R v HG; R v We (No 7)

[2018] NSWSC 1277

Supreme Court

New South Wales

Medium Neutral Citation:	R v HG; R v WE (No 7) [2018] NSWSC 1277
Hearing dates:	9 August 2018
Date of orders:	09 August 2018
Decision date:	09 August 2018
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [4] and [5]
Catchwords:	EVIDENCE – Admissibility of documents found in the possession of the accused in custody some weeks following his arrest – Where some of the documents expressed extremist views – Whether the probative value of the evidence was outweighed by the danger of unfair prejudice – Evidence admitted
Legislation Cited:	Evidence Act 1995 (NSW)
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

INTRODUCTION

1. The accused HG and WE have pleaded not guilty to a charge of doing an act or acts in preparation for a terrorist act or acts. The Crown seeks to tender, in its case against the accused HG, some notes found in his possession some weeks after he was taken into custody following his arrest on 12 October 2016. The notes are dated 18 November 2016. Translations of them appear in an annexure to the statement of Joelle Dib of 18 January 2017 in the following terms:

(i)   Translation of image marked '18/11/201615:27'

Translation above window:

There is no God but God

Mohammed is the messenger of God

Translation to the right side of the window:

No God Except God

Loyalty

Translation to the left side of the window:

And say: Truth has arrived, and Falsehood perished'

Patience

Wisdom

(ii)   Translation of image marked '18/11/201615:30-1'

Translator's note: Arabic text in Image not captured from the beginning of the sentence, so the translation might not make sense and It could change the context if the Arabic text was shown in full

In the name of God, the merciful, the gracious #thecompanions

In the nation like the companions

And what is known and injury

Has seen the chosen one

The lights and the secrets

In God until it is shown

Guidance has named the religions

(iii)   Translation of image marked '18/11/201615:30-2'

By God, this life will parish

So rise to paradise with rolled up sleeves

We hove smelt the musk on our loved ones

And the face did not seem sad

As if the virgins called and said

Darling come to serenity

(iv)   Translation of image marked '18/11/201615:31'

Al-Tawheen (unification) Book

(v)    Translation of Image marked '18/11/201615:29-3'

In the name of God, the merciful, the gracious

There is no ruling except the ruling of God

There is no Sharia (Islamic law) except the sharia (Islamic law) of the merciful the gracious

Destruction destruction on the worshippers of the cross and idols

And the worshippers of rulers, scholars of evil and money

Peace peace upon the followers of the prophet and his righteous companions

Abu Baker and Ibin Al-Khattab

And Ibin Affan and Abi Thorab

(vi)   Translation of image marked '18/11/201615:29-4'

God is our Lord. He has many attributes

The only living one, the possessor. The king of kings, who has no partners

The strong, solid enables Sitting above his great throne

Like it has been mentioned in the Qur'an and Hadith (Prophetic book)

As it has been narrated by Moawiya and the nation, as the chosen prophet (peace be upon

him), said

Where is your almighty Lord

Where is your grand lord

Where is your merciful lord

She pointed towards the throne of the perfect one

So the beloved Eden (peace be upon him) said

You are a believer of the grand

The great Imam Malek said

Evenness is known

And amusement is unknown

(vii)   Translation of image marked '18/11/201615:30-3'

In the name of God, the merciful, the grodous

There is no ruling except the ruling of God

There is no Sharia (Islamic law) except the sharia (Islamic law) of the merciful the gracious

Destruction destruction on the worshippers of the cross and idols

And the worshippers of rulers, scholars of evil and money

Peace peace upon the followers of the prophet and his righteous companions

Abu Baker, Omar, AH, Osman, Moawiya Ibin Abi Sufyan, and peace upon the followers of

guidance

As to what follows,

(viii)   Translation of image marked '18/11/201615:30-4'

In the name of God, the merciful, the gracious tftbethrone ^unification

God is our Lord. He has many attributes

The only living one, the possessor. The king of kings, who has no partners

The strong, solid enabler. Sitting above his great throne

Like it has been mentioned in the Qur'an and Hadith (Prophetic book)

As it has been narrated by Moawiya and the nation, as the chosen prophet said to her,

Where is your almighty Lord

Where is your grand lord

Where is your merciful lord

She pointed towards the throne of the perfect one

So the beloved Eden (peace be upon him) said

You are a believer of the grand and almighty

The great Imam Malek said

God's evenness is known

And amusement is unknown

2. The proposed tender is limited to the notes in (iii), (v) and (vii). Senior counsel for HG, whilst accepting that they were relevant, submitted that they ought be excluded pursuant to s 137 of the Evidence Act 1995 (NSW) (‘the Act’). In support of that position, senior counsel submitted that the probative value of the notes was not high, and that it was outweighed by a danger of unfair prejudice arising from the fact that they were:

1. dated 6 weeks after the accused’s arrest;

2. seized when he was in custody;

3. in the nature of “his own jottings in his own private book that he had available to him”; and

4. found against a background of a “traumatic” arrest in which the accused had been “taken into custody by an aggregate of 10 to 20 or 30 policemen”.

3. The Crown submitted that notwithstanding the fact that the creation of the documents apparently post-dated the accused’s arrest, the evidence nevertheless supported the Crown case that the accused had an extremist ideology. The Crown accepted that not all of the notes were written in extremist terms and, as I have noted, limited the tender to items (iii), (v) and (vii).

4. Bearing in mind the basis upon which the Crown seeks to lead this evidence, the documents numbered (iii), (v) and (vii) are clearly relevant and admissible. References in each of those documents to matters such as “smelling the musk on our loved ones”, “destruction of the worshippers of the cross and idols” and “destruction … of the worshippers of rulers, scholars of evil and money” are of significant probative value. None of the matters advanced on behalf of the accused support a conclusion that such probative value is outweighed by the danger of unfair prejudice. There is not the slightest suggestion that if the evidence were admitted, the jury would engage in some impermissible process of reasoning. For those reasons, the documents are admissible.

5. The documents numbered (i), (ii), (iv), (vi) and (viii) have little probative value bearing in mind the basis on which the Crown argued that this material was relevant. Whilst they set out religious views, such views are expressed in terms which are other than extreme. In the course of argument, senior counsel for the accused foreshadowed that if I were to admit documents (iv), (v) and (vii), the remaining documents should also be tendered. For the reasons I have expressed, the remaining documents would appear to have little, if any, relevance to any issue in the trial. If senior counsel for the accused wishes those documents to be tendered, then that is a course which he should initially pursue in discussions with the Crown.

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Decision last updated: 08 April 2020