R v Abdollahi

Judgment 1HIS HONOUR: At the conclusion of the Crown case, counsel for three of the accused submitted that the prosecution had not established a case to answer. 2Whilst it is a question of fact for the jury to determine whether there is sufficient evidence to prove beyond reasonable doubt the guilt of the accused, it is a question of law for me to determine whether there is evidence upon which the jury could possibly be so satisfied. 3It is necessary that I look at the evidence at its highest, which is in a way most favourable to the Crown. It is not enough for a trial judge to direct a jury to return a verdict of not guilty because it is thought that any verdict of guilty would be unreasonable. See, generally, R v R (1989) 18 NSWLR 74 and Doney v The Queen (1990) 171 CLR 207.

A case to answer for the accused Kamali? 4Ms Yehia, senior counsel for the accused Kamali, made the first application. At the commencement of the trial Mr Kamali was arraigned on a single count of riot under s 93B of the Crimes Act 1900 (NSW). He pleaded not guilty. 5The prosecution case has involved evidence of various events that are said to have occurred in what might be called a "disturbance" in the Fowler Compound at the Villawood Immigration Detention Centre ("VIDC") on 20 April 2011. It is alleged that various detainees were responsible for a number of things that occurred, such as throwing tiles from the roof of the Macquarie Building, spraying fire extinguishers and throwing them at staff, taking items on to the soccer field and setting them alight and ultimately setting fire to the staff office. It is unnecessary to refer to the allegations in any more detail. 6The Crown alleges that there was a riot because there were 12 or more detainees involved in this activity; that it was carried out for a common purpose; and that the various accused used unlawful violence for that common purpose. Violence includes violent conduct towards property as well as violent conduct towards persons. It is not restricted to conduct causing or intended to cause injury or damage but includes any other violent conduct (for example, throwing at or towards a person a missile of a kind capable of causing injury which does not hit or fall short): s 93A of the Crimes Act. 7The application by Ms Yehia in respect of her client is not concerned with a question of whether there was a riot but whether there is evidence that he used unlawful violence. The evidence that may be relevant to this question concerns three prosecution witnesses. 8Mr Simon Atachparian, a Client Services Officer with Serco, the company contracted by the Department of Immigration and Citizenship to run the VIDC, gave evidence that he saw "clients running through the laundry, trying to pick up some items, bed sheets or pillows or whatever" (T613). He claimed that two of them were Medhi Viasi and Manafi. He said there were others; he thought five or six. He gave evidence of what he saw Viasi and Manafi doing; in short, taking items to the soccer field where they were set on fire. He did not see who lit the fire. When the fire was started he said Viasi and Manafi were close by and the others were "around them" (T616). 9Later in his evidence Mr Atachparian said that one of the others who were with Viasi and Manafi was Kamali Alireza. He gave a description of him. But when he was specifically asked to describe what he saw this person do, he said (at T626)): "I think he was one of the clients who also was running towards the laundry." "I'm pretty sure he was one of the clients running into the laundry." [He was not one hundred percent sure whether when he came out of the laundry whether he was carrying anything.] [He went] "to the middle of the oval with the other clients". "He gathered around with the rest of the clients in the middle of the oval where the rubbish bins were." 10Mr Augustus Henry-Peters, who was a Sri Lankan detainee in the Fowler Compound at the time, gave evidence that he was making observations of events concerned with the fire on the soccer field. He claimed to have seen the "lighting [of a] fire in the middle of the playground involving [a] mattress". He said, "I was able to see some persons setting fire." He said, "some persons took bed sheets, pillows and mattresses and they were holding lighters and the lighters lit the fire." (T1310) 11Mr Henry-Peters said that he saw "about six, seven persons" doing this. He only knew the name of one of them. He pronounced the name "Alireza", although when asked to spell it he said "A-L-L-R-S-Z". He gave a description of the person that could be regarded as not inconsistent with the accused Kamali. (T1310-1311) 12When specifically asked what he saw this person do, he said (at T1312): "He was present at that time in the place where the fire was set up." "I saw him participating with the others ... in setting the fire." "He was running around." 13Whilst he claimed that detainees who were involved in this activity called upon others to come and help, he could not remember or was unable to say, what the person Alireza said. (T1313) 14Later in his evidence (at T1314) he was asked again to specify what it was that he saw Alireza doing. He said (at T1314): "I saw him running around and shouting. I did not see anything particular that he was doing." "He was going into the building, came out, and then in the ground he was walking fast, he was running." 15A little later in his evidence he said, "He was running around, moving around and we were observing" (T1320). He described the areas where he was running including, "I think he went into the building where he was staying and he also entered the library and there was a kind of noise coming from inside the library" (T1321) 16In cross-examination (at T1326), Mr Henry-Peters said that he did not see Alireza with a lighter. He did not see anything in his hand. He said: "I did not see anything he was holding." It was put to him that he did not see Alireza holding any mattress and he replied, "I did not see him putting." It was suggested to him that he did not see this man holding any bed sheet. He replied, "He was running around shouting, uttering words, but I did not see any other act he was committing there." Finally there was this: "Q. The only thing that you say that you saw the man that you referred to as Alireza doing is running around, shouting out, is that it? A. Yes, he was running around and he was in a panic." 17In re-examination (at T1328) he was asked whether it was his evidence that the man was holding something but he could not see it, or that he was not holding anything. He replied, "To my memory there was nothing in his hand. That's what I remember." He reiterated that, "I was watching him running from one place to another. He was running from one point to another." He was unable to say what the man's intentions were. 18I was taken to the evidence of Ms Susan Bishop, a Client Services Manager. Her evidence included that there were "three other clients that also got the garbage bins from near the laundry" (T903). She recalled that two of them were "Manifi" and Viasi (T906). She could not provide a name for the third person but provided a description that could possibly be regarded as not being inconsistent with the accused Kamali. But there was so limited detail in the description that it could be consistent with any other number of detainees: dark hair, taller than "Manifi" or Viasi and of thinner build (T906). 19Ms Bishop said that she saw these three men pulling three bins from the laundry area onto the soccer field where their contents were emptied and then set on fire. It is to be borne in mind that Mr Henry-Peters spoke of six or seven men. Which one of the six or seven is the third man Ms Bishop referred to is impossible to determine given the limited, almost generic, nature of her descriptions. 20That is the evidence upon which the Crown relies for the proposition that the accused Kamali used unlawful violence. In my view, as a matter of law, it is incapable of establishing that he did. The evidence of Mr Atachparian and Henry-Peters is capable of establishing that Mr Kamali was present when others took items on the soccer field where the items were set on fire. But it is incapable of establishing more than he was present and "running around." The evidence of Ms Bishop does not add anything. The third person she described is incapable of being regarded as the accused Kamali, as opposed to some other detainee. 21There is no case to answer for the accused Kamali and so I will direct the jury to return a verdict of not guilty.