R v HG; R v We (No 3)

[2018] NSWSC 1210

Supreme Court

New South Wales

Medium Neutral Citation:	R v HG; R v WE (No 3) [2018] NSWSC 1210
Hearing dates:	3 August 2018
Date of orders:	03 August 2018
Decision date:	03 August 2018
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [11]
Catchwords:	EVIDENCE – Relevance – Probative value – Danger of unfair prejudice – Accused charged with committing acts in preparation for a terrorist act or acts – Where Crown relied upon evidence of the accused refusing to stand for the National Anthem at a school assembly as evidence going to his intention and ideology – Where Crown sought to lead further evidence of absences from school on days when National Anthem was played – Where Crown case on ideology circumstantial – Necessity to consider circumstantial case as whole – Evidence relevant – No danger of unfair prejudice in the sense of possible misuse by the jury – Evidence admitted
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	Nye v State of NSW [2002] NSWSC 1270 R v Hillier (2007) 228 CLR 618; [2007] HCA 13 R v Privett [2001] NSWCCA 518 Zaknic Pty Ltd v Svelte Corporation Pty Ltd [1995] FCA 1739; (1995) 140 ALR 701
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)

1. The Crown seeks to lead evidence of the fact that both of the accused refused to stand for the National Anthem at a school assembly on 17 June 2014. In addition, the Crown seeks to lead evidence of subsequent absences from school on the part of the accused WE during the course of 2014, in circumstances where many of those absences coincided with days on which the National Anthem was to be played.

2. Counsel for the accused WE has objected to that evidence.

3. The nature and extent of the accused's absences from school are set out in a document which forms part of exhibit A on the voir dire. Put simply, it is the Crown’s position that the evidence goes to the intention and ideology of the accused.    

4. Counsel for the accused submitted that the evidence was not relevant, and that if it was found to be so, it should be excluded under s 137 of the Evidence Act 1995 (NSW) (‘the Act’). Counsel submitted that the fact that the accused may have been absent from school as asserted by the Crown did not go to any fact in issue in the trial. He further submitted that the probative value of the evidence was low, and that there was a danger of unfair prejudice arising from the fact that the evidence was capable of inferring, amongst other things, that the accused had a predisposition to disobey authority.

5. Section 55 of the Act is in the following terms:

55 Relevant evidence

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

(2) In particular, evidence is not taken to be irrelevant only because it relates only to:

(a) the credibility of a witness, or

(b) the admissibility of other evidence, or

(c) a failure to adduce evidence.

6. Section 137 of the Act is in the following terms:

137 Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

7. Relevance is a test of logical connection. That test, given the terms of s 55, is a wide one. For the purposes of that section, the word "could" has been interpreted as meaning "it is possible that it may": Nye v State of NSW [2002] NSWSC 1270. Moreover, the width of s 55 can be gauged from the fact that, by its very terms, the effect of the evidence in question upon the assessment of the probability of a fact in issue may be direct or indirect: Zaknic Pty Ltd v Svelte Corporation Pty Ltd [1995] FCA 1739; (1995) 140 ALR 701; R v Privett [2001] NSWCCA 518.

8. The evidence sought to be adduced by the Crown forms part of a circumstantial case in support of the conclusion that the accused had the relevant intention, and a particular ideology. A circumstantial case must be assessed as a whole, and not in a piecemeal fashion: R v Hillier (2007) 228 CLR 618, [2007] HCA 13 at [46] to [48].

9. Viewed in that way, the evidence is clearly relevant and in my view its probative value is significant. This is particularly so when it is taken into account with other evidence relied upon to support the conclusions which will be advanced by the Crown. That other evidence includes, but is not limited to, what might be described as ‘extremist’ material which was found on various devices to which the accused was connected.

10. Accepting that the evidence is relevant, and that its probative value is significant, I am not satisfied that such probative value is outweighed by the danger of unfair prejudice. Section 137 is directed to danger of unfair prejudice which manifests itself in the possibility of the jury misusing the evidence in some particular way. In my view, there is no danger of misuse of the kind contemplated by s 137.

11. For these reasons the evidence will be admitted.

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Decision last updated: 08 April 2020