Haidari v R

1. [1]

   GLEESON JA: I agree with Johnson J.

2. [2]

   JOHNSON J: The Appellant, Ali Haidari, seeks an extension of time to appeal against his conviction on 17 April 2013 for an offence of riot under s.93B Crimes Act 1900, following a trial before RA Hulme J and a jury in the Supreme Court of New South Wales.

3. [3]

   The Appellant was sentenced to imprisonment comprising a non-parole period of one year and two months commencing on 28 April 2013 and expiring on 27 June 2014, with a balance of term of eight months commencing on 28 June 2014 and expiring on 27 February 2015.

4. [4]

   The total term of the sentence expired on 27 February 2015. There is no appeal against sentence.

Application for Extension of Time

1. [5]

   The Appellant relies upon the affidavit dated 4 November 2014 of his solicitor, Edwina Lloyd, in support of the application for an extension of time. The affidavit discloses circumstances in 2014 which were beyond the control of the Appellant himself.

2. [6]

   The Crown did not oppose the extension of time which, in the circumstances, should be granted.

Grounds of Appeal

1. [7]

   The Appellant communicated the following grounds of appeal:

2. [8]

   As no objection was taken at trial to the matter now complained of in Ground 1, the Appellant requires leave under Rule 4 Criminal Appeal Rules to rely upon this ground.

Factual Background

1. [9]

   The Appellant stood trial with a number of other persons for alleged offences of riot and affray said to have been committed at the Villawood Immigration Detention Centre (“Detention Centre”) on 20 April 2011. Four persons were convicted of riot and one of affray.

2. [10]

   The factual background to the present appeal may be gleaned sufficiently from the remarks on sentence of RA Hulme J: R v Ali; R V Amiri; R v Feili; R v Haidari; R v Parhizkar [2013] NSWSC 871 at [5]-[6]:

3. [11]

   In relation to the Appellant, his Honour made particular findings of fact at [21]:

Issues in the Trial of the Appellant

1. [12]

   The trial Judge directed the jury that the elements of the crime of riot under s.93B Crimes Act 1900 were as follows (MFI36; AB342-343):

2. [13]

   His Honour directed the jury that “violence” meant any violent conduct, and included violent conduct towards property as well as towards persons. It was not restricted to conduct that causes, or is intended to cause, injury or damage. It includes any other violent conduct, such as throwing something at someone that is capable of causing injury, whether or not it does.

3. [14]

   In his closing address to the jury, counsel for the Appellant made clear that the issue in the trial was whether the Crown had established elements (d), (e) and (f), namely that the Appellant was on the roof of the Macquarie Building using unlawful violence by throwing tiles (AB152).

The Role of Officer Kiner’s Evidence at the Appellant’s Trial

1. [15]

   Before moving to the first ground of appeal, it is appropriate to place in context the evidence of Officer Kiner at the trial of the Appellant.

2. [16]

   Officer Nathan Kiner was a client service officer employed by Serco at the Villawood Immigration Detention Centre.

3. [17]

   Prior to the jury being empanelled, a wide-ranging voir dire (by way of a Basha Inquiry) was held. Officer Kiner was called to give evidence on the voir dire on 31 January 2013 (AB8-30). Three statements of Officer Kiner dated 23 April 2011, 6 June 2011 and 31 October 2012 (AB324-341) were tendered on the voir dire (AB8). These statements, amongst other things, related to his recognition of the Appellant on the night of 20 April 2011 and in the ABC footage taken of the events, to which further reference will be made.

4. [18]

   Although they were not in evidence before the jury, it is appropriate to refer to the statements of Officer Kiner, in particular for the purpose of considering whether leave should be granted under Rule 4 to allow the Appellant to rely upon Ground 1.

5. [19]

   The body of Officer Kiner’s statement of 23 April 2011 made no express reference to the Appellant. He stated that, between about 7.45 pm - 9.00 pm, he was walking around the Macquarie Building together with Officers O’Connor, Atchaparian and Papa. About this time, Officer Kiner “observed about 11-13 clients climb onto the roof of the Macquarie building” (paragraph 13). He said that, at about 9.30 pm “the clients on the roof of the Macquarie began to rip the tiles off and throw them at O’Connor, Atchaparian, Papa and [himself]” (paragraph 14). He said “I recognised the person throwing the tiles and know him to be Majid PARHIZKAR” (paragraph 14).

