury under section 418 of the Crimes Act 1900 (NSW)
- Whether the jury could reasonably infer, in the absence of the accused's own evidence, that he held the requisite belief that it was necessary to act as he did in defence of himself or in defence of property
Decision
Hulme J declined to leave self-defence to the jury, finding no evidentiary foundation capable of supporting the defence. Under section 418 of the Crimes Act 1900 (NSW), self-defence requires that the accused believed on reasonable grounds that it was necessary to act as he did, and that what he did was a reasonable response in the circumstances as he perceived them. Neither limb was capable of being satisfied on the available evidence.
The court accepted the legal proposition, drawn from Pemble, Zecevic, and Douglas, that once evidence discloses a possibility that the accused acted in self-defence, the question must go to the jury. However, the court found that threshold was not met here. There was no evidence that any detainee was physically attacking or threatening to attack the accused. The conduct of the other detainees, moving bins and spraying a fire extinguisher into the air, could not rationally ground an inference that the accused believed he faced a threat requiring defensive action.
On the defence of property argument, the court found no evidentiary basis to conclude the accused was motivated to protect government property. The suggestion that he alone advanced with a raised pole out of a desire to prevent property damage was described as fanciful, particularly given that he dropped the pole and moved away without confronting anyone.
Hulme J also observed that leaving an unsupported self-defence claim before the jury risked undermining the accused's case more broadly. The court noted the prospect that presenting such a claim could cause the jury to view the defence as "silly" and thereby prejudice a proper consideration of the evidence for and against the accused.
Orders Made
No orders were made in this decision.
Key Takeaways
- Self-defence under section 418 of the Crimes Act 1900 (NSW) requires evidence capable of establishing a reasonable possibility that the accused held a genuine and reasonable belief in the necessity of the defensive act; without that foundation, the issue should not be left to the jury.
- Although the accused did not give evidence, belief may in principle be inferred from the circumstances. Here, however, the surrounding conduct of other detainees was incapable of grounding any rational inference of a perceived threat.
- The principle from Pemble v The Queen, Zecevic v DPP (Vic), and Douglas v R, that a self-defence issue must go to the jury once the evidence discloses any possibility of its application, was affirmed. The critical finding was that the evidence in this case did not reach even that threshold.
- Raising an entirely unmeritorious defence before a jury carries a practical risk of prejudicing the accused's position overall, a consideration the Supreme Court weighed in its reasoning.
- Where an accused dismantles property, advances briefly toward others, and then withdraws without making contact, that conduct does not, without more, raise a reasonable possibility of defensive intent.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 418 (self-defence)
Cases
- Pemble v The Queen [1971] HCA 20; 124 CLR 107
- Zecevic v DPP (Vic) [1987] HCA 26; (1987) 162 CLR 645
- Douglas v R [2005] NSWCCA 419