Citation: R v HG; R v WE (No 5) [2018] NSWSC 1212
Court: Supreme Court of New South Wales
Date: 3 August 2018
Judge(s): Bellew J
Background
Two accused, HG and WE, each faced a charge of doing acts in preparation for a terrorist act or acts. Both pleaded not guilty. The Crown sought to lead evidence of material found on electronic devices connected with each accused.
Counsel for WE objected to specific material: two issues of the Islamic State publication "Dabiq" (issues 1 and 12, each containing confronting imagery) and two short footage excerpts depicting beheaded bodies and a corpse displayed on a crucifix. The remaining material in dispute had been deferred or resolved by agreement.
The objection raised two questions: whether the material was relevant given the absence of any evidence that the accused had actually read or viewed it, and whether it should be excluded under s 137 of the Evidence Act 1995 (NSW) because its prejudicial effect outweighed its probative value.
Legal Issues
- Whether the magazines and footage were relevant to the accused's intention and ideology in the absence of evidence that the accused had read or viewed them
- Whether the evidence should be excluded under s 137 of the Evidence Act 1995 (NSW) on the basis that its probative value was outweighed by the danger of unfair prejudice to the accused
Decision
Issue 1: Relevance of material not shown to have been viewed
Counsel for WE argued the Dabiq magazines were not relevant because no evidence established that the accused had read or viewed them. No relevance objection was raised in relation to the footage excerpts. Bellew J applied the reasoning of the Court of Criminal Appeal in Elomar & Ors v R [2014] NSWCCA 303, where the court held that when large quantities of material of this nature are found in a person's possession, it is not unreasonable to assume they have viewed at least some of it, or intend to do so (at [5]). Possession of such material in quantity is itself indicative of an interest in it, regardless of whether it has been viewed, and it may also reflect an intention to pass it on to others (at [5]).
Bellew J found that those principles applied equally to the present case. Even absent direct proof that WE had viewed or read the material, the evidence was clearly relevant to his intention and ideology (at [6]).
Issue 2: Exclusion under s 137 of the Evidence Act
The court considered whether the risk of an emotional jury response created a "danger of unfair prejudice" within the meaning of s 137. Again drawing on Elomar, Bellew J noted that evidence triggering emotional responses does not automatically satisfy that test. For unfair prejudice to arise, there must be a real risk that the evidence will be misused in some way (at [7]).
Bellew J concluded that the probative value of the evidence in the present case was clearly high, and that there was no danger of misuse in the relevant sense (at [8]). He indicated that when the material was tendered, the jury would be warned of its nature and directed to view it objectively and dispassionately, with that direction to be repeated in the summing-up (at [8]).
Orders Made
- The objected-to evidence (two issues of Dabiq and the footage excerpts) is admitted.
Key Takeaways
- Possession of extremist material in quantity can establish relevance to a terrorism accused's state of mind and ideology even where there is no direct evidence the material was read or viewed, because such possession is itself indicative of interest in or purpose for the material (at [5]-[6]).
- Under s 137 of the Evidence Act 1995 (NSW), evidence is not rendered inadmissible merely because it may provoke an emotional response in jurors. A danger of unfair prejudice requires a real risk of misuse, not just an uncomfortable reaction (at [7]).
- The Court of Criminal Appeal's reasoning in Elomar & Ors v R [2014] NSWCCA 303, developed in the context of conspiracy to commit acts in preparation for a terrorist act, was held to apply equally to proceedings for the substantive offence of doing acts in preparation for a terrorist act (at [6]).
- Where highly prejudicial material is admitted, a jury warning directing objective and dispassionate assessment of the evidence is an appropriate accompanying measure, to be reinforced in the summing-up (at [8]).
- High probative value going to intention and ideology in a terrorism prosecution can outweigh the risk of unfair prejudice, particularly where no misuse of the evidence in the relevant sense is identified (at [8]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- Elomar & Ors v R [2014] NSWCCA 303; (2014) 316 ALR 206
- Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37