Citation: R v HG; R v WE (No 9) [2018] NSWSC 1262
Court: Supreme Court of New South Wales
Date: 9 August 2018
Judge: Bellew J
Background
Two accused, HG and WE, faced trial on charges of doing acts in preparation for a terrorist act. The alleged offence occurred on 12 October 2016, when both men left HG's premises and travelled to Bankstown. The Crown's case included evidence that both accused had taken steps to avoid electronic surveillance before and during the alleged offence.
The evidentiary dispute arose from several items: WE's mobile phone, which was found dismantled (battery removed, outer casing removed) at the place of his arrest; video footage found on HG's phone depicting someone dismantling a phone of the same brand and model as WE's; and the fact that HG had left his own phone behind at home when the two men departed on the morning of the alleged offence. The Crown characterised all of these as "anti-surveillance" conduct.
Each accused objected to certain pieces of this evidence being tendered against them in circumstances where the evidence was primarily connected to the other accused. The court was asked to rule on admissibility before the evidence was presented to the jury.
Legal Issues
- Whether the evidence of WE's dismantled phone was admissible in the Crown case against co-accused HG, on the basis that HG may have jointly participated in dismantling it.
- Whether evidence that HG deliberately left his phone at home before the alleged offence was admissible against co-accused WE, on the basis that WE may have been party to that decision.
- Whether the video footage found on HG's phone, depicting phone-dismantling techniques, was admissible against WE, and if so whether its probative value was outweighed by unfair prejudice.
Decision
Issue 1: WE's dismantled phone as evidence against HG
Bellew J rejected the Crown's submission that the finding of WE's phone in a dismantled state was admissible against HG. While other evidence, including the video footage, searches, and a screenshot, was capable of supporting an inference that HG had an interest in counter-surveillance techniques, that interest did not sustain any inference that HG played a part in actually dismantling WE's phone (at [7]). The dismantled phone evidence was therefore excluded from the Crown case against HG (at [8]).
Issue 2: HG leaving his phone at home as evidence against WE
The court rejected the Crown's attempt to use HG's deliberate act of leaving his phone behind as evidence against WE. The available evidence did not support an inference that WE was a party to any decision HG made about his own phone (at [14]). Searches conducted on WE's device were properly admissible against WE, but were insufficient to establish WE's involvement in HG's separate conduct (at [14]).
Issue 3: Video footage from HG's phone as evidence against WE
Bellew J held the footage found on HG's phone to be irrelevant to the Crown case against WE, given there was no suggestion the material was ever in WE's possession (at [15]). Even if the footage could be considered admissible, its probative value against WE was slight while its prejudicial effect was substantial. In particular, although WE's phone was found dismantled, there was no evidence WE had dismantled the battery in the specific manner shown on the footage, and the danger of unfair prejudice outweighed any limited probative value (at [15]).
Orders Made
- Evidence of the finding of WE's phone in a dismantled state excluded from the Crown case against HG (at [8]).
- The Crown not permitted to rely on HG leaving his phone at home in its case against WE (at [16]).
- The video footage and accompanying translation found on HG's phone not admissible in the Crown case against WE (at [16]).
Key Takeaways
- Evidence that one co-accused engaged in anti-surveillance conduct is not automatically admissible against the other co-accused; the Crown must establish a proper evidentiary basis for inferring joint participation or a shared decision before such cross-use is permitted (at [7]-[8], [14]).
- A general inference that an accused had "an interest in counter-surveillance" does not, without more, sustain a further inference that the accused participated in a specific act of counter-surveillance carried out by a co-accused (at [7]).
- Where evidence is found solely on one accused's device and there is no suggestion it was ever in the co-accused's possession, the evidence will ordinarily be irrelevant to the case against that co-accused (at [15]).
- Under the Evidence Act 1995 (NSW), even where evidence against a co-accused might clear the admissibility threshold, it may still be excluded where its probative value is outweighed by the danger of unfair prejudice, particularly in joint trials where the jury may improperly reason from one accused's conduct to the other's (at [15]).
- The court's rulings in this decision turned on the particular facts and the specific inferences available on the evidence; Bellew J noted there was no point of principle engaged.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- Not stated