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[2013] NSWSC 475
Supreme Court of NSW
2013-02-05
Hulme J, Ms J, Mr J, Mr P
Original judgment source is linked above.
Judgment 1HIS HONOUR: A disturbance that occurred in the Villawood Immigration Detention Centre ("VIDC") on 20-21 April 2011 resulted in charges of riot and affray being brought against various detainees, including the 13 accused. It had its genesis in the morning of 20 April in the Fowler Compound and then at around midnight, after staff had been evacuated from that compound, extended into the Hughes Compound and other parts of the VIDC. 2Earlier this week I determined that evidence of events which occurred subsequent to the evacuation of staff from Fowler was not admissible. This is because there were a large number of detainees involved in the disturbance at and beyond that time and the Crown was unable to identify that any of the accused (with one exception) participated in the events subsequent to the evacuation: R v Abdollahi (No 1) [2013] NSWSC 474. The disturbance that continued in the Hughes Compound and other areas represented a severe escalation of the severity of the incident and substantial damage to property, including the burning down of buildings, occurred. I did, however, indicate in that judgment (at [18]) that "evidence derived at a subsequent time, which clearly bears upon events which must have been in existence, or initiated, at around or prior to that time ... is not excluded". 3The judgment in R v Abdollahi (No 1) includes a general description of the layout of the VIDC and of the nature of the disturbance and so I will not repeat it here.
Objection to video footage recorded after the point at which the Crown can prove the involvement of the accused 4The Crown wishes to tender in the trial video footage recorded from a police helicopter that flew over the VIDC. The filming commenced at 11.44pm and continued for about 45 minutes. The segment that the Crown wishes to tender is only the first 5 minutes or so and it is generally concentrated upon the Fowler Compound. Objection is taken on behalf of a number of accused upon the basis that the footage includes events that are subsequent to, and too remote from, the staff evacuation from Fowler. 5The footage in question commences at about 10 kilometres from the VIDC as the helicopter approached. It shows a general view of the entire complex and indicates that there were various fires. The distance of the helicopter from the VIDC means that it really only gives a general impression of there being fires within. As the helicopter neared, the footage commences to concentrate on the Fowler Compound. 6Clearly depicted are four fires within the compound. Fires within the Murray office building and on the soccer field were lit at around, or prior to, the staff evacuation and no-one takes the objection in respect of that aspect. But there are also fires shown to be ablaze in buildings which have been referred to as the gymnasium and the library/recreation room. It is contended that these must have been lit after the staff evacuation and, for that reason, render the footage inadmissible in accordance with my earlier ruling. 7Another aspect of concern to counsel for the accused who made the objection was that the footage also shows a fairly large number of detainees (perhaps about 30 on the ground and about 15 on the roof of one of the buildings) within the compound. While providing a commentary for me as to what the footage depicted as it was played in court, the Crown Prosecutor, perhaps tongue in cheek but I am not sure, referred to these men "celebrating". Upon having reviewed the footage a number of times it appears to me that it simply shows some of the men waving towards the helicopter.
Timing of relevant events 8The times at which various events occurred in the course of the disturbance cannot be determined with any precision. Witness statements provide what can only be described as rough estimates. That is understandable as the nature of the events that were occurring were such that it would be unrealistic to expect any of the VIDC staff to have been taking any notice of the time. 9The best guide to the timing of specific events is what has been referred to as the Command Room Log. Staff on the ground were relaying what was occurring to a command room where senior officers were stationed. The substance of those communications was in turn relayed to a scribe who entered them in a log. The log records a summary of events together with a time. The accuracy of the times in relation to the events to which they relate depend upon a number of variables. They include how soon after an event occurred a staff member became aware of it; how soon after that the staff member communicated with the command room; how soon after that it was relayed to the scribe; and how soon after that it was entered in the log. 10Another variable, or requirement to interpret the log with caution, is that because of the stress of the situation, entries in the log can hardly be construed literally. By way of example, there is an entry timed at 11.15pm which includes "Staff are being pulled into the Murray Unit [the office within the Fowler Compound] for their safety". Then there is an entry timed at 11.19pm which includes "Staff have pulled back into the Murray Unit. Clients are attacking the Murray Unit. They are throwing things at it and setting fire to the staff office. All staff withdrawn." 11An entry timed at 11.32pm includes, "The staff office is completely ablaze". Then, at 11.39pm there is an entry, "The internet room and the gym are on fire". At 11.50pm an entry was made that included "Another building is on fire. It is the top recreation room in Fowler. The staff office is now totalled to the ground." For the reasons given above, it is apparent that the observations in these entries were made at some stage prior to the time they were recorded in the log. 12The best estimate of the time of the evacuation of staff from the Fowler Compound seems to be in the order of 11.15pm to 11.20pm. 13The fires in the Murray Unit, as well as those in the other two buildings, appear in the latter half of the video footage, so at about 11.48pm to about 11.49pm. They each appear to be well alight. No-one has suggested that they might only have been lit moments before the footage commenced. Precisely how long before is beyond determination; that would require some expertise informed by knowledge of the combustibility of the building materials and contents of the buildings as well as the source of the ignition, which are all unknown.
Relevance of the evidence 14For the count of riot (and, in the case of the accused Sayed Mosawi, aiding and abetting riot) it is necessary for the Crown to prove, amongst other things, that 12 or more persons were present together and they used or threatened unlawful violence for a common purpose. The Crown has particularised what it claims to have been the common purpose as: (i) to demonstrate and/or protest their dissatisfaction with the circumstances of their detention within the Villawood Detention Centre; and (ii) to use and/or threaten violence towards property and towards people. 15The question is whether the footage of what was occurring within the Fowler Compound at around 11.47 to 11.48pm can, if accepted, rationally affect the assessment of the probability of the existence of that common purpose: see s 55 Evidence Act 1995 (NSW). The answer to that question, in my view, must be affirmative. 16It would be unrealistic to think that the atmosphere within the Fowler Compound changed significantly within the 15 or so minutes between when the staff evacuated and when it must be the case that the fires in the gymnasium and in the library/recreation buildings were started. Similarly, it would be unrealistic to think that the attitude and demeanour of detainees within the compound involved in the disturbance changed significantly within the intervening period. 17Fires well alight within the compound within half an hour of the staff evacuation, as well as what might be called buoyant boisterous behaviour of the detainees who remained there after there was an opportunity to be removed to another compound, must be capable of having a bearing upon whether the common purpose asserted by the Crown was in existence prior to and around the time of the staff evacuation. Accordingly, the evidence is relevant and admissible, subject to any discretion or requirement to exclude it on account of unfair prejudice: ss 135 and 137 Evidence Act.
No danger of unfair prejudice outweighing probative value 18The evidence which will be before the jury includes that fires were set on the soccer field and the Murray Unit. Evidence of two other buildings being on fire does not create a degree of unfair prejudice that would justify exclusion of the evidence. Similarly, the evidence which will be before the jury will include some quite significant displays of defiance and threatened violence towards staff of the VIDC. Given that context, evidence of the behaviour of detainees, even if if could be described as boisterous, does not involve any degree of unfair prejudice that would warrant exclusion. Putting both aspects together, I do not think that the cumulative effect involves a degree of unfair prejudice that would warrant the exclusion of either.
Conclusion 19I conclude that what has been described as "chapter one of the Polair footage" is admissible.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 May 2013
R
Abdollahi