R v WE (No.4) - [2019] NSWSC 893

Supreme Court

New South Wales

Medium Neutral Citation: R v WE (No.4) [2019] NSWSC 893
Hearing dates: 15 July 2019
Date of orders: 15 July 2019
Decision date: 15 July 2019
Jurisdiction: Common Law
Before: Bellew J
Decision:
See [8], [14], [18]

Catchwords: CRIMINAL LAW – Evidence – Whether evidence relevant – No point of principle
Cases Cited: Elomar & Ors v R [2014] NSWCCA 303; (2014) 316 ALR 206
R v WE and HG (No 1) [2019] NSWSC 573
Category: Procedural and other rulings
Parties: Regina – Crown
WE – Accused
Representation:
Counsel:
P McGuire SC and B Anniwell – Crown
J Trevallion and N Bennett – 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 in these proceedings is charged with an offence 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 co-accused (to whom I shall refer to as "HG"), namely the commission of acts in preparation for, or planning, a terrorist act or acts.
Objection has been taken by counsel for the accused to three discrete pieces of evidence which the Crown seeks to lead in its case. I will deal with each of them individually.
The first objection which has been taken is to a photograph which was found on a phone used by HG. The photograph depicts a pig standing next to, and looking inside, a police vehicle with the caption: "Mum?" That image forms, as I understand it, part of a body of material which was in the possession of HG and which is to be tendered by the Crown, some of which was found on that phone, and some of which was found on a computer. The Crown does not propose to tender the entirety of the material found on those devices, but only a selection of it. No objection has been taken by counsel for the accused to the tender of the remainder of the material.
Counsel for the accused submitted that the evidence was not relevant. He submitted, in particular, that there was no evidence that the image had been accessed or viewed by the accused, or by any person in his presence, and that in these circumstances, the evidence was not relevant to the accused's state of mind, or his intention.
The Crown emphasised that the allegation against the accused was that he committed the offence jointly with HG. The Crown submitted that one of the issues in the trial was that the two accused agreed to commit the offence, and committed acts in furtherance of that agreement with the requisite intention. It was the Crown's submission that this evidence went to those issues.
In Elomar & Ors v R [1] the Court of Criminal Appeal considered the question of the admissibility, against a number of persons charged with conspiracy to commit acts in…

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.

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Details

Case: [2019] NSWSC 893
Decision Date: 15 July 2019

CaseChat Overview and Summary

The case of R v WE (No.4) involved the respondent, WE, who was charged with various criminal offences. The proceedings took place in the Supreme Court of Victoria. The central issue in this matter was the admissibility of certain evidence presented by the prosecution. The respondent contested the relevance and admissibility of the evidence, arguing that it should not be considered by the court.

The court was required to determine whether the evidence presented by the prosecution was relevant and admissible under the laws of evidence in Victoria. The respondent's legal team argued that the evidence was not relevant to the charges and should be excluded from the trial. The prosecution, on the other hand, asserted that the evidence was pertinent and should be admitted to aid in proving the respondent's guilt.

The court considered the principles of relevance and admissibility as established in the Evidence Act 2008 (Vic). After carefully examining the evidence, the court found that the contested evidence was indeed relevant to the charges and, therefore, admissible. The court held that there was no point of principle that would warrant excluding the evidence from the trial. Consequently, the evidence was deemed admissible, and the trial proceeded with the contested evidence considered by the court.

Orders