Determination
35The first question in the assessment of the issue posed under s 137 is the probative value of the evidence. That involves identification of the "fact in issue" the probability of the existence of which could be affected by the evidence in question: R v Mundine [2008] NSWCCA 55; (2008) 182 A Crim R 302 at [34] per Simpson J.
36The fact in issue is whether the accused Kamali was involved in detaching chains securing rubbish bins to the laundry and then moving those bins onto the soccer field in the Fowler Compound and emptying them of their contents. Someone set fire to the rubbish almost immediately. I take it that the Crown will be inviting the jury to infer either that this was the purpose of the rubbish being emptied onto the soccer field, or that, at least, Mr Kamali was involved with many others in the violent disruptive, destructive and threatening conduct that was occurring. The Crown relies upon this as supporting its contention that there was a common purpose to demonstrate and/or protest dissatisfaction with the circumstances of the participants being detained within the VIDC. It also relies upon this as supporting its contention that the accused Kamali used unlawful violence for that common purpose. It relies upon the definition of "violence" in s 93A of the Crimes Act 1900 (NSW) that includes "violent conduct towards property".
37Ms Bishop provides direct evidence of Mr Kamali being involved in the activity just described. The evidence, therefore, could rationally affect the assessment of the probability of the existence of the fact in issue to a significant extent.
38Ms Bishop's nomination of Mr Kamali being involved in this activity is claimed to be based upon her recognising him as a person previously known to her. She had been employed as a Client Service Manager, and previously as a Client Service Officer, at the VIDC for about three and a half years as at 20 April 2011. In her then current position her responsibilities included supervision of the Fowler Compound "maintaining detainees welfare and providing a safe and secure environment" (statement of 24 April 2011 at [5]). She also said in that statement:
[8] As a result of my duties I have gained a good relationship with the clients within Fowler and would know most of them by face, but may not be able to recall their exact names because of the difficulty of their pronunciation. Given the nature of my work, I have daily dealings with most of the clients within Fowler. Many of the clients within Fowler have been there for a considerable time.
39The accused Kamali had been held at the VIDC since 27 March 2010 (tab 5 of trial Exhibit A).
40The nature of the dealings Ms Bishop had with detainees on a daily basis appear to have been quite routine. She nominated examples such as requests for a new mattress or an extra towel (Pre-trial T39.34). There were about 155 detainees being kept in the Fowler Compound at the relevant time. In re-examination on the voir dire (Pre-trial T83) she confirmed that she recognised Mr Kamali as at April 2011. She readily agreed that other staff had assisted her on the night of 20 April in identifying some of the detainees involved in the disturbance and she named some of them. However, in the course of answering questions on this topic she added "I know Kamali Alireza" (Pre-trial T83.48). It is unsurprising that Ms Bishop was unable to recall specific dealings that she had with Mr Kamali because they were routine and unremarkable and, accordingly, I do not think that her inability to do so necessarily detracts from the probative value of her evidence.
41The broad proposition for which it is contended that there has been contamination seems to be that because Ms Bishop became aware that other Serco officers claim to have seen Mr Kamali involved with fire extinguishers, this has influenced her, perhaps subconsciously, to make a note to that effect in her two-page list. The submission is that this, and the general process of taking down notes at the time of the disturbance at VIDC in the general company of other staff, has so contaminated the evidence as to make it unfairly prejudicial.
42The claim by Ms Bishop to have confined her use of the nominal roll to obtaining the correct spellings of names is difficult to determine. On the one hand, it appears to be contrary to what she said in her more contemporaneous statement of 24 April 2011 at [59] quoted above. The note endorsed by somebody else on the nominal roll ("Extinguishers") supports the inference that she simply transferred information from the nominal roll as to the type of activity a detainee was involved in to her two-page list, particularly given that Ms Bishop makes no claim to have seen Mr Kamali herself as being involved with fire extinguishers. The spellings of names on the two-page list do not all conform to the spellings on the nominal roll, although the differences are fairly trivial. The second half of the two-page list includes the names of clients in alphabetical order, an unlikely occurrence if Ms Bishop was solely making a hand-written compilation of names from assorted post-it notes.
43On the other hand, there are notes made by other staff on the nominal roll that were not transferred into Ms Bishop's two-page list. One example of this relates to Mr Parhizkar. Ms Bishop's writing against his name on the nominal roll was "Main. Roof. Tiles at staff, phone, office". Another staff member had written:
"Trashing Hughes compound"
44Hughes Compound adjoins Fowler Compound, and the latter is where Ms Bishop made her observations. What appears in the two-page list against Mr Parhizkar's name is:
"Roof. Tiles at staff etc (Main). Shop."
45The note reflects only what Ms Bishop wrote herself. Ms Bishop also did not include in her two-page notes two detainees about whom other staff had made notes on the nominal roll but she had not (Bashir Rahimi and Kamran Rasuliniyah).
46The probative value of the evidence set out in [8] of Ms Bishop's second statement might well be regarded as of less weight, or less reliability, because of the fact that it was something only disclosed in that statement, and not her two page list of 21 April 2011 or in her first and most contemporaneous statement of 24 April 2011. But that is a matter for the jury to evaluate. On its own, it does not mean that the evidence is so lacking in reliability that it is incapable of acceptance, or that there is little chance of its acceptance.