6. [20]

   Officer Kiner described later in that statement the preparation of notes in the early hours of 21 April 2011 (paragraph 34; AB329):

7. [21]

   The notes signed by Officer Kiner and others listed “Fowler clients” who were “observed on the roof of Macquarie”. The Appellant was included with a notation “roof top protest”. There was no mention of him throwing tiles, although entries of that type were recorded for some of the other listed persons (AB332-333).

8. [22]

   Officer Kiner’s statement of 6 June 2011 expanded on his earlier statement. He said at paragraph 7 (AB337):

9. [23]

   Officer Kiner made a further statement on 31 October 2012. He stated that he had viewed on 10 October 2012 a DVD containing ABC footage of the events. Whilst doing so, he said that he recognised a number of persons, including the Appellant (paragraphs 6-7; AB339-340). His observations included the Appellant removing tiles and throwing tiles off the roof (AB340). He described his interaction with detainees in the course of his duties, stating “I have a strong familiarity with the clients as part of my regular duties and am able to recognise them by name” (paragraph 8; AB341).

10. [24]

    Although cross-examined by counsel for other accused persons, Officer Kiner was not cross-examined on the voir dire by experienced counsel appearing for the present Appellant. Nor was any objection taken or foreshadowed to any part of Officer Kiner’s evidence concerning his identification of the Appellant as a person throwing tiles from the roof of the Macquarie Building.

11. [25]

    Officer Kiner was called by the Crown, and gave evidence in the presence of the jury between 26 February 2013 and 1 March 2013 (AB31-118). No objection was taken to Officer Kiner giving evidence that he recognised the Appellant, that he saw him on the roof of the Macquarie Building removing tiles and passing them to the co-accused, Majid Parhizkar (“Parhizkar”), nor to his evidence that he recognised the Appellant as one of the people recorded in the ABC footage. Cross-examination of Officer Kiner by counsel for the Appellant was directed to whether he was mistaken about his recognition of the Appellant.

12. [26]

    It was the Crown case that the Appellant went onto the roof of the Macquarie Building at about 7.30 pm on 20 April 2011. Based upon the evidence of Officer Kiner, the Crown said that the lifting of tiles by the Appellant, and the throwing of tiles by others, was observed by Officer Kiner to occur some time after 9.30 pm (AB45, 47). Based upon the evidence of the ABC footage (Exhibit C) and Officer Kiner’s evidence based on that footage, the Crown contended that the lifting and throwing of tiles by the Appellant occurred some time after 10.15 pm.

13. [27]

    Further reference will be made to this evidence when considering the grounds of appeal.

14. [28]

    The evidence at the trial also included video footage taken on a mobile phone from within the Fowler Compound. It was the Crown case that the mobile phone images (Exhibit J) and the ABC footage (Exhibit C) graphically portrayed several acts of violence engaged in by some of the detainees, including the Appellant, both before and after fires were lit in the Fowler Compound.

15. [29]

    The Appellant did not give evidence at the trial. Character evidence was adduced from Ellice Grien to the effect that the Appellant was a quiet, peaceful, polite person.

16. [30]

    It was the Appellant’s case that insofar as Officer Kiner nominated the Appellant’s name, his evidence did not reliably identify the Appellant. It was said that Officer Kiner did not otherwise purport to, nor did he, identify the Appellant from photographs or by description.

Ground 1 - Challenge to the Admission of the Evidence of Officer Kiner

1. [31]

   Ms Francis, counsel for the Appellant, acknowledged that no objection had been taken by trial defence counsel to evidence from Officer Kiner that the Appellant was observed by him on the roof and was depicted in the footage. Counsel acknowledged that leave under Rule 4 Criminal Appeal Rules was required to rely upon the first ground of appeal. It was accepted that it was necessary to demonstrate that a miscarriage of justice had occurred, before leave under Rule 4 would be granted.

