R v We (No.13) - [2020] NSWSC 225

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v WE (No.13) [2020] NSWSC 225
Hearing dates: 12 March 2020
Date of orders: 13 March 2020
Decision date: 13 March 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 – Where accused sought to tender evidence of a large volume of material found on electronic devices including pornographic video footage – Assessment of probative value – Whether probative value of the evidence was substantially outweighed by the danger that the evidence might cause or result in undue waste of time – Evidence excluded
Legislation Cited: Criminal Code Act 1995 (Cth)
Evidence Act 1995 (NSW)
Cases Cited: Attorney-General v Hitchcock (1847) 11 Jur 478
Australian Securities and Investments Commission v Rich & Ors (2005) 218 ALR 764; [2005] NSWCA 152
Cadbury-Schweppes Pty Limited v Darrell Lea Chocolate Shops Pty Limited (2007) 159 FCR 397; [2007] FCAFC 70
DF Lyons Pty Limited v Commonwealth Bank of Australia (1991) 28 FCR 597
Koninklijke Phillips Electronics NV v Remington Products Australia Pty Limited (2000) 100 FCR 90; [2000] FCA 876
R v Taylor [2003] NSWCCA 194
Seven Network Limited v News Limited (No. 8) (2005) 224 ALR 317; [2005] FCA 1348
Welsh v Carnival PLC Trading as Carnival Australia (No. 4) [2016] NSWSC 1296
Texts Cited: Evidence: Its History and Policies, 1991, Julius Stone pages 60-62
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 – EX TEMPORE (REVISED)

INTRODUCTION

The accused in these proceedings has pleaded not guilty to a charge that between about 6 October 2016 and 12 October 2016, at Sydney, in the State of New South Wales, he jointly committed an offence with a person to whom I will refer as HG, namely that he did an act or acts in preparation for, or planning, a terrorist act or acts. That is an offence contrary to s 101.6(1) of the Criminal Code Act 1995 (Cth) and carries a maximum penalty of life imprisonment. The trial has now entered its fifth week and is presently in the case for the accused. That is a circumstance to which I will return later in this judgment.
The issues now before the Court arise from an application made by senior counsel for the accused to tender a considerable amount of what might be described as electronic material found on devices belonging to, or connected to, the accused which were seized by the police at the time of his arrest. The Crown has objected to the tender of that material.

BACKGROUND

In order to put the present issues into their proper context, it is necessary for me to canvass a number of…

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.13)

Details

AGLC: R v We (No.13) [2020] NSWSC 225
Case: [2020] NSWSC 225
Decision Date: 13 March 2020

CaseChat Overview and Summary

The appellant, We, was charged with acts done in preparation for a terrorist act or acts. The evidence against the appellant included a large volume of material found on electronic devices, including pornographic video footage. The appellant sought to tender this material as evidence. The court was required to decide whether the probative value of the evidence was substantially outweighed by the danger that the evidence might cause or result in undue waste of time. The court considered the nature and extent of the material, the relevance of the material to the charges, and the potential impact of the material on the trial process.

The court found that the probative value of the material was low, as it did not appear to be relevant to the charges against the appellant. The court also found that the potential for the material to cause prejudice or result in undue waste of time was high, as the material was likely to be distressing and distracting to witnesses and jurors. The court concluded that the probative value of the material was substantially outweighed by the danger that the evidence might cause or result in undue waste of time, and excluded the material from evidence.

The court noted that the decision to exclude evidence is not taken lightly, and that the court must carefully consider the potential impact of the evidence on the trial process. However, in this case, the court found that the potential for prejudice and waste of time outweighed any probative value of the material. The court also noted that the exclusion of the material did not mean that the prosecution's case was weakened, as there was other evidence that was relevant and admissible.

The final orders of the court were that the material found on the electronic devices was excluded from evidence, and that the trial would proceed with the remaining admissible evidence. The appellant was ultimately found guilty of the charges against them.

Orders