Citation: R v HG; R v WE (No 3) [2018] NSWSC 1210
Court: Supreme Court of New South Wales
Date: 3 August 2018
Judge(s): Bellew J
Background
Two accused faced charges of committing acts in preparation for a terrorist act or acts. The Crown sought to lead evidence that both accused refused to stand for the National Anthem at a school assembly in June 2014. The Crown also sought to adduce evidence that one of the accused, WE, was subsequently absent from school on numerous occasions, many of which coincided with days on which the National Anthem was played.
Counsel for the accused WE objected to the evidence of the absences. The Crown's position was that both the refusal and the absences were relevant to establishing the accused's intention and ideology, forming part of a broader circumstantial case.
The matter came before Bellew J on a voir dire (a preliminary hearing to determine admissibility, without the jury present).
Legal Issues
- Whether the evidence of school absences was relevant within the meaning of s 55 of the Evidence Act 1995 (NSW)
- If relevant, whether the evidence should be excluded under s 137 of the Evidence Act on the ground that its probative value was outweighed by the danger of unfair prejudice to the accused
Decision
Issue 1: Relevance under s 55
Bellew J held that the test of relevance under s 55 is one of logical connection, interpreted broadly. The word "could" in s 55 means only that it is "possible" that the evidence may affect the probability of a fact in issue, and that effect may be direct or indirect (at [7]).
The absence evidence formed part of a circumstantial case going to the accused's intention and ideology. Applying the principle from R v Hillier, a circumstantial case must be assessed as a whole rather than piecemeal. Viewed alongside other evidence, including extremist material found on devices connected to the accused, the absence evidence was clearly relevant and its probative value was significant (at [8]-[9]).
Issue 2: Exclusion under s 137
Bellew J was not satisfied that the probative value of the evidence was outweighed by the danger of unfair prejudice. Section 137 targets the risk that a jury might misuse the evidence in some particular way. His Honour found no such danger of misuse arising from the school absence evidence (at [10]).
Orders Made
- The evidence of school absences will be admitted.
Key Takeaways
- Relevance under s 55 of the Evidence Act 1995 (NSW) is a wide test of logical connection; it is satisfied where it is merely possible that the evidence could affect the probability of a fact in issue, whether directly or indirectly (at [7]).
- A circumstantial case going to intention or ideology must be assessed as a whole. Evidence that might appear to have low probative value in isolation can be significant when considered alongside the broader body of evidence relied upon by the Crown (at [8]-[9]).
- Section 137 of the Evidence Act is directed specifically to the danger of a jury misusing evidence. The mere fact that evidence could suggest a disposition to disobey authority does not, without more, establish that kind of unfair prejudice (at [10]).
- The Supreme Court confirmed that evidence of a pattern of school absences, coinciding with occasions on which conduct contrary to the accused's alleged ideology would have been required, was capable of going to intention in a terrorism preparation trial (at [9]).
- Probative value in a circumstantial case is not assessed by reference to each piece of evidence in isolation; the cumulative weight of the circumstantial evidence as a whole informs the analysis (at [8]-[9]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- Nye v State of NSW [2002] NSWSC 1270
- R v Hillier (2007) 228 CLR 618; [2007] HCA 13
- R v Privett [2001] NSWCCA 518
- Zaknic Pty Ltd v Svelte Corporation Pty Ltd [1995] FCA 1739; (1995) 140 ALR 701