Kamali v R; Mosawi v R; Shahsawari v R; Bejoushin v R - [2013] NSWSC 799 - NSWSC 2013 case summary — Zoe

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Kamali v R; Mosawi v R; Shahsawari v R; Bejoushin v R

[2013] NSWSC 799

Supreme Court of NSW|2013-06-14|Before: Hulme J, Blanch J, Mr P, Ms J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2013-06-14

Before

Hulme J, Blanch J, Mr P, Ms J

Catchwords

(2008) 185 A Crim R 580 Cittidini v R [2010] NSWCCA 291 Fesja v R (1995) 82 A Crim R 253 Mordaunt v DPP [2007] NSWCA 121
2012/12230
2011/146195
2012/12240

Source

Original judgment source is linked above.

Catchwords

(2008) 185 A Crim R 580 Cittidini v R [2010] NSWCCA 291 Fesja v R (1995) 82 A Crim R 253 Mordaunt v DPP [2007] NSWCA 1212012/122302011/1461952012/12240

Judgment (30 paragraphs)

[1]

Judgment 1HIS HONOUR: Seyed Alireza Kamali, Sayed Ibrahim Mosawi, Kamelledin Shahsawari and Amir Manafi Bejoushin have each applied to the Court for a certificate pursuant to the Costs in Criminal Cases Act 1967 (NSW) ("the CCC Act"). 2The applicants, and others, were accused of offences of riot and affray arising out of a disturbance that occurred at Villawood Immigration Detention Centre ("VIDC") on 20 April 2011. These are offences against ss 93B and 93C of the Crimes Act 1900 (NSW). The trial for those offences has now concluded. Messrs Kamali and Mosawi were found not guilty by directed verdict at the conclusion of the Crown case on 21 March 2013. The jury found Messrs Shahsawari and Bejoushin not guilty on 17 April 2013. 3The applicants have consented to the application being heard on the papers. I have been provided with written submissions by Ms Yehia SC for Mr Kamali, Mr Brasch for Mr Mosawi, Mr Jankowski for Mr Bejoushin, and Mr Little for Mr Shahsawari. The Crown has also made submissions, and the applicants have provided further submissions in reply.

[2]

The legislation 4The provisions of the CCC Act relevant to my consideration of the application are as follows: 2 Certificate may be granted (1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may: (a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken... ... grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings (2) For the avoidance of doubt, a certificate may be granted in accordance with subsection (1)(a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not. ... 3 Form of certificate (1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate: (a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and (b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances ... 3A Evidence of further relevant facts may be adduced (1) For the purpose of determining whether or not to grant a certificate under section 2 in relation to any proceedings, the reference in section 3 (1) (a) to "all the relevant facts" is a reference to: (a) the relevant facts established in the proceedings, and (b) any relevant facts that the defendant has, on the application for the certificate, established to the satisfaction of the Court or Judge or Magistrate, and (c) any relevant facts that the prosecutor, or in the absence of the prosecutor, any person authorised to represent the Minister on the application, has established to the satisfaction of the Court or Judge or Magistrate that: (i) relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made, and (ii) were not adduced in the proceedings. (2) Where, on an application for a certificate under section 2 in relation to any proceedings, the defendant adduces evidence to establish further relevant facts that were not established in those proceedings, the Court or Judge or Magistrate to which or to whom the application is made may: (a) order that leave be given to the prosecutor in those proceedings or, in the absence of the prosecutor, to any person authorised to represent the Minister on the application, to comment on the evidence of those further relevant facts, and (b) if the Court, Judge or Magistrate think it desirable to do so after taking into consideration any such comments, order that leave be given to the prosecutor or to the person representing the Minister to examine any witness giving evidence for the applicant or to adduce evidence tending to show why the certificate applied for should not be granted and adjourn the application so that that evidence may be adduced. (3) If, in response to an application for a certificate under section 2 in relation to any proceedings, the prosecutor or, in the absence of the prosecutor, any person authorised to represent the Minister on the application adduces evidence to establish further relevant facts that were not established in those proceedings, the Court or Judge or Magistrate to which or to whom the application is made may: (a) order that leave be given to the defendant to comment on the evidence of those relevant facts, and (b) if the Court or Judge or Magistrate think it desirable to do so after taking into consideration any of those comments, order that leave be given to the defendant to examine any witness giving evidence for the prosecutor or that authorised person. 5The effect of granting a certificate is to enable the applicant to apply to the Director-General of the Department of Attorney General and Justice for payment of costs incurred in the proceedings. It is then a matter for the Director-General to determine whether the making of a payment to the applicant is justified and, if so, to determine the amount of costs that should be paid (s 4).

