R v We (No.14)

[2020] NSWSC 315

Supreme Court

New South Wales

Medium Neutral Citation:	R v WE (No.14) [2020] NSWSC 315
Hearing dates:	19 March 2020
Date of orders:	20 March 2020
Decision date:	20 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 –Self-represented accused – Where accused sought to tender evidence of a large volume of documentary material found on an electronic device seized by police – 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:	Evidence Act 1995 (NSW)
Cases Cited:	R v WE (No. 13) [2020] NSWSC 225
Category:	Procedural and other rulings
Parties:	Regina – Crown WE – Accused
Representation:	Counsel: P McGuire SC and B Anniwell – Crown Accused – Self-represented   Solicitors: Director of Public Prosecutions (Cth) – Crown Accused – Self-represented
File Number(s):	2016/305103
Publication restriction:	Nil

Judgment – EX TEMPORE (REVISED)

1. In the course of his evidence-in-chief before the jury on 19 March 2020, the accused (who is now self-represented, having withdrawn his instructions from his previous counsel and solicitor some days ago) indicated that he wished to tender, and play to the jury, 13 excerpts of video footage which had been accessed through, or downloaded onto, electronic devices which were seized by the police at the time of his arrest. The excerpts of footage are set out in the transcript. [1]

2. The first three excerpts constituted a series entitled "The Life of Muhammad" which is a lecture series containing a total of 53 separate chapters. Of the remaining excerpts of footage, four are covered by a previous ruling made when the accused was represented and should be excluded for the reasons previously given. [2]

3. Although initially foreshadowing an objection to the remaining six excerpts of footage, the Crown revised its position and withdrew its objection to all but "The Life of Muhammad". The Crown explained that this footage is in the nature of what might be described as religious teachings, and emphasised that there was no suggestion that it is of an extremist nature. Indeed, the Crown went so far as to indicate that it would be prepared to concede, before the jury, that this material was of a generally religious nature.

4. As I understood it, the accused wished to play the entirety of this footage to the jury for the purpose of grounding a submission as to the use that the jury should make of, and the inferences that they should draw from, the extremist material relied upon by the Crown which was downloaded from the various devices. [3]

5. In objecting to its tender, the Crown adopted the same position as it had on the previous occasion when a similar issue arose, and relied on section 135(c) of the Evidence Act1995 (NSW) (“the Act”). The Crown submitted that I should exercise my discretion pursuant to that section to exclude the evidence. In articulating that position, the Crown informed me that if the entirety of the footage were played, it would take approximately 30 hours, or approximately six days of court time. I infer from what the accused said that he proposed to play the entirety of this material. [4]

6. The issues now raised are identical to those dealt with in my previous judgment, in which I addressed the provisions of section 135(c) of the Act, and the principles applicable to the exercise of the discretion contained in that section. [5] The reasoning applied on that occasion should again be applied on this occasion. [6] For the reasons previously expressed, I am satisfied that the probative value of the material which is the subject of the present application is low, and is substantially outweighed by the danger that if tendered, it could cause an undue waste of time.

7. For those reasons, that evidence will not be admitted. However, I emphasise for the benefit of the accused that the Crown is prepared to make the concession to which I earlier referred.

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