R v Khan (No 9)

[2019] NSWSC 361

Supreme Court

New South Wales

Medium Neutral Citation:	R v Khan (No 9) [2019] NSWSC 361
Hearing dates:	3 April 2019
Date of orders:	03 April 2019
Decision date:	03 April 2019
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	Evidence admitted
Catchwords:	CRIMINAL LAW – Evidence – Accused charged with the commission of a terrorist act - Where Crown sought to tender evidence of a photograph of the victim wearing a particular t-shirt - Where evidence that the motif on that t-shirt resulted in the victim of the attack being targeted by the accused – Photograph of t-shirt already in evidence – Whether evidence relevant – Evidence admitted
Legislation Cited:	Evidence Act 1995 (NSW)
Category:	Procedural and other rulings
Parties:	Regina (Crown) Ihsas Khan (Accused)
Representation:	Counsel: P McGuire SC and K Curry (Crown) T Anderson (Accused)   Solicitors: Director of Public Prosecutions (Cth) (Crown) Legal Aid (NSW) (Accused)
File Number(s):	2016/272232
Publication restriction:	Nil

Judgment – EX TEMPORE (REVISED)

1. The accused has pleaded not guilty on the grounds of mental illness to engaging in a terrorist act, namely the stabbing of Wayne Greenhalgh. At the time of his interview with police the accused was asked [1] a series of questions as to how he came to choose Mr Greenhalgh as the victim of his attack. He told the police, in effect, that prior to stabbing Mr Greenhalgh he had seen him over a number of weeks wearing what he described as "pro-America t-shirts" bearing the word "freedom". The accused described that as "the main reason" why he chose Mr Greenhalgh as the victim of his attack. It should be emphasised that Mr Greenhalgh was not wearing this t-shirt at the time of being attacked.

   1. Commencing with question 47 on p. 422 of Exh A.

2. The Crown tendered [2] a photograph of the front of the t-shirt to which the accused referred which bears the words "Land of the free, because of the brave" amongst stars and stripes, and against a background of a number of soldiers raising an American flag in an image that is known around the world.

   2. Exh C.

3. At the time of the tender of that photograph, a second photograph of Mr Greenhalgh wearing the t-shirt became MFI 1. The reason the Crown did not tender that second photograph was that it included the images of two young children whom Mr Greenhalgh was nursing at the time.

4. On 1 April I received a note from the jury [3] which was in these terms:

“Is it possible to get a copy of the image of the victim wearing the 'Land of the free' American t-shirt?”

3. MFI 11.

5. When that question came from the jury, I explained (with the agreement of counsel) that the conduct of the respective cases was a matter for the parties, and that I was unable to determine whether or not a photograph of the kind that had been requested would be tendered.

6. No doubt prompted by the jury’s question, the Crown has now produced an edited version of MFI 11, with the images of the children cropped out. The Crown now seeks to tender that photograph. Objection has been taken to the tender by Mr Anderson who appears for the accused. Mr Anderson submitted that in circumstances where Mr Greenhalgh was not wearing the t-shirt at the time of the attack, the photograph was not relevant. He further submitted that the tender of the photograph would add nothing to the evidence which is already available.

7. In my view, the photograph is clearly relevant to the sole issue in the case, namely the accused’s mental state at the time of the attack. Although, as Mr Anderson pointed out, Mr Greenhalgh was not wearing the t-shirt at the time of being stabbed, and although a photograph of the front of the t-shirt is already in evidence, the relevance of the additional photograph stems, at least in part, from what the accused told police during his interview, namely that he had “targeted” Mr Greenhalgh because he had seen him wearing the t-shirt previously. The Crown will argue, based upon what the accused said to police, and also what he told one or more medical practitioners, that this was a targeted attack, and that the fact that it was targeted is inconsistent with the accused not appreciating the wrongfulness of his act, and inconsistent with the accused attacking Mr Greenhalgh when he was in the throes of a psychotic or schizophrenic episode.

8. It was not suggested that the probative value of the photograph was outweighed by the danger of any unfair prejudice which would arise from its tender. It will, however, be appropriate in the circumstances to warn the jury that they should not speculate as to those parts of the image which have been cropped out.

9. In those circumstances the photograph will be admitted.

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Endnotes

Decision last updated: 10 May 2019