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)

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

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 1210
Decision Date: 03 August 2018

CaseChat Overview and Summary

The case of R v HG; R v We (No 3) involved two accused persons, HG and We, who were charged with offences related to their alleged preparation for committing terrorist acts. The Crown sought to introduce evidence of the accused's refusal to stand for the National Anthem at a school assembly, as well as their absence from school on days when the National Anthem was played. The accused objected to the admission of this evidence, arguing that it was irrelevant and would unfairly prejudice the jury against them. The court was required to determine the relevance and admissibility of this evidence in the context of the Crown's circumstantial case against the accused.

The legal issues that the court had to address included whether the evidence of the accused's refusal to stand for the National Anthem and their absences from school on such days was relevant to their intention and ideology, and whether the probative value of this evidence outweighed any danger of unfair prejudice. The court considered the Crown's case to be circumstantial and therefore had to consider the evidence as a whole to assess its admissibility. The court held that the evidence was relevant to the accused's ideology and intention, and that there was no danger of unfair prejudice in the sense of possible misuse by the jury. The evidence was therefore admitted.

The court found that the evidence of the accused's refusal to stand for the National Anthem and their absences from school on such days was relevant to their intention and ideology, and that the probative value of this evidence outweighed any danger of unfair prejudice. The court held that the evidence was properly admitted as part of the Crown's circumstantial case against the accused. The final orders of the court were not provided in the text.

Orders