[3]

Principles 6The principles I am to apply in my consideration of the applications were helpfully distilled by McColl JA (Beazley and Hodgson JJA agreeing) at [36] in Mordaunt v DPP [2007] NSWCA 121; (2007) 171 A Crim R 510. Since the principles extend over seventeen paragraphs, I will not reproduce them here, save for the following two: (e) The task of the court dealing with an application under the CCC Act is to ask the hypothetical question, whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings: Allerton [(1991) 24 NSWLR 550] (at 559 - 560); the judicial officer considering an application must find what, within the Act, were "all the relevant facts" and assume the prosecution to have been "in possession of evidence of" all of them and must then determine whether, if the prosecution had been in possession of those facts before the proceedings were instituted, "it would not have been reasonable to institute [them]; an applicant for a certificate must succeed on both the "facts issue" and the "reasonableness issue": Treasurer in & for the State of New South Wales v Wade & Dukes (Court of Appeal, 16 June 1994, unreported, BC9402561) per Mahoney JA (with whom Handley and Powell JJA agreed); Ramskogler [(1995) 82 A Crim R 128] (at 134 - 135) per Kirby P; (f) The hypothetical question is addressed to evidence of all of the relevant facts, whether discovered before arrest or before committal (if any); after committal and before trial; during the trial; or afterwards admitted under s 3A of the CCC Act; all of the relevant facts proved, whenever they became known to the prosecution and whether or not in evidence at the trial, must then be considered by the decision-maker: Allerton (at 559 - 560); Manley per Wood CJ at CL (at [9]); the relevant facts include those relevant to the offences charged and the threshold question posed by s 3(1)(a); other facts will also be relevant and admissible going, amongst other things, to the question posed by s 3(1)(b) and to the ultimate question whether, assuming that the court is of the opinion required to be specified, it should exercise its discretion under s 2: Gwozdecky v Director of Public Prosecutions (1992) 65 A Crim R 160 (at 164 - 165) per Sheller J (with whom Mahoney JA and Hope AJA agreed); 7As may be seen, the definition of "relevant facts" in s 3A is limited: while categorising different types of relevant facts, it does not expand upon what makes a fact "relevant". In Chalal v DPP [2008] NSWCA 152; (2008) 185 A Crim R 580, Ipp JA (Giles JA agreeing) found at [29] that the necessary construction of "relevant facts" was "facts relevant to the reasonableness of the institution of the criminal proceedings." Three types of relevant facts may be considered: (1)The first are those relevant facts "established in the proceedings": s 3A(1)(a). Basten JA, giving separate judgment in Chalal, took "proceedings" to have the same meaning as it has in s 2(1) (at [62]). That is, the criminal proceedings instituted by the Crown and concluded by the discharge or acquittal of the applicants. I am not bound by his Honour's reasoning, but the construction is logical and I can find no other authority on point. An implication is that this category includes material established at committal and on the voir dire. (2)The second are relevant facts established by the defendant, in conjunction with the making of the CCC Act application, to the satisfaction of the Court: s 3A(1)(b). (3)The third type of relevant facts are those established by the Crown which "relate to evidence" in the possession of the Crown at the time the decision to institute proceedings was made and which were not adduced in the proceedings: s 3A(1)(c). These facts may include, for example, credibility evidence that supports primary evidence to be adduced at trial and may influence a decision to institute proceedings, but is not itself admissible. (For the purposes of the application, the institution of proceedings means the date of arrest or charge: Mordaunt [36(c)].) 8In summary, I am to determine firstly what facts the hypothetical prosecutor is to be assumed to have been in possession of, and secondly whether, armed with those facts, it was not reasonable to have instituted proceedings. If the latter question is answered in the affirmative, it is within my discretion to grant a certificate under the CCC Act. 9Section 3(1)(b) is a further test requiring consideration of the acts and omissions of the defendants. But the Crown does not contend that any act or omission of the defendants in relation to the proceedings, such as refusing to answer questions put by police officers in an interview, was not reasonable in the circumstances.

