R v WE (No.2)

[2019] NSWSC 854

Supreme Court

New South Wales

Medium Neutral Citation:	R v WE (No.2) [2019] NSWSC 854
Hearing dates:	8 July 2019
Date of orders:	08 July 2019
Decision date:	08 July 2019
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [11]
Catchwords:	CRIMINAL LAW – Juries – Practice and procedure – Where accused charged with doing acts in preparation for, or planning, a terrorist act or acts – Where Crown sought to provide jury with a Chronology in the nature of a “road map” of the evidence – Where objection was taken by counsel for the accused on the basis that to provide the jury with the Chronology would be prejudicial – Desirability of giving all possible assistance to the jury providing such assistance does not prejudice the right of the accused to a fair trial – Chronology provided
Cases Cited:	R v Elomar & Ors (No. 1) [2008] NSWSC
Category:	Procedural and other rulings
Parties:	Regina – Crown WE – Accused
Representation:	Counsel: P McGuire SC and B Anniwell – Crown J Trevallion and L Gallagher – Accused   Solicitors: Director of Public Prosecutions (Cth) – Crown Alexanders Lawyers – Accused
File Number(s):	2016/305103
Publication restriction:	Nil

Judgment – EX TEMPORE (REVISED)

1. The accused is charged with doing acts in preparation for, or planning a terrorist act or acts. His trial commenced today and has an estimate of four weeks.

2. The Crown has indicated an intention to make available to the jury a document bearing the name of the accused and headed "Chronology", a copy of which is exhibit “A” on the present application. As its title suggests, the document sets out, in a chronological form, a number of facts upon which the Crown will rely in its case against the accused, including occasions on which the accused accessed so-called “extremist” footage on his computer.

3. Objection was initially taken by counsel for the accused to three specific entries in the Chronology. Two of those objections have now been resolved, and I will return to the third in due course. However beyond those specific matters, counsel for the accused has objected to the Chronology being provided to the jury. It should be noted that there is no dispute whatsoever that the entries in the Chronology are entirely accurate.

4. The Crown has submitted that the provision of the Chronology would assist the jury to follow the evidence as it unfolds. The Crown described the document as a "road map" of undisputed facts, drafted in general and benign terms. In the course of argument, the Crown took me to various entries which, it was submitted, made good these propositions.

5. Counsel for the accused, whilst expressly accepting the factual accuracy of the entries Chronology, submitted that it would be highly prejudicial to the accused if it were provided to the jury. In support of that proposition counsel firstly submitted that the jury would be likely to treat the Chronology as evidence. Secondly, to the extent that the Chronology refers (by title) to extremist footage accessed by the accused, counsel submitted that such titles (the accuracy of which, I again note, are not disputed) were not a true indicator of the content of the footage in each case, nor an indicator of the fact that the accused may have held a particular ideological cause at the time. Thirdly, counsel submitted that until such time as he cross-examined relevant witnesses as to the circumstances surrounding the accused’s accessing of that material, the jury would not be given a true picture of the context in which that had taken place. It was submitted that this ran a risk of the jury forming an inaccurate view as to the probative value of that evidence. Finally, it was submitted that this was, in relative terms, a short trial and that in those circumstances, the jury did not need, and would not be assisted by, the Chronology.

6. In R v Elomar & Ors (No. 1) [1] , Whealy J presided over the trial of five accused charged with conspiring to do acts in preparation for a terrorist act or acts. Those proceedings had a far longer estimate than the present trial, and ultimately proceeded for a period of approximately 12 months. The Crown sought to provide the jury with a Chronology in a form similar to exhibit “A”, to be used by the jury as an aid to understanding the evidence as it unfolded. That course was objected to by counsel for the accused.

   1. [2008] NSWSC 1442.

7. In determining that the Chronology should be provided to the jury, his Honour concluded[2] that in a trial of such factual complexity and length, a road map in the form of a Chronology was "really essential", and that without such assistance, the jury would be likely to become completely lost and “flounder in a sea of uncertainty". The present proceedings will obviously be far shorter in length, and are substantially less factually complex, than those before Whealy J. However, those considerations do not render his Honour’s observations any less apt. They most certainly do not lead to a conclusion that the Chronology which the Crown seeks to provide in this trial would not assist the jury in the manner contemplated by his Honour.

   2. At [13].

8. In dealing with the objections taken by counsel (which were, at least in some respects, not dissimilar to those taken on behalf of the present accused), Whealy J observed[3] that the Chronology was "no more than a road map outlining, in chronological sequence, the factual allegations that the Crown suggests will arise from the evidence to be called". That accurately describes the Chronology which the Crown seeks to give the jury in the present case. His Honour also observed[4] that "the document was not designed to address issues of admissibility".

   3. At [6].

   4. At [6].

9. In concluding that the document ought be provided to the jury, his Honour[5] took issue with the adoption of any course which would allow the jury to "stumble along amidst a morass of uncertainty” in what he described as a “factually complicated and detailed trial". I again acknowledge that the present trial is substantially less factually complex than that which was before his Honour. However, I do not accept the proposition advanced by counsel for the accused that this leads to the conclusion that the members of the jury “don’t need” the Chronology, or would not be assisted by it. In my view, in any criminal trial, the jury should be given any assistance which is available, providing of course that the right of the accused to a fair trial is not put at risk by doing so. For the reasons that follow, I do not accept that the Crown’s provision of the Chronology to the jury in the present case would have that effect.

   5. At [7].

10. I do not accept the proposition advanced by counsel for the accused that the jury would be likely to consider the Chronology as evidence, for the simple reason that if it were to be provided, the jury would be directed, in specific terms, that the Chronology is to be used as a guide to, that it does not constitute, and that it cannot be used as a substitute for, the evidence. It is well settled that criminal trials proceed on the basis that juries act in accordance with directions provided by the trial judge. The remaining objections raised by counsel for the accused, namely that the titles of the footage accessed by the accused are not a good indicator of their content, and the asserted inability to place matters in their proper context until they are cross-examined upon, can be met with the same response, and could be overcome by the proposed direction.

11. It follows that in my view, no unfair prejudice will flow to the accused in the event that the Chronology is provided to the jury. I propose to allow that course to be taken.

12. That leaves me to deal with one remaining entry about which there is a specific objection. The entry refers to the fact that on 6 October 2016, at 5.38pm, the accused and his co-accused attended the Bankstown Gun Shop. The Chronology contains the following precis of what occurred:

“Going pig hunting - looking to buy pig hunting knives". N Ballas, asked if over 16, how much to spend - looking for something cheap...pointed to black M Tech America knife 'that's perfect'.”

13. In my view, that passage extends beyond what is necessary, and should be excluded.

14. After that entry, there is a reference in the following terms:

Purchased two M Tech hunting knives $40 each. Male with beard paid and did talking.

15. Counsel for the accused submitted that the words “purchase of” should be substituted for the word “purchased”. That amounts to quibbling about semantics. There is nothing objectionable about the use of the word “purchased”. However, the last sentence which makes reference to a “male with beard" (who is the co-accused) paying and doing the talking, goes beyond what is required for the purposes of the document, and should be excluded. There is nothing prejudicial about the balance of the entry, and it can remain.

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Endnotes

Decision last updated: 08 April 2020