R v WE (No.7) - [2019] NSWSC 966

Supreme Court

New South Wales

Medium Neutral Citation: R v WE (No.7) [2019] NSWSC 966
Hearing dates: 31 July 2019
Date of orders: 31 July 2019
Decision date: 31 July 2019
Jurisdiction: Common Law
Before: Bellew J
Decision:
See [24]

Catchwords: CRIMINAL LAW – Evidence – Expert evidence – Late service of expert report by the Crown – Inability of accused to engage expert to meet the contents of the report – Probative value of the evidence outweighed by procedural unfairness giving rise to a danger of unfair prejudice – Evidence excluded.
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: Haoui v R (2008) 188 A Crim R 331; [ 2008] NSWCCA 209
R v Rice & Ors (No 4) [2014] NSWSC 1525
R v Rogerson; R v McNamara (No 41) [2016] NSWSC 364
R v WE (No 3) [2019] NSWSC 881
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 this matter has pleaded not guilty to a charge of doing acts in preparation for, or planning, a terrorist act or acts.
The trial with the present jury commenced on 15 July 2019. The Crown case is expected to close within the next few days. This is the third occasion on which the accused has come to trial. The jury in his first trial could not reach a unanimous verdict in August 2018. The jury in the second trial were discharged. [1]
1. See R v WE (No.3) [2019] NSWSC 881.
The Crown proposes to call Dr Rodger Shanahan, an expert in Islamic studies, as a witness in its case. For the purposes of Dr Shanahan’s evidence, the Crown has served a number of reports, the most recent of which is dated 2 July 2019 (“the fifth report”).
Counsel for the accused has objected to the Crown leading the entirety of the contents of the fifth report although properly viewed, the objection is really an objection to the final two paragraphs. Counsel has relied on s 137 of the Evidence Act 1995 (NSW) (“the Act”) and has submitted that the probative value of those parts of the fifth report is outweighed by the danger of unfair prejudice to the accused. That unfair prejudice is said to manifest itself in what might be described as procedural unfairness, stemming from the date on which the fifth report was served by the Crown, and the consequent inability of those acting for the accused to qualify an expert to provide a report in reply.
Two affidavits have been read for the purposes of resolving this issue. The first is that of Louise Thompson, the Crown’s instructing solicitor, which does not bear a date but which I infer has been sworn recently. The second is an…

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.7)

Details

AGLC: R v WE (No.7) [2019] NSWSC 966
Case: [2019] NSWSC 966
Decision Date: 31 July 2019

CaseChat Overview and Summary

The matter of R v WE (No.7) involved a criminal prosecution where the defendant, WE, was accused of various criminal offences. The central issue before the court was the admissibility of expert evidence provided by the Crown, which was served late and to which the defendant was unable to respond adequately. The case was heard in the higher court, which had appellate jurisdiction over the lower court’s decision regarding the admissibility of the expert evidence.

The legal issues that the court had to decide centred around the timeliness of the service of expert evidence by the Crown and the fairness of the process when the defendant was unable to engage an expert to counter the evidence presented. The court was required to balance the probative value of the expert evidence against the procedural unfairness and potential for unfair prejudice caused by the late service and the defendant's inability to effectively respond. The court needed to determine whether the evidence should be excluded on the grounds of unfairness, despite its potential relevance and probative value.

In its decision, the court carefully considered the principles of fairness in the criminal justice process, noting that while the expert evidence had significant probative value, the procedural unfairness and the risk of unfair prejudice to the defendant outweighed this value. The court concluded that the late service of the expert report and the defendant's inability to effectively counter it constituted a substantial breach of procedural fairness, leading to the exclusion of the evidence. This decision was made to uphold the integrity of the judicial process and protect the rights of the defendant.

The court ordered that the expert evidence provided by the Crown be excluded from the trial. This ruling was based on the finding that the procedural unfairness and the risk of unfair prejudice to the defendant due to the late service of the expert report and the defendant's inability to counter it were too significant to allow the evidence to be admitted. The exclusion of the evidence was deemed necessary to ensure a fair trial and to maintain the principles of justice and procedural fairness in criminal proceedings.

Orders