[9]

Consideration 28Section 3A does not in explicit terms include within the definition of "relevant facts" the additional material the Crown sought to rely upon, being witness statements and notes, some made before proceedings were instituted and some after. No point about this was taken in submissions in reply for the applicant; indeed, reference was made to the following from the judgment of McColl JA in Mordaunt (at [36(f)]): The hypothetical question is addressed to evidence of all of the relevant facts, whether discovered before arrest or before committal (if any); after committal and before trial; during the trial; or afterwards admitted under s 3A of the CCC Act ... 29The issue between the parties was the significance of material in witness statements and notes; not whether such material may be considered at all. Accordingly I will approach the determination of the application by Mr Kamali (and the others) with regard to both the evidence in the trial and that which was otherwise available to the prosecution. 30This leaves for consideration the "reasonableness issue". The Crown submitted at [23]: The Crown could not be expected to anticipate that Ms Bishop would not be able to recall the name of Kamali - during the pre-trial hearing Ms Bishop stated: 'I would have recognised him anyway'. 31The Crown also argued, at [57]: Notwithstanding the facts as they emerged at trial, it is submitted that it was reasonable for the Crown to institute the proceedings against Kamali. 32As Ms Yehia correctly argued at [9] of her submissions in reply, these arguments misstate the CCC Act inquiry. The hypothetical prosecution must know that their witnesses will not come up to proof in respect of an element of the offence. It is not a question of risk, or leaving a factual dispute to the jury. In this application, possession of probative material in statements or notes must be weighed against the hypothetical knowledge that the evidence they contain will never be given. 33I found in R v Abdollahi (No 9) that the evidence was incapable of establishing an element of the offence. The bare fact that I determined the evidence to be insufficient to ground a conviction does not entitle the present applicant to a favourable decision: R v Williams; ex parte Williams [1970] 1 NSWR 81 (at 83) per Sugarman P (with whom O'Brien J agreed; cf Manning JA (at 85)), Mordaunt at [36(k)-(m)]. But it was not the case that the evidence was meagre, or that it was unreliable: it was that it was not there. 34I have already referred to the separate judgement of Basten JA in Chalal. In that judgment, his Honour also made the observation that the failure to establish any factual basis for a particular element of the prosecution case will tend to support a costs application. This is opposed to the situation where the evidence for a particular element is merely unsatisfactory. Fullerton J endorsed this comment (with the agreement of McClellan CJ at CL and Schmidt J) in Cittidini v R [2010] NSWCCA 291 at [8]. I agree with the proposition. 35As an addendum, I should resolve the question raised inferentially by the Crown, and refuted by Ms Yehia, that the failure of defence to cross-examine particular witnesses before trial was relevant to the (hypothetical) decision to institute proceedings. I do not think this is a relevant fact for the purposes of the exercise required by s 3(1)(a). In as far as it falls under s 3(1)(b), it was reasonable in the circumstances. I do not see how it is the responsibility of defence counsel to point out flaws in the Crown case at an interlocutory stage, except in so far as they could be expected to preserve the best interests of the accused, which is not itself a consideration in the present judgment.

[11]

Sayed Ibrahim Mosawi 38Mr Mosawi was charged with one count of aiding and abetting a riot. In accordance with the provisions of s 345 Crimes Act, he was liable as a principle to the full penalty for the offence. He was found not guilty by a directed verdict at the close of the Crown case. 39The case against Mr Mosawi was outlined to the jury in the Crown's opening address: So far as the particular acts relating to him are concerned, you will hear evidence that between about, or from about 7.30pm clients on the ground were attempting to gain access to the roof. At about this time Mr Mosawi was seen encouraging others to climb on to the roof. In broken English he was yelling for everyone to get on the roof saying, "Go, go, go". He was gesturing with his hands for others to get on to the roof. At that time, or around about that time, Mr Mosawi broke the tape, that is the cordon tape, being used to mark off the cordoned area. And at that time clients on the roof were throwing tiles in the direction of staff members. So that outlines the evidence I anticipate being called against Mr Mosawi. 40(The cordon tape had been laid out by Serco staff seeking to prevent detainees joining others who had started a protest on the roof of the adjoining building.) Mr Mosawi was also alleged to have applied force to Ms Bishop, who was standing behind the tape, in order to move her out of the way. Ms Bishop's police statement supported this version of events. 41Ms Bishop's evidence at trial corresponded with her written statement: Q. Any observations made of any other clients at the time of the rush of clients? A. There was another client who pulled the barrier tape that we had to allow the other clients to get closer to the fence at the end of the Macquarie building. Q. When you say "barrier tape", what do you mean by that? A. It's just like a plastic tape, very similar to what the police would use, like "do not cross". ... Q. The clients that you saw, were they on the left side of the tape as you look at the sketch prior to the rush? A. Yes, they were behind the tape. Q. You said the tape was broken, is that right? A. Yes. Q. Did you see that happen? A. Yes. Q. What did you see? A. One of the clients ripped the tape. Q. Who was that? A. That was Mosawi, Mosawi. Q. And at the time that Mr Mosawi ripped the tape, did you hear him say anything? A. As he ripped the tape he pushed me to the side. There was a lot of noise and yelling going on at that time. I couldn't distinctly hear what he said. Q. When you said, "Pushed me to the side", you indicated with your left elbow a movement with the elbow backwards, is that right? A. As he broke the tape he pushed. Q. In the action of breaking the tape, his arms moved to the left and right and one of them hit you, is that what you're saying? A. Yes. Q. Did you hear him say anything at that time or not? A. I can't remember. Q. There was a lot of noise going on, is that right? A. There was a lot of noise. Q. When you say "a lot of noise", what are you hearing? A. Just a lot of voices yelling. ... Q. After Mr Mosawi broke the tape and hit you with his arm, did you make any other observations of him? A. No, I can't recall, no, he Q. Sorry? A. No. 42No other witness identified Mr Mosawi as participating in the disturbance. In R v Abdollahi (No 9) at [22]-[35] I found that it would be impossible for a jury to conclude that the man Ms Bishop identified as "Mosawi" was Sayed Ibrahim Mosawi. I was led to that conclusion by the paucity of the evidence, Ms Bishop's marked difficulty in pronouncing the names of detainees, and the presence of other detainees with similar-sounding names within the compound.