47In considering the reliability of Ms Bishop's evidence I have gone beyond the constraints upon my assessment of its probative value as set out in Shamouil. Ms Yehia accepted that I am bound by that authority but I have gone beyond it after having determined, in accordance with Shamouil what my ultimate conclusion will be, out of recognition of the very real possibility that this authority will come to be reconsidered by the Court of Criminal Appeal in the light of Dupas. In my view, whether one proceeds in accordance with Shamouil or with Dupas, the ultimate conclusion is the same.
48One aspect of the asserted unfair prejudice is that the jury might give the evidence more weight than it properly deserves. Here, as Ms Yehia submitted, the weight that could or should be given to the evidence falls for me as the trial judge to assess: R v Mundine at [44] per Simpson J; Dupas v The Queen at [78]. In my view it would be well open to the jury to assign significant weight to the evidence. In making her statement of 7 February 2012, Ms Bishop had access to notes she made on 21 April 2011, within 24 hours of the disturbance at the VIDC. I understand the effect of her evidence to be that those notes prompted her to recall further incidents that she observed during the disturbance and/or to name further detainees as being involved. The evidence in question falls partly into both categories, perhaps more into the latter.
49There might be reason for the jury to doubt the reliability of Ms Bishop's evidence concerning Mr Kamali and the rubbish bins because of her failure to mention it in her first statement. However, the jury might well be prepared to accept that there was so much going on at the VIDC on 20 April 2011 that it would be understandable that she might inadvertently omit to mention some of the things she had witnessed. Her evidence on the voir dire was that she tried to not to think about the events in the period between her first and second statements (Pre-trial T339.40). Accordingly, the jury might well accept that when her mind returned to the events, with some prompting from the notes she made on 21 April 2011, she had a genuine recollection of further matters, including the incident in question and the involvement of the accused Kamali in it. She cannot have been solely relying upon and simply parroting what was in the notes because what she set out in par [8] of the statement she made on that occasion goes well beyond them.
50Ms Bishop's claim about Mr Kamali's role in emptying the contents of rubbish bins onto the soccer field, with somebody then setting the rubbish on fire, is consistent with the evidence of four other witnesses in terms of the activity she said he was engaged in: statement of Simon Atachparian of 22 April 2011 at [53]; statement of John Tinline of 15 June 2011 at [37]; statements of Nathan Kiner of 23 April 2011 at [15]-[16] and 6 June 2011 at [8]; and statement of Michael O'Connor of 23 October 2012 at [11]-[12]). But she is only supported by one of those witnesses as to Mr Kamali being involved in it (Mr Atachparian).
51This aspect is something that makes Ms Bishop's evidence potentially more significant in its probative value. But it also has the ability to detract from it if the witnesses who did not nominate Mr Kamali were well acquainted with him and would have been expected to confirm his involvement if indeed that was the case.
52These possible frailties in the evidence of Ms Bishop on this topic are matters that are well within the capacity of the jury to properly evaluate. Even if the submissions of Ms Yehia raise the issue of contamination in a general, rather than particular, sense, collusion is a matter within the life experience of members of the jury and not one on which the court has special knowledge. In addition to R v Shamouil, I have had regard, in so far as they shed light on evidence of this nature, to the line of cases considering warnings in relation to unreliable evidence under s 165 of the Evidence Act (R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166 and following). In particular, Sperling J (Santow JA and Simpson J agreeing) held in R v El-Azzi [2004] NSWCCA 455 at [312] that:
There is nothing about a motive to lie or to give biased evidence which a jury needs to be told in order to appreciate relevance to the credibility of the witness. The same can be said of contamination of a witness's evidence.
53I am not persuaded that the asserted contamination issue is of any real concern. I am satisfied that, with appropriate directions as to the need to carefully evaluate evidence of this nature, that there is little, if any, danger of unfair prejudice on account of the jury giving the evidence more weight than it properly deserves.
54I am not persuaded that defence counsel will be impeded in challenging Ms Bishop's identification of Mr Kamali as having been involved in the event described in par [8] of the 7 February 2012 statement because of the danger of disclosing in cross-examination what other staff members had written on the nominal roll to which she had recourse. If it was the case that Ms Bishop had blindly transferred all of the information recorded by both herself and other staff members onto her two-page list and then used all of that information to compile her police statements, then the reliability of her evidence could be seriously questioned on this basis in the course of cross-examination. But a comparison of the nominal roll notations in their entirety with the two-page list demonstrates that this is not the process she engaged in. If defence counsel sought to suggest that she had done this in relation to Mr Kamali, then it would appear open to the Crown to counter the suggestion by inviting a complete comparison of the two documents.
55The real question affecting the reliability of Ms Bishop's evidence concerning the accused Kamali is the delay in disclosing it. But even if counsel chooses to pursue the type of cross-examination I have just referred to, the only note in relation to the accused Kamali that could have contaminated the evidence of Ms Bishop is "Extinguishers". It could be made patently obvious to the jury that the Crown does not assert at all that Mr Kamali was involved with any activity with fire extinguishers and that the note made by some unidentified staff member has no evidentiary value.