2. [32]

   Ms Francis submitted that the evidence of Officer Kiner now challenged under Ground 1, if relevant, was opinion evidence. Counsel submitted that the position here was similar to that in R v Drollett [2005] NSWCCA 356, where an appeal against conviction was upheld in circumstances where the trial Judge allowed a witness to a gaol assault (a Mr Stephens) to identify the Appellant from CCTV footage of the incident, where the footage did not represent what the witness himself observed of the incident. Simpson J (McClellan CJ at CL and Rothman J agreeing) said at [54]-[57]:

3. [33]

   Ms Francis submitted that Officer Kiner did not assert that the footage depicted the scene to which he had been an eye witness, nor did he assert that he had observed the person who he stated was the Appellant behaving in the manner depicted in the footage. Counsel submitted that the evidence was not admissible, relying upon the reasoning of Simpson J in R v Drollett at [59]-[66].

4. [34]

   Mr Farmer SC, for the Crown, in emphasising that leave under Rule 4 was required to argue this ground, submitted that the Appellant only sought to challenge Officer Kiner at trial on the basis that he was mistaken about his evidence, not that he did not have the capacity to identify the Appellant.

5. [35]

   Further, despite being on notice about his evidence concerning who was recorded on the ABC footage engaging in acts of violence, no objection was taken by the Appellant to this evidence being given at trial. Specifically, the evidence was not challenged on the basis that it was opinion evidence and, for that reason, inadmissible.

6. [36]

   The Crown submitted that Officer Kiner had given evidence about his work at the Fowler Compound, being work which he had undertaken for a period in excess of four years. The Crown pointed to the evidence of Officer Kiner in which he referred to the Appellant directly or by reference to the footage.

7. [37]

   The Crown submitted that the evidence of Officer Kiner was factual evidence relevant to the case against the Appellant of the type described by Simpson J in R v Drollett at [54].

8. [38]

   The Crown took issue with the Appellant’s submission that the evidence of Officer Kiner was opinion evidence for the purpose of s.76 Evidence Act 1995. If it was opinion evidence, the Crown submitted that it was evidence deriving from Officer Kiner’s knowledge of the Appellant based upon his experience and that it was relevant and admissible: s.79(1) Evidence Act 1995.

9. [39]

   The Crown submitted that the Appellant’s submission was based largely on assertions that Officer Kiner was not in a position to witness the events depicted in the footage, and that he did not give an account of his prior relationship or familiarity with the Appellant. Contrary to this, the Crown submitted that the evidence of Officer Kiner about what he observed on the ABC footage was evidence of facts observed by him. Further, it was submitted that the footage depicted a particular scene which Officer Kiner observed at the time. The fact that it was taken from the other side of the building, it was submitted, did not alter this characterisation of the evidence.

10. [40]

    It was submitted that leave to rely upon the first ground of appeal should be refused.

11. [41]

    The issue raised in the first ground of appeal is taken for the first time on appeal before this Court. Experienced trial counsel appearing for the Appellant did not object to the evidence of Officer Kiner on the basis contended for before this Court. No evidence was placed before this Court concerning this topic. Ms Francis submits that the fact that no objection was taken by counsel for the Appellant at trial was not a consequence of any tactical decision on counsel’s behalf.

12. [42]

    It is now contended that the challenged evidence was “not admissible” as it constituted opinion evidence for the purpose of s.76(1) Evidence Act 1995. The words “not admissible” in the Evidence Act 1995 ordinarily mean “not admissible over objection”: Seltsam Pty Limited v McGuiness [2000] NSWCA 29; 49 NSWLR 262 at 287 [149]; Gonzales v R [2007] NSWCCA 321; 178 A Crim R 232 at 244 [26]; WC v R [2015] NSWCCA 52 at [20]. The words “not admissible” may be contrasted with the words “is not to be adduced” (in, for example, ss.118 and 119) and similar directory words in other provisions: Gonzales v R at 243-244 [24]; WC v R at [20].

13. [43]

    In Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1 at 9 [20], Gleeson CJ and Hayne J observed:

14. [44]

    From time to time, an affidavit of trial counsel is read on appeal where a ground of appeal requires leave under Rule 4. The utility of affidavits of this type has been questioned: R v Moussa [2001] NSWCCA 427; 125 A Crim R 505 at [56]-[62]; Tekely v R [2007] NSWCCA 75 at 519-521 [131]. Nevertheless, it has been a not uncommon practice in this Court where Rule 4 arises, notwithstanding what was said in R v Moussa: R v FDP at 648 [14]. No affidavit was relied upon in this appeal. Although the Appellant is represented by different counsel on appeal, the same firm of solicitors appeared for the Appellant at trial and on appeal (AB1).