[21]

Consideration 73The points raised in the submissions in reply may be dealt with briefly. 74I accept that the test for whether a prosecution was unreasonable is not the same test that applies to arrest. But the submission goes nowhere. And the Crown is plainly correct in referring to the time of charge as the time when the decision to institute proceedings has been made: Mordaunt [36(c)]. 75I do not accept the submission that relevant facts must be evidence adduced at trial. That is not the sense with which "evidence" is used in the CCC Act. If it was, ss 3A(1)(b) and (c) could not operate. The contents of the notes made by Messrs Kiner, Atachparian and O'Connor have been established in the proceedings to my satisfaction. So too have the fact that the applicant exercised his right to silence, and that there was reason to believe that Ms Bishop's memory had been adversely affected by the traumatic events of the disturbance at VIDC. That much was plain from her evidence alone; there is nothing to be gained by recourse to other material. 76I must determine whether it was reasonable for the prosecution, being in possession of all these facts, to have instituted proceedings. 77Only Ms Bishop was able to name Mr Shahsawari as being involved with the discharge of fire extinguishers. But while she had some difficulty with the pronunciation of the name "Shahsawari" (T 1096), there was no evidence establishing that she could be accidentally referring to another detainee with a similar name (cf Mosawi). She gave evidence that she knew him by name from her day-to-day duties at VIDC and from conversations with him (T 1096). She recalled him being "a little tall" and "taller than the majority", and having prominent cheekbones. I observed Mr Shahsawari in the dock for the length of the trial, and the latter was, in particular, an obvious feature that the jury would be able to evaluate for themselves. Mr Little submitted, at p 23 of his principle submissions, that "the comment 'he's taller than the majority' is prima facie inconsistent with 'a little tall'". I respectfully disagree. 78Another feature that distinguishes this evidence from that regarding Mr Mosawi is that it related to an activity observed from a safe distance that went on for more than a fleeting moment. The question of Ms Bishop's memory is not relevant to the evidence against Mr Shahsawari. The evidence she gave at trial was consistent with her contemporaneous notes and statements. 79Having regard only to Ms Bishop's evidence, I would not be inclined to view the decision to prosecute as unreasonable. Her evidence was of such a quality that a verdict of guilty could have been entered. There was a prima facie case against Mr Shahsawari that was sufficient to go to a jury. But that does not determine the CCC Act question. My decisions in R v Abdollahi (No 6) and R v Abdollahi (No 10) are not conclusive: R v McFarlane (Supreme Court of NSW, Blanch J, 12 August 1994, unreported), Fesja v R (1995) 82 A Crim R 253. 80The evidence of Mr Kiner is troublesome. As I have said before, the Crown is expected to make an evaluation of contradictory evidence. Ms Bishop and Mr Kiner each saw four men discharging fire extinguishers in the evening. Their evidence was the same in identifying three of the men. They differed as to whether the fourth person was Mr Shahsawari or the detainee Al Halfi. It was not conclusively established that they were referring to the same event, but it was an available inference. 81The contradictory evidence of Mr Kiner created a weakness in the Crown case. But it was not one that was outside of the ability of the jury to evaluate. It was not, adopting Mordaunt at [36(m)], a conflict of important expert evidence. It was "word against word" between two lay witnesses, neither of whom was so substantially lacking in credit as to render it unreasonable for the jury to be the ultimate judge.

Kamali v R; Mosawi v R; Shahsawari v R; Bejoushin v R

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Judgment (30 paragraphs)

Legislation Cited (2)

Cases Cited (8)

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