Citation: R v HG; R v WE (No 7) [2018] NSWSC 1277
Court: Supreme Court of NSW
Date: 9 August 2018
Judge(s): Bellew J
Background
Two accused, HG and WE, faced a charge of doing acts in preparation for a terrorist act or acts. Both pleaded not guilty. This ruling concerned an evidentiary dispute arising in the trial of accused HG.
The Crown sought to tender handwritten notes found in HG's possession while he was in custody, approximately five weeks after his arrest on 12 October 2016. The notes were dated 18 November 2016 and, once translated, formed part of a witness statement filed in January 2017.
The collection of notes comprised eight items. The Crown confined its tender to three of them (items iii, v and vii), on the basis that those items expressed extremist views relevant to HG's alleged ideology.
Legal Issues
- Whether the three notes selected by the Crown were admissible, or whether their probative value was outweighed by the danger of unfair prejudice under s 137 of the Evidence Act 1995 (NSW).
- Whether the remaining five notes (items i, ii, iv, vi and viii) had sufficient relevance and probative value to be admitted.
Decision
Issue 1: Admissibility of notes (iii), (v) and (vii) under s 137
Senior counsel for HG accepted the notes were relevant but argued for exclusion under s 137. The submission was that the probative value was not high, that the documents post-dated the arrest, and that their content carried a danger of unfair prejudice. Bellew J rejected that argument (at [4]).
The court found that the three documents were clearly relevant and admissible. References within them to phrases such as "destruction of the worshippers of the cross and idols" and related expressions carried significant probative value on the question of HG's extremist ideology (at [4]). Nothing advanced on HG's behalf established that the probative value was outweighed by unfair prejudice, and there was no suggestion that a jury would engage in any impermissible reasoning process (at [4]).
Issue 2: The remaining five notes
The court turned separately to items (i), (ii), (iv), (vi) and (viii), which the Crown had not sought to tender. Bellew J found those documents had little probative value, as they expressed religious views in terms that were not extreme (at [5]).
Senior counsel for HG had foreshadowed that if items (iv), (v) and (vii) were admitted, the defence would seek to tender the balance. The court indicated those remaining items appeared to have little, if any, relevance to any issue at trial, and directed that any such application should first be pursued in discussions with the Crown (at [5]).
Orders Made
- Notes (iii), (v) and (vii) admitted into evidence in the Crown's case against HG.
- Notes (i), (ii), (iv), (vi) and (viii) found to have little probative value; any application to tender them was to be pursued first through discussions with the Crown.
Key Takeaways
- Under s 137 of the Evidence Act 1995 (NSW), evidence will not be excluded merely because it post-dates an accused's arrest; what matters is whether the probative value of the material is outweighed by the danger of unfair prejudice in the context of the Crown's stated purpose for tendering it (at [3]-[4]).
- Significant probative value was found in notes containing explicit references to destruction of religious out-groups, where the Crown's case involved proof of an extremist ideology supporting preparation for a terrorist act (at [4]).
- The absence of any identified risk that a jury would reason impermissibly was a relevant consideration in declining to exclude the evidence under s 137 (at [4]).
- Where a party seeks to tender documents not put forward by the opposing party, the court may still scrutinise their relevance and probative value independently, and may direct that any such tender first be negotiated between the parties (at [5]).
- The Crown's decision to limit its tender to a subset of available documents was taken into account by the court when assessing whether prejudice outweighed probative value (at [3]-[4]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- Not stated