Citation: R v HG; R v WE (No 10) [2018] NSWSC 1270
Court: Supreme Court of New South Wales
Date: 15 August 2018
Judge(s): Bellew J
Background
Two accused persons were on trial for allegedly engaging in acts in preparation for a terrorist act. As part of the Crown case, the prosecution relied on evidence that one accused (WE) had downloaded and accessed extremist material online, which was said to demonstrate his violent jihadist ideology at the relevant time.
Approximately one hour before the close of the Crown case, and for the first time, the Crown indicated it intended to tender two issues of a publication called "Dabiq," an Islamic State magazine. The Crown sought to rely on the fact that WE had accessed these issues, which contained references to geographic locations relevant to the trial.
Counsel for the accused objected to the tender, arguing that the late notice was procedurally unfair and that this unfairness created a danger of unfair prejudice outweighing the evidence's probative value.
Legal Issues
- Whether the two magazine issues were admissible under section 137 of the Evidence Act 1995 (NSW), which requires exclusion of prosecution evidence where the danger of unfair prejudice to the accused substantially outweighs its probative value
- Whether procedural unfairness arising from the late notice of the proposed tender was capable of constituting "unfair prejudice" within the meaning of section 137
Decision
Issue 1: Probative value
Bellew J accepted that the evidence carried some probative value, given its connection to the Crown's case on WE's ideology. However, the Court did not accept the Crown's characterisation of that probative value as high (at [10]).
Issue 2: Whether the danger of unfair prejudice outweighed probative value
The Court found the danger of unfair prejudice was established, and that it outweighed the evidence's probative value, on procedural grounds. The Crown had held the magazines for a considerable period and offered no satisfactory explanation for why notice of the proposed tender was given only at the eleventh hour. A previous ruling on admissibility of related interview evidence had been made more than two weeks earlier, and the Court observed that this provided ample time to reconsider the tender strategy (at [12]).
Bellew J confirmed that procedural unfairness is capable of constituting unfair prejudice for the purposes of section 137, citing the Court of Criminal Appeal's decision in Haoui v R and his own earlier decisions (at [13]). The Court was satisfied that had counsel been given proper notice, he could have reviewed the full volume of extremist material served by the Crown to identify anything capable of sustaining an inference other than the adverse one sought by the prosecution. That lost opportunity was sufficient to establish the danger of unfair prejudice (at [14]).
Orders Made
- The tender of the two issues of Dabiq magazine was rejected.
Key Takeaways
- Procedural unfairness caused by late notice of a proposed tender is capable of constituting "unfair prejudice" within the meaning of section 137 of the Evidence Act 1995 (NSW), as confirmed by the Court of Criminal Appeal in Haoui v R and applied here (at [13]).
- Where the Crown holds material for a significant period and offers no adequate explanation for a last-minute tender, a court may find the circumstances weigh in favour of exclusion (at [12]).
- The lost opportunity to review served material for exculpatory or countervailing inferences, directly caused by insufficient notice, was found to be more than sufficient to establish a danger of unfair prejudice (at [14]).
- Under section 137, the question is not whether prejudice is precisely articulated but whether, assessed in context, a real danger of unfair prejudice exists that substantially outweighs the evidence's probative value (at [10]-[14]).
- A Crown case may legitimately evolve during trial, but that evolution does not excuse a failure to give timely notice of material that has been in the prosecution's possession throughout (at [12]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- Haoui v R [2008] NSWCCA 209; 188 A Crim R 331
- R v HG; R v WE (No 6) [2018] NSWSC 128
- R v Rice (No 4) [2014] NSWSC 1525
- R v Rogerson; R v McNamara (No 41) [2016] NSWSC 364