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Supreme Court 2 April 2019

R v Khan (No 6)

[2019] NSWSC 349

Public order & justice offences
CRIMINAL LAW EVIDENCE ASSESSMENT OF PROBATIVE VALUE

Citation: R v Khan (No 6) [2019] NSWSC 349
Court: Supreme Court of New South Wales
Date: 2 April 2019
Judge(s): Bellew J

Background

The accused faced a charge of engaging in a terrorist act, arising from a knife attack on a pedestrian in the Sydney suburb of Minto on 10 September 2016. The accused had pleaded not guilty on the grounds of mental illness. There was no dispute that the physical elements of the offence were established beyond reasonable doubt; the sole issue was the accused's mental state at the time of the attack.

The Crown's case included diary entries in which the accused listed violent jihadist figures as personal role models, and a reference to the anniversary of the September 11 attacks as the timing for what he called "Sunday's operation." Also tendered was footage titled "Osama Bin Laden, Lion of Jihad," and records of the accused's internet browsing history showing he had accessed YouTube footage of the September 11 attacks the morning before the stabbing.

The Crown sought to tender the actual September 11 footage to the jury. The accused's legal representatives objected under s 137 of the Evidence Act 1995 (NSW), which requires exclusion of evidence where its probative value is outweighed by the danger of unfair prejudice to the defendant.

  • Whether the September 11 footage found in the accused's browser history had sufficient probative value to be admissible
  • Whether that probative value was outweighed by the danger of unfair prejudice under s 137 of the Evidence Act 1995 (NSW)
  • Whether a jury direction could adequately address any prejudicial effect arising from the emotive content of the footage

Decision

Bellew J admitted the footage. His Honour found the evidence had substantial probative value because it bore directly on the sole live issue: whether the accused was suffering from a psychotic episode at the time of the attack. The Crown's psychiatric witness was expected to testify that deliberately accessing such footage for what the accused himself described as "inspirational purposes" was inconsistent with the presence of schizophrenic or disordered thought.

His Honour distinguished between the mere fact that the accused accessed the footage (already established by his browser history and his own admissions to psychiatrists) and the actual content of the footage. The content, Bellew J reasoned, was significantly more probative than a bare description of the video's title, particularly given the accused's stated purpose in viewing it.

On the question of unfair prejudice, Bellew J accepted that the footage was prejudicial in the ordinary sense of potentially undermining the defence. However, he found that prejudice of that kind does not constitute "unfair" prejudice within the meaning of s 137. The purpose for which the Crown was tendering the evidence was clearly defined, and a firm jury direction would instruct the jury not to engage in any irrational, emotional or prejudicial response. His Honour proceeded on the established principle that juries are expected to comply with such directions.

Orders Made

• The evidence will be admitted.

Key Takeaways

  • Under s 137 of the Evidence Act 1995 (NSW), a court must exclude prosecution evidence only where its probative value is outweighed by the danger of unfair prejudice; prejudice that simply tends to defeat the defence case does not, without more, qualify as unfair prejudice.
  • The actual content of material accessed by an accused can carry substantially greater probative value than a mere record that the material was accessed, particularly where the accused's stated purpose in accessing it is relevant to a disputed mental state.
  • Where the sole issue at trial is mental state, evidence of the accused's deliberate and purposeful engagement with particular content in the hours before the alleged offence can be directly relevant to expert psychiatric assessments of that mental state.
  • A firm jury direction addressing the risk of an emotional or irrational response to distressing evidence is a recognised and legitimate mechanism for managing prejudicial effect, and courts proceed on the assumption that juries will comply with such directions (citing R v Glennon (1992) 173 CLR 592 and Gilbert v R (2000) 201 CLR 414).
  • In assessing probative value under s 137, the court proceeds on the basis that the evidence will be accepted by the jury, consistent with IMM v R (2016) 257 CLR 300.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 137

Cases
- Festa v R (2001) 208 CLR 593; [2001] HCA 72
- Gilbert v R (2000) 201 CLR 414; [2000] HCA 15
- IMM v R (2016) 257 CLR 300; [2016] HCA 14
- Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470
- Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37
- R v Glennon (1992) 173 CLR 592; [1992] HCA 16
- Standen v R [2015] NSWCCA 211; (2015) 253 A Crim R 301