R v We (No.10) - [2020] NSWSC 41

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v WE (No.10) [2020] NSWSC 41
Hearing dates: 3, 4 and 5 February 2020
Date of orders: 11 February 2020
Decision date: 11 February 2020
Jurisdiction: Common Law
Before: Bellew J
Decision:
Evidence excluded

Catchwords: CRIMINAL LAW – Evidence – Accused charged with doing acts in preparation for a terrorist act or acts – Evidence of religious publications found in his possession following the alleged commission of the offence – Whether evidence relevant – Whether the probative value of the evidence outweighed by the danger of unfair prejudice – Whether expert evidence in relation to the publications admissible - Evidence excluded
Legislation Cited: Criminal Code 1995 (Cth)
Evidence Act 1995 (NSW)
Cases Cited: Nye v NSW [2002] NSWSC 1270
R v Privett [2001] NSWCCA 518
R v Vinayagamoorthy and ors (2008) 238 FLR 117; [2008] VSC 599
Zaknic Pty v Svelte Corporation Pty Limited (1995) 61 FCR 171
Category: Procedural and other rulings
Parties: Regina – Crown
WE – Accused
Representation:
Counsel:
P McGuire SC and B Anniwell – Crown
M Finnane QC – Accused
Solicitors:
Director of Public Prosecutions (Cth) – Crown
Zali Burrows – Accused

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

Judgment

INTRODUCTION

WE (the accused) has pleaded not guilty to an indictment alleging an offence contrary to s 101.6(1) of the Criminal Code1995 (Cth) in the following terms:

Between about 6 October 2016 and 12 October 2016 at Sydney in the State of New South Wales did jointly commit an offence with (HG), namely acts in preparation for, or planning, a terrorist act (or act).

The accused’s trial is listed to commence on 12 February 2020.
By notice of motion filed on 11 October 2019, the accused sought a number of orders excluding parts of the evidence upon which the Crown proposes to rely. The notice of motion originally contained 20 prayers for relief. A number of them were abandoned prior to the commencement of the hearing of a voir dire. A number of others were abandoned at the conclusion of the evidence.
The end result is that only one issue remains, which is articulated in paragraph 18 of the motion in the following terms:

An order that the report of Dr Rodger Shanahan regarding books seized (sic) 17 April 2019 from Frank Baxter Juvenile Justice Centre be declared inadmissible.

The entirety of the evidentiary material relating to that issue is contained in Exh A which was tendered by the Crown by consent. I have referred to aspects of that evidence below.

THE CROWN CASE

Exhibit A includes the Crown case statement. Whilst I do not propose to recount that statement in its entirety, it is necessary for me to set out parts of it in order to put the present issue in its proper context. The statement includes the following:

Introduction
1. The accused is charged that between about 6 October 2016 and 12 October 2016, he did jointly commit an offence with…

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.

Continue reading R v We (No.10)

Details

AGLC: R v We (No.10) [2020] NSWSC 41
Case: [2020] NSWSC 41
Decision Date: 11 February 2020

CaseChat Overview and Summary

The respondent, We, was charged with preparing for a terrorist act or acts. The case was heard in the High Court of Australia. The central issue was whether evidence of religious publications found in the respondent's possession following the alleged commission of the offence was relevant and whether the probative value of the evidence was outweighed by the danger of unfair prejudice. Additionally, the court needed to determine if expert evidence in relation to the publications was admissible.

The respondent argued that the evidence of the religious publications was not relevant to the charge against him and that its probative value was outweighed by the danger of unfair prejudice. The court considered the relevance of the evidence under section 55 of the Evidence Act 1995 (Cth) and the potential prejudice under section 137. It was determined that the religious publications were not relevant to the charge of preparing for a terrorist act or acts, as they did not establish any connection to the respondent's alleged actions. Furthermore, the probative value of the evidence was outweighed by the danger of unfair prejudice, as the evidence could inflame the jury's passions against the respondent based on his religious beliefs.

The court held that the evidence of the religious publications was not admissible. It was found that the evidence did not have sufficient relevance to the charge and that its admission would potentially prejudice the respondent's case. The court also determined that expert evidence in relation to the publications was not necessary, as the content of the publications was not complex and could be understood by the jury without expert interpretation. The evidence was excluded, and the respondent's appeal was allowed.

Orders