15. [45]

    In the absence of any evidence, an inference may be available that trial counsel did not take the point now sought to be raised given the limited prospect that it would succeed, and the likely consequence that there would be a more detailed body of evidence emanating from Officer Kiner before the jury concerning his knowledge of the Appellant and his observations of events said to have involved the Appellant inside the Detention Centre on the night of 20 April 2011. An examination of the trial transcript rather suggests that the Appellant’s trial counsel, in the context of a trial with multiple accused, did nothing which may have served to expand the evidence which referred to his client. Submissions were then made to the jury that the evidence was insufficient to establish to the criminal standard that the Appellant was on the roof of the Macquarie Building throwing tiles.

16. [46]

    Leave required by Rule 4 will not be granted lightly: R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304 at 313 [52]. It has been observed that the Criminal Appeal Act 1912 does not exist to enable an accused person who has been convicted on the basis of one set of issues to have a new trial under a new set of issues which the person could or should have raised at the first trial: R v Abusafiah (1991) 24 NSWLR 531 at 536. The observations cited (at [43] above) from Dhanhoa v The Queen underpin this statement from R v Abusafiah.

17. [47]

    The critical issue for the Appellant to establish is that there has been a miscarriage of justice in that he has lost a real chance (or a chance fairly open) of being acquitted: Picken v R [2007] NSWCCA 319 at [21]. Another formulation of the test is that “leave will only be granted where an irregularity has occurred which is such a departure from the essential requirement of the law that it goes to the root of the proceedings”: R v Tripodina (1988) 35 A Crim R 193 at 195; FP v R [2012] NSWCCA 182 at [73]; WC v R at [9].

18. [48]

    The Appellant contends in Ground 1 that the admission of the evidence of Officer Kiner identifying the Appellant from aspects of footage of events within the Detention Centre has given rise to a miscarriage of justice. It is contended that this was opinion evidence which was not admissible because of s.76(1) Evidence Act 1995.

19. [49]

    Although the orders of this Court in R v Smith [1999] NSWCCA 317; 47 NSWLR 419 were set aside on appeal in Smith v The Queen [2001] HCA 50; 206 CLR 650, parts of the judgment of Sheller JA (Grove and Hidden JJ agreeing) have been cited and applied in later judgments.

20. [50]

    Sheller JA observed, at 423 [19], that if a distinction must be made between fact and opinion, “it can only be one of degree, calling for a decision as to whether, on a continuum which is unmarked and for which there is no exact measure, particular testimony has passed the point where it has become evidence of an opinion”.

21. [51]

    In Smith v The Queen, Kirby J (the only Judge to decide the opinion issue) observed at 667 [52] that the distinction between fact and opinion “is one of degree rather than of kind”. At 667 [54], Kirby J agreed that “a wide latitude should be accorded to the trial judge as to the applicable classification, given the blurred boundary between fact and opinion”.

22. [52]

    Later cases have emphasised these observations of Sheller JA and Kirby J concerning the imprecise distinction between fact and opinion: R v Marsh [2005] NSWCCA 331 at [29], [31]; R v Drollett at [53].

23. [53]

    As Simpson J observed in R v Drollett at [64], it will always be necessary to consider the circumstances of the case in question.

24. [54]

    The present case may be compared with a number of other cases where issues of this type have arisen:

25. [55]

    The Appellant’s submissions in the present appeal focused upon the decision in R v Drollett. It should be noted that, unlike this case, objection was taken to the challenged evidence at first instance in R v Drollett. In that case (and importantly), the prison officer, Mr Stephens, did not claim to have observed any part of the attack giving rise to the charge (at [18]). His observations were limited to what happened immediately after its conclusion. Mr Stephens was shown the “extremely indistinct” footage of the incident, which was “not continuous video footage, but a series of still photographs taken at one second intervals”. When shown on a video player, they produced “a staccato-like, jerky image” (at [6]). He purported to identify Mr Drollett on that footage. On the basis of the whole of the evidence given by Mr Stephens, Simpson J concluded (at [60]) “that his identification of the appellant was made, not by recognition or familiarity with the appearance of the appellant, buy rather by a process of deduction”.

26. [56]

    The circumstances in R v Drollett are significantly different from the present case.

27. [57]

    The hurdle posed by Rule 4 lies in the path of the Appellant. It is necessary for him to demonstrate that a miscarriage of justice has resulted.

