R v HG; R v We (No 1) - [2019] NSWSC 573

Supreme Court

New South Wales

Medium Neutral Citation: R v HG; R v WE (No 1) [2019] NSWSC 573
Hearing dates: 16 July; 18 July; 19 July; 20 July; 23 July; 24 July 2018
Date of orders: 24 July 2018
Decision date: 24 July 2018
Jurisdiction: Common Law
Before: Bellew J
Decision:
See [79]; [93]; [99]; [104]; [122]; [130]; [149]

Catchwords:
EVIDENCE – Where two accused charged with doing acts in preparation for a terrorist act – Admissions made by one of the accused to police – Where that accused was under the age of 18 at the time – Where those admissions were made in the absence of an adult – Whether there was a proper and sufficient reason for the absence of an adult – No proper and sufficient reason – Opportunity for police to have an adult present – Where police encouraged the making of the statements by the offender in the absence of an adult – Evidence excluded in part

EVIDENCE – Where two accused charged with doing acts in preparation for a terrorist act – Where Crown sought to lead evidence of the accused in company at a prayer room shortly prior to their arrest – Whether evidence relevant – Whether if relevant evidence should be excluded on the basis that its probative value was outweighed by the danger of unfair prejudice – Evidence admitted

EVIDENCE – Where two accused charged with doing acts in preparation for a terrorist act – Evidence of disposal of items by the two accused at the time of doing such acts – Whether evidence relevant – Evidence admitted

EVIDENCE – Where two accused charged with doing acts in preparation for a terrorist act – Where Crown sought to lead evidence against one accused of his presence at a previous unrelated protest holding a sign promoting violent ideology – Whether evidence relevant – Whether evidence should be excluded on the basis that its probative value was outweighed by the danger of unfair prejudice – Evidence relevant to the accused’s extremist ideology – Evidence admitted

EVIDENCE – Where two accused charged with doing acts in preparation for a terrorist act – Where Crown sought to lead evidence against one accused of his admissions made regarding previous travel to parts of Egypt – Where admissions made outside of Australia to consular officers – Where officers of the Egyptian Government were in close proximity to the accused when the admissions were made – Where the accused had previously been held in Egyptian custody - Whether the admissions had been influenced by the violent and oppressive conduct to which the accused had been subjected when in previous custody – Evidence excluded

EVIDENCE – Where two accused charged with doing acts in preparation for a terrorist act – Where Crown sought to lead evidence of extremist material found on the mobile telephone and computer of one accused – No direct evidence that the accused had read or viewed the material – Whether evidence relevant –…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWSC 573
Decision Date: 24 July 2018

CaseChat Overview and Summary

In the case of R v HG; R v We (No 1), the High Court of Australia examined a range of issues concerning the admissibility of evidence in a terrorism-related trial. The two accused, HG and We, faced charges relating to acts in preparation for a terrorist act. The court was required to decide on the admissibility of various pieces of evidence, including admissions made by one of the accused to police, evidence of the accused in company at a prayer room, evidence of the disposal of items, evidence of previous travel to Egypt, and evidence of extremist material found on the mobile telephone and computer of one accused.

The court first addressed the admissibility of admissions made by one of the accused, HG, who was under 18 at the time. The court found that there was no proper and sufficient reason for the absence of an adult during the police interview, and the evidence was excluded in part. The court also considered whether evidence of the accused in company at a prayer room, evidence of disposal of items, and evidence of previous travel to Egypt was relevant and whether its probative value outweighed the danger of unfair prejudice. The court found this evidence relevant and admissible. Furthermore, the court found that evidence of extremist material found on the mobile telephone and computer of one accused was relevant to the state of mind of the accused and was admitted.

The court further addressed the application for a separate trial by the accused. The court found that there was no significant difference in the evidence to be led against the accused, and the application for a separate trial was refused. The court's reasoning was based on the similarity of the evidence against both accused and the lack of significantly different or weaker evidence against one accused. The final orders of the court were that certain evidence was excluded in part, certain evidence was admitted, and the application for a separate trial was refused.

Orders