Supreme Court New South Wales Medium Neutral Citation: R v Abdollahi (No 11) [2013] NSWSC 484 Hearing dates: 8 April 2013 Decision date: 11 April 2013 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: Decline to leave self-defence to the jury in relation to the accused Ali Catchwords: CRIMINAL LAW - defences - self-defence - whether defence should be left to jury Legislation Cited: Crimes Act 1900 (NSW) Cases Cited: Douglas v R [2005] NSWCCA 419 Pemble v The Queen [1971] HCA 20; 124 CLR 107 Zecevic v DPP (Vic) [1987] HCA 26; (1987) 162 CLR 645 Category: Procedural and other rulings Parties: Regina Ali Abdollahi Haider Hussein Ali Mohammed Naim Amiri Amir Manafi Bejoushin Taleb Feili Ali Haidari Majid Parhizkar Kamelledin Shahsawari Medhi Viasi Representation: Counsel: Mr G Farmer SC with Ms J Single (Crown) Mr C Smith (Abdollahi) Mr M Paish (Ali) Mr J O'Sullivan (Amiri) Mr R Jankowski (Bejoushin) Mr W Flynn (Feili) Mr R Pontello (Haidari) Mr D Marr (Parhizkar) Mr P Little (Shahsawari) Mr A Webb (Viasi) Solicitors: Commonwealth Director of Public Prosecutions Watsons Solicitors & Barristers Archbold Legal CBD Criminal Defence Lawyers Blair Criminal Lawyers L David Lock File Number(s): 2011/219556 Judgment 1HIS HONOUR: Mr Paish, counsel for the accused Haider Hussein Ali, asks that self-defence be left as an issue for the jury to consider. Mr Ali is accused of riot and in the alternative, affray. I do not accept that there is an evidentiary foundation for the jury to consider it and so do not propose to do so. My reasons are as follows. 2I will summarise the effect of what the evidence relevant to this issue is capable of establishing but it must be understood in the context of all of the events that were occurring at around the same time. 3Briefly, there was mayhem in the Fowler Compound at the Villawood Immigration Detention Centre at about 11.00pm on 20 April 2011. There were detainees camped on the roof of the Macquarie Building, some of whom were pulling up roof tiles and some of them, and others, were throwing them. The Crown contends that they were being thrown "willy-nilly" but also at buildings, phone booths and members of staff. Other detainees were dragging objects onto the soccer field where a large bonfire was set. A substantial amount of yelling and shouting was going on, including detainees chanting "freedom". The Crown contends that a riot was occurring. 4The events which specifically relate to the present issue are the dragging of rubbish bins onto the soccer field which were used to establish, or further fuel, the bonfire; the spraying of fire extinguishers into the air and at staff; and the dismantling of soccer goal posts. 5The evidence relevant to this issue is capable of establishing the following: Mr Ali was involved in dismantling soccer posts. He held one above his head, moved a short distance towards other clients who were involved in moving bins and then threw it on the ground. There were no staff members in the vicinity. He could have been "running slightly" when doing this. He appeared to a staff member to be doing this in a "menacing manner". (This proposition was drawn out in cross-examination but counsel for the accused did not then attempt to explore what it was about the "manner" that was "menacing"). Mr Ali did not reach the group with the bins; he put the pole on the ground without attacking anyone and then moved away from the area. It was "possible" that he picked up a segment of a soccer post, raised it above his head and went in the direction of a particular detainee who was spraying a fire extinguisher and others who had wheelie bins. At 11.04pm, second-hand information was relayed to the "command suite" by an officer in the Fowler Compound which was recorded to the effect that there were two detainees fighting, one of who had a fire extinguisher and the other was swinging at him with a pole. 6For self-defence to be available for consideration by the jury, the evidence must be capable of establishing a reasonable possibility that (a) Mr Ali believed on reasonable grounds that it was necessary to do what he did in defence of himself, or in defence of property, and (b) what he did was a reasonable response in the circumstances as he perceived those circumstances: s 418 Crimes Act 1900 (NSW). Acting in defence of another is further basis upon which a self-defence issue can arise but it is only the two bases I have mentioned that have been suggested. 7Mr Ali did not give evidence. There is, accordingly, no direct evidence as to his belief as to the matters I have referred to in (a) in the preceding paragraph. However, it was submitted by Mr Paish that there was a sufficient evidentiary foundation for the jury to draw the inference that he did have either of those beliefs. 8Mr Paish referred in submissions to Pemble v The Queen [1971] HCA 20; 124 CLR 107, Zecevic v DPP (Vic) [1987] HCA 26; (1987) 162 CLR 645 and Douglas v R [2005] NSWCCA 419 in support of the proposition that once the evidence discloses the possibility that the accused acted in self-defence, the question must be left to the jury. I accept that submission. Mr Paish also submitted that when Mr Ali was approaching other detainees in a "menacing manner" it could be inferred that he was remonstrating violently with them because they were damaging government property. But for the following reasons, I do not think that the evidence leaves open any possibility for a reasonable jury to conclude that the defence is available. 9There is no evidence that detainees were physically attacking, or threatening to attack, other detainees. How the jury could possibly conclude that Mr Ali believed that detainees bringing rubbish bins onto the soccer field, and another detainee was spraying a fire extinguisher into the air, were threatening violence to him such that he believed it was necessary to do what he did in self-defence is mystifying. There is no prospect that the jury could regard that as a reasonable possibility. 10There is no evidence that any of the detainees, let alone Mr Ali, were so motivated to protect government property that they were motivated to threaten violence to those who were causing damage. The only evidence before the jury is that some of the detainees were damaging property, others were supporting them by shouting, yelling and chanting, whilst others either looked on or removed themselves from the mayhem. There is no basis for the jury to think that it was a reasonable possibility that Mr Ali, alone, was motivated by the good intention of protecting the property of the Australian government; particularly, but not only, because at most he is said to have advanced towards others with a bar raised above his head and then dropped it and wandered off. 11In addition, in my view, putting an entirely unmeritorious issue of self-defence to the jury as part of a fanciful defence advocated on the part of Mr Ali would, as the Crown Prosecutor observed, work to his disadvantage as opposed to serving his interests. As I commented during the course of submissions on 8 April 2013 (SU 89.10), there is a risk that it would simply cause the jury to think that Mr Ali's defence was "silly" and might prejudice them against a proper consideration of the case for and against him. ********** 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