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Supreme Court 2 April 2019

R v Khan (No 7)

[2019] NSWSC 350

Public order & justice offences
CRIMINAL LAW EVIDENCE EVIDENCE ADMITTED

Citation: R v Khan (No 7) [2019] NSWSC 350
Court: Supreme Court of New South Wales
Date: 2 April 2019
Judge(s): Bellew J

Background

The accused stood charged with committing a terrorist act arising from a physical attack on a person referred to as Mr Greenhalgh. The central issue at trial was the accused's state of mind at the time of the attack, with competing expert psychiatric evidence expected from both sides.

In the course of the trial, the Crown sought to tender three publications recovered from the accused's devices: "Book of a Mujahiddeen" and "The Book of Jihad", both found on a laptop, and "The Story of an American Jihaadi Part 1", found on a mobile phone. The publications contained material relating to the religious and ideological justifications for violent jihad, martyrdom, and fighting.

Counsel for the accused objected to the tender of these publications, arguing their admission would be more prejudicial than probative in the circumstances proposed by the Crown.

  • Whether the probative value of the three publications was substantially outweighed by the danger that the evidence might be misleading or confusing to the jury, within the meaning of s 135(b) of the Evidence Act 1995 (NSW)
  • Whether the probative value of the publications was substantially outweighed by the danger of an undue waste of time, within the meaning of s 135(c) of the Evidence Act 1995 (NSW)
  • Whether tendering only the title pages of each publication, rather than the full texts, would have been a sufficient and less problematic alternative

Decision

Bellew J admitted all three publications into evidence. His Honour found their probative value to be high, primarily because the accused, when interviewed by police immediately after the attack, stated that his purpose was "to kill and be killed." That statement aligned closely with the themes running through each of the publications.

The court also noted that the publications were directly relevant to the central contest at trial: the accused's state of mind. The Crown's expert, Professor Greenberg, was expected to give evidence that material of this nature was inconsistent with disordered thinking. Defence experts were expected to take a contrary position. The publications therefore formed part of the evidentiary foundation for that dispute.

Bellew J rejected the argument that the evidence would be misleading or confusing. The philosophies expressed in the publications were, in his Honour's view, clear and unequivocal, and consistent with what the accused himself had said to police. The fact that the Crown would not take the jury