28. [58]

    For the purpose of considering this ground of appeal, and the unreasonable verdict ground (Ground 3), I have considered the evidence given by Officer Kiner, together with the mobile phone and ABC footage (Exhibits C and J). The relevant parts of Exhibits C and J were played in open court during the hearing of the appeal, and I have viewed Exhibits C and J again in Chambers since judgment was reserved by the Court.

29. [59]

    A summary of the evidence of Officer Kiner before the jury, particularly in relation to the Appellant, was set out in the Crown submissions. That summary, which is accurate, states:

30. [60]

    During cross-examination by counsel for the Appellant, Officer Kiner gave the following evidence (again from the Crown submissions):

31. [61]

    Officer Kiner had been employed at the Detention Centre since November 1999 and was permanently rostered in Fowler Compound since about 2007 (T567; AB31). The Appellant had been detained in the Detention Centre since 9 September 2010 (Exhibit A; AB316).

32. [62]

    It is appropriate to set out extracts from the evidence of Officer Kiner concerning the Appellant. In examination in chief, he was asked (T696-7; AB43-44):

33. [63]

    Soon after, Officer Kiner was asked in chief (T700; AB47):

34. [64]

    A little later, the Crown asked Officer Kiner questions by reference to the ABC footage (Exhibit C) (T706-7; AB53-54):

35. [65]

    Exhibit C was then played in Court in the presence of the jury and Officer Kiner, and he was asked about persons visible in the ABC footage (T709-713; AB56-60). He said with respect to the Appellant (T710; AB57):

36. [66]

    Arising from some questions asked by the trial Judge, Officer Kiner was asked questions by reference to Exhibit E, a still photograph taken from Exhibit C (T710-711; AB57-58):

37. [67]

    The playing of Exhibit C continued and, soon after, Officer Kiner referred again to the Appellant (T712; AB59):

38. [68]

    Counsel for the Appellant commenced cross-examination of Officer Kiner in the following way (T761; AB73):

39. [69]

    Officer Kiner was asked in cross-examination (T767; AB79):

40. [70]

    Soon after, he was asked (T770; AB82):

41. [71]

    Officer Kiner was asked (T771-2; AB83-84):

42. [72]

    Counsel concluded his cross-examination of Officer Kiner in the following way (T778-9; AB90-91):

43. [73]

    Having considered the evidence of Officer Kiner and the footage depicted in Exhibits C and J, I consider this case to be distinguishable from R v Drollett. In that case, Mr Stephens did not see any part of the event constituting the offence. Here, Officer Kiner observed critical events at relevant times. He said that he observed the Appellant on the roof with tiles. When shown Exhibit C, he said that it showed the Appellant throwing tiles from the roof. He gave evidence of those events including identification of the Appellant, whom he knew from his working experience at the Detention Centre.

44. [74]

    It has not been demonstrated that the further evidence of Officer Kiner by reference to the ABC and mobile phone footage constituted opinion evidence. Rather, the present case falls within the circumstances described by Simpson J in R v Drollett at [54]-[55].

45. [75]

    The fact that Officer Kiner may not have been observing events on top of the roof of the Macquarie Building from the same angle as that depicted in the film, did not operate against his giving evidence by reference to the footage of events, at least some of which he himself had observed. As Simpson J noted in R v Drollett at [55], an example of factual evidence of this type arises where the person depicted is photographed from the rear or partly obscured. In my view, this is a fair description of some of the visual images shown to Officer Kiner and the jury about which he gave evidence.

46. [76]

    The Appellant faces a substantial hurdle with this ground of appeal. He must demonstrate that Officer Kiner’s challenged evidence falls on the opinion side of the blurred boundary that lies between fact and opinion. There is no bright line test to be applied. Unlike other cases where this issue has arisen (see [54] and R v Drollett), Officer Kiner was present at the scene and testified that he had seen the Appellant on the roof with tiles in his hands. The ABC footage provided strong and clear evidence adverse to the Appellant, if the jury was satisfied that Officer Kiner had correctly identified the Appellant.

47. [77]

    I am not persuaded that the evidence given by Officer Kiner which is now challenged was opinion evidence. Rather, it was factual evidence which was not objected to, but was challenged by the Appellant’s counsel in cross-examination and closing address upon the basis that this was a case of mistaken identity.

