R v HG; R v WE (No 2) - [2018] NSWSC 1178

Supreme Court

New South Wales

Medium Neutral Citation: R v HG; R v WE (No 2) [2018] NSWSC 1178
Hearing dates: 31 July 2018
Date of orders: 31 July 2018
Decision date: 31 July 2018
Jurisdiction: Common Law
Before: Bellew J
Decision:
See [14]

Catchwords: EVIDENCE – Lay opinion evidence – Whether lay opinion necessary to obtain an adequate account or understanding of a perception or event – Where the witnesses were able to give evidence of their own direct observations – Test of necessity not met – Evidence excluded
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36; (2011) 281 ALR 223
Partington v R [2009] NSWCCA 232; 197 A Crim R 380
R v Hillier (2007) 228 CLR 618; [2009] HCA 13
Category: Procedural and other rulings
Parties: Regina – Crown
HG – Accused
WE – Accused
Representation:
Counsel:
I Bourke SC and R Ranken – Crown
B Walmsley QC – Accused HG
J Trevallion – Accused WE
Solicitors:
Director of Public Prosecutions (Cth) – Crown
Birchgrove Legal – Accused HG
Alexanders Lawyers – Accused WE

File Number(s): 2016/3051142016/305103
Publication restriction: Nil

Judgment – EX TEMPORE (REVISED)

HIS HONOUR: The Crown seeks to lead evidence in its case against the accused WE of an interview that was conducted between WE and officers of the Australian Security Intelligence Organisation (‘ASIO’) on 19 April 2016. Objections have been taken on behalf of WE to various parts of that interview. Whilst the majority of them have been resolved, one remains for determination.
The accused was interviewed by two officers of ASIO on 19 April 2016. Statements of each of those officers, to whom I shall refer as ‘Officer A’ and ‘Officer B’, were tendered on the voir dire. In paragraphs 7, 8 and 9 of the statement of Officer A, the following information is provided regarding the purpose and circumstances of the interview:

“7. On Tuesday 19 April 2016 myself and another ASIO officer conducted a security assessment review (SAR) of (WE) in the presence of (WE's) father. For the purposes of this statement, I refer to the other ASIO officer as ‘ASIO Officer B’.
8. SAR'S [sic] are conducted as part of the process of developing a security assessment.
9. The purpose of the interview was to assist ASIO's assessment of whether it would be consistent with the requirements of security for Waleed to hold an Australian passport and provide him an opportunity to respond to ASIO's security concerns.”

Annexed to the statement of Officer A was a redacted copy of a document entitled "Intelligence Report" which sets out what is effectively a narrative of the interview which was conducted. At issue are parts of paragraphs 74 and 75 of that report which are in the following terms:

“Observations
74. (WE) presented as uninterested, disengaged and unemotional throughout the interview and seemed to have approached the interview as an obligatory formality to appease his father.…

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: [2018] NSWSC 1178
Decision Date: 31 July 2018

CaseChat Overview and Summary

In the case of R v HG; R v WE (No 2), the respondents, HG and WE, were being tried for various offences, including murder. The primary issue before the court was the admissibility of lay opinion evidence. Specifically, the court had to determine whether such evidence was necessary to obtain an adequate account or understanding of a perception or event, where the witnesses were able to give evidence of their own direct observations. The respondents sought to have the jury instructed that they could take into account the lay opinion evidence, but the trial judge ruled that the evidence should be excluded.

The court found that the test of necessity was not met in this case, as the witnesses were able to provide their own direct observations. The court held that where a witness is able to provide a detailed account of their observations, lay opinion evidence is not necessary to assist the jury in understanding the perception or event. The court also noted that the potential prejudicial effect of the lay opinion evidence outweighed any probative value it may have had. The court concluded that the trial judge's decision to exclude the evidence was correct.

The court's reasoning was based on the principle that lay opinion evidence should only be admitted where it is necessary to obtain an adequate account or understanding of a perception or event. In this case, the witnesses were able to provide detailed accounts of their observations, and the court found that the lay opinion evidence did not add anything of value to the case. The court also considered the potential prejudicial effect of the lay opinion evidence, which could have influenced the jury's decision-making.

The final orders of the court were that the appeal against conviction be dismissed, and the conviction and sentences of the respondents be upheld. The court found that the exclusion of the lay opinion evidence did not affect the safety of the respondents' convictions, as there was ample evidence to support the convictions. The court also noted that the trial judge had given the jury an appropriate direction on the assessment of witness credibility, which included the consideration of the reliability and consistency of the evidence.

Orders