R v WE (No.5)

[2019] NSWSC 912

Supreme Court

New South Wales

Medium Neutral Citation:	R v WE (No.5) [2019] NSWSC 912
Hearing dates:	16 July 2019
Date of orders:	16 July 2019
Decision date:	16 July 2019
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [12]
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 earlier objection was taken by counsel for the accused on the basis that to provide the jury with the chronology would be prejudicial – Where chronology provided – Where further objection taken to a particular entry in the chronology – Desirability of giving all possible assistance to the jury providing such assistance does not prejudice the right of the accused to a fair trial – Entry permitted
Cases Cited:	R v WE (No 2) [2019] NSWSC 854 R v WE (No 3) [2019] NSWSC 981
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)

1. The accused in this matter is charged with doing acts in preparation for, or planning, a terrorist act or acts. The Crown's allegation is that that offence was committed jointly with a co-accused, to whom I shall refer as "HG".

2. The accused's trial initially commenced before me on 8 July 2019. However, the jury in that trial was discharged on 11 July 2019. The circumstances leading to that discharge are set out in a previous judgment. [1]

   1. R v WE (No 3) [2019] NSWSC 981.

3. At the time of the commencement of the previous trial, the Crown indicated an intention to provide the jury with a chronology, which was described at the time as a "road map" of the evidence that the Crown intends to call. Objection was taken by counsel for the accused to that course being adopted.

4. For the reasons set out in a previous judgment I concluded that the Crown should be permitted to provide the chronology to the jury. [2] I concluded, amongst other things, that the various objections to the chronology taken by counsel for the accused were able to be addressed by the jury being given a clear and firm direction as to how the chronology was to be used. In particular, I concluded that the Crown's provision of the chronology to the jury would not result in any unfair prejudice to the accused. I specifically noted[3] that when the chronology was provided to the jury, the jury would be directed (as they were ultimately directed) in specific terms that the chronology was to be used as a guide to, that it did not constitute, and that it could not be used as a substitute for, the evidence. I also noted at that time that it was well-settled that criminal trials proceed on the fundamental understanding that juries act in accordance with directions given by the trial judge.

   2. R v WE (No 2) [2019] NSWSC 854.

   3. At [10].

5. A further objection has now been taken to a specific entry in the chronology which the Crown has since added. The entry is dated 18 September 2016 and is in the following terms:

“Video located on (HG's) phone of a person preaching in Bankstown. (WE) seen handing out pamphlets in the background.”

6. The footage the subject of this entry has been played to the Court on this application. The “person preaching” is HG.

7. There is no issue raised by counsel for the accused as to the first sentence in the entry. However objection has been taken to the second sentence. In taking that objection, and in response to a specific query from me, counsel for the accused made it clear that there was no issue that the accused is the person depicted in the background of the footage. There is, however, said to be an issue with the Crown’s allegation that the accused was handing out pamphlets to passers-by at the time.

8. Having viewed the footage there is, in my view, an available inference that this is precisely what the accused was doing. There may be a competing inference, although it should be noted that in the course of submissions no such competing inference was advanced by counsel for the accused to the Court.    

9. Quite apart from those considerations, the issue which has been raised by counsel for the accused canvasses what might be described as well-trodden ground. As I have said previously, the chronology is not evidence. It is not a substitute for the evidence. It is a guide to the evidence. The jury will be told of the use to which they can put the chronology in no uncertain terms when it is produced by the Crown, and will be left in no doubt as to the restrictions which are placed upon such use.

10. In those circumstances, there is no danger of unfair prejudice to the accused as a consequence of the inclusion of the second sentence in the entry to which objection has been taken. In particular, that sentence does not impinge, in any way, on counsel for the accused putting to the jury, if he wishes to do so, that there is a competing inference, other than that urged by the Crown, which can be drawn.

11. The evidence which is to be led in support of this entry is clearly admissible and, indeed, no objection was taken to it. In my view, given the caveats which will be placed on the use of the chronology, about which the jury will be reminded at the time of its production, as well as periodically during the trial and in the course of my summing-up, inclusion of the entry gives rise to no danger of unfair prejudice to the accused whatsoever.

12. In those circumstances, I propose to allow the Crown to include it.

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Endnotes

Decision last updated: 08 April 2020