48. [78]

    The Appellant has not demonstrated that a miscarriage of justice has occurred, so that leave to rely upon the first ground of appeal should be refused under Rule 4.

Ground 3 - The Unreasonable Verdict Ground

1. [79]

   In support of this ground, counsel submitted that Officer Kiner’s evidence was not reliable, that it was based upon his “belief” that the Appellant was the person whom he observed lifting tiles off the roof, and that the footage was not of sufficient clarity taken on its own, or in conjunction with the evidence of Officer Kiner, to support the conviction of the Appellant.

2. [80]

   It was submitted that Officer Kiner had made mistakes with respect to names of persons and that this served as well to undermine the cogency of his evidence. Counsel submitted that there was no evidence upon which this Court was able to favourably assess the reliability of Officer Kiner’s belief in support of the conclusion that the relevant detainee was in fact the Appellant.

3. [81]

   The Crown referred again to the evidence of Officer Kiner, as summarised at [59]-[60] above, in support of the submission that the verdict in this case was not unreasonable.

4. [82]

   The Crown submitted that the jury had the evidence of the ABC footage which, taken with other evidence, assisted a finding that it was the Appellant (amongst others) depicted on the roof. The jury had available evidence of the Appellant’s image in the nominal roll, and had been able to observe him during the course of the trial. It was open to the jury to conclude, from their own observations, that it was the Appellant depicted in the footage lifting tiles from the roof and throwing them, both being acts of violence for the purpose of the charge.

5. [83]

   The Crown submitted that this Court would be assisted by its own viewing of the relevant footage, in the same way as the Court had been assisted in Dodds v R [2009] NSWCCA 78; 194 A Crim R 408 at 433-434 [99], [102].

6. [84]

   The Crown submitted that Officer Kiner had given evidence of his familiarity with the Appellant. It was submitted that the Appellant did not challenge Officer Kiner’s capacity to give such evidence on the basis that he did not know him well enough to be able to identify him. Rather, the Appellant’s challenge to Officer Kiner’s evidence involved assertions that he used the nominal roll to assist him to identify people on the night, or that he may have been mistaken about the name of the person he saw, or that he was mistaken that it was the Appellant that he saw.

7. [85]

   The Crown submitted that, having regard to the evidence before the jury, the verdict of guilty was reasonable.

8. [86]

   In Geitz v R [2013] NSWCCA 289, Beazley P (Price J and myself agreeing) set out, at [32]-[37], the principles to be applied in determining a ground of appeal that a conviction is unreasonable or cannot be supported having regard to the evidence:

9. [87]

   For the purpose of determining this ground, I have had regard to the entirety of the evidence referable to the Appellant, including the evidence of Officer Kiner and the mobile phone and ABC footage contained in Exhibits C and J, which I have reviewed again in Chambers since the hearing of the appeal.

10. [88]

    I have kept in mind, as well, the fact that the jury had the opportunity to observe the Appellant during the trial, in conjunction with still and moving photographs said to depict the Appellant, as relied upon by the Crown.

11. [89]

    I have had regard to the careful directions given to the jury by the trial Judge with respect to identification and recognition evidence (SU14-19; AB178-183). Those directions were not challenged before this Court. They constitute an appropriate reminder to this Court of its approach to assessment of evidence of this type.

12. [90]

    It is the case that some criticism may be made of the evidence of Officer Kiner. He had made some mistakes with respect to names during his evidence. An examination of the transcript of his evidence indicates that he used the term “belief” or “believe” from time to time. A fair reading of his evidence, however, indicates that this was a term used by him in circumstances where, in fact, he was expressing an unqualified identification of the Appellant. His turn of phrase did not involve a form of watered-down expression, indicating an element of doubt or uncertainty in his own mind.

13. [91]

    It was the evidence of Officer Kiner that he knew the Appellant and had dealings with him over a period of time whilst the Appellant had been detained at the Detention Centre since 9 September 2010. The Appellant was not a stranger to Officer Kiner.

14. [92]

    This Court has not had the extended opportunity to observe the Appellant during the course of the trial which was available to the jury. The jury, of course, had an opportunity to observe Officer Kiner give evidence over a reasonably extended period.

15. [93]

    However, the Court has viewed relevant extracts of the footage in Exhibits C and J, in conjunction with other evidence including that of Officer Kiner.

16. [94]

    Exhibit C is of particular importance. It is good quality footage, to be distinguished from the poor quality images referred to in R v Beattie, R v Marsh and R v Drollett.

17. [95]

    The person identified by Officer Kiner as the Appellant is clearly visible in Exhibit C, performing various acts as follows (using the counter number on the disk provided to the Court):

18. [96]

    Having made an independent assessment of the evidence, I am satisfied, upon the whole of the evidence, that it was open to the jury to be satisfied beyond reasonable doubt that the Appellant was guilty of the offence of which he was convicted: M v The Queen [1994] HCA 63; 181 CLR 487 at 493.

19. [97]

    It has not been demonstrated that a jury must, as distinct from might, have entertained a doubt about the Appellant’s guilt: Libke v The Queen [2007] HCA 30; 230 CLR 559 at 596-597 [113]; Geitz v R at [32]-[37] (cited at [86] above).

20. [98]

    I would reject the third ground of appeal.

Proposed Orders

1. [99]

   I propose the following orders:

2. [100]

   HALL J: I have read in draft the judgment of Johnson J and I am in agreement with his Honour’s reasons in respect of Grounds 1 and 3 of the Grounds of Appeal, and the orders which his Honour has proposed.

3. [101]

   In relation to Ground 3, the “unreasonable verdict” ground, having read the evidence, including in particular the evidence of Officer Kiner, and having, in particular, again examined the ABC footage concerning relevant events that occurred on 20 April 2011 at the Villawood Immigration Detention Centre (Exhibit C) in Chambers and viewed the mobile phone footage (Exhibit J), in my assessment, the evidence of Officer Kiner was reliable and cogent identification evidence in relation to the Appellant.

4. [102]

   Officer Kiner made three statements in relation to the events of 20 April 2011. The statements were made on 23 April 2011, 6 June 2011 and 31 October 2012 and were tendered on the voir dire hearing though not in the trial. It was not suggested to him in the cross-examination on behalf of the Appellant that any of his abovementioned statements contained any contradictions of significance on the identification issue.

5. [103]

   Officer Kiner’s evidence was that he was well-acquainted with the detainees in the Fowler Compound of the Detention Centre, and had dealt with them on a daily basis. The evidence was that he identified the Appellant on the night of 20 April 2011 on the roof of the premises. Officer Kiner said he was “one hundred per cent” certain that the Appellant was one of those on the roof. He also identified the Appellant in the ABC footage as one of the men who were throwing things from the roof and assisting others who were doing so.

6. [104]

   Officer Kiner was cross-examined upon the basis that many of the detainees were of Middle Eastern appearance and had physical features in common. Whilst this was accepted, Officer Kiner on a number of occasions emphasised the extent to which he had come to know the detainees. He rejected the proposition that similarity of physical features made it difficult for him to identify those involved in the activities on the night in question. The proposition was rejected in part upon the proposition:

7. [105]

   In the course of the summing up his Honour reminded the jury that the Crown case against the Appellant was dependent upon a single witness, Officer Kiner. The trial Judge referred to the matters that counsel for the Appellant relied upon in his closing address and concessions made by Officer Kiner. These included similarities in the physical appearances of many of the detainees, many having the same or similar sounding first names or surnames, and that three detainees had the surname Haidari. The jury were reminded of the circumstances in which the identification was made including the fact that it occurred at night time in a chaotic situation. The jury were reminded of the matters that counsel had relied upon to support the possibility as a reasonable one that Officer Kiner had put the wrong name to a particular client that he observed throwing tiles from the roof. The jury were reminded that counsel for the Appellant had pointed out that Officer Kiner frequently used the expression “I believe” which, it had been submitted on behalf of the Appellant, suggested some doubt in his mind as to the correctness of the identification.

8. [106]

   Finally, the jury were reminded of the submission made as to the claimed difficulty in identifying the Appellant from the ABC video and the photographs, it having been submitted that he had never directly faced towards the camera and had no distinguishing features.

9. [107]

   As Johnson J has observed, no criticism was or could have been made as to the trial directions given, in particular, on the issue of identification.

10. [108]

    The evidence, following close analysis, in my opinion, excluded the possibility of any reasonable doubt on the issue of identification.

11. [109]

    Following a review of the evidence I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the Appellant was guilty of the offence charged.