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)

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.
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.
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.
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.
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…

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.2)

Details

AGLC: R v WE (No.2) [2019] NSWSC 854
Case: [2019] NSWSC 854
Decision Date: 08 July 2019

CaseChat Overview and Summary

In this case, the respondent was charged with several offences including planning a terrorist act, possessing a document useful for a terrorist act, and possessing a thing for the preparation of a terrorist act. The case was heard in the Supreme Court of Victoria, where the jury was the trier of fact. The primary issue before the court was whether it was appropriate to provide the jury with a Chronology of the evidence, which the Crown sought to do to assist the jury in understanding the case.

The court considered the principles of the criminal justice system, particularly the right of the accused to a fair trial and the need to give all possible assistance to the jury. The court concluded that while it was important to assist the jury in understanding the evidence, it was also crucial that this assistance did not prejudice the right of the accused to a fair trial. The court found that the Chronology, when properly explained to the jury, would not prejudice the accused but would rather aid the jury in understanding the evidence and the case as a whole.

Ultimately, the court decided in favour of the Crown and allowed the Chronology to be provided to the jury. The court emphasised that the Chronology was not intended to be a summary of the evidence or a conclusion by the Crown, but rather a tool to assist the jury in understanding the evidence presented. The court also instructed the jury that the Chronology was not evidence and should not be considered as such. The court was satisfied that with proper instructions, the Chronology would not prejudice the respondent's right to a fair trial.

The final order of the court was that the Chronology could be provided to the jury, subject to the court's instructions to the jury regarding its use. The court also ordered that the jury be instructed that the Chronology was not evidence and should not be considered as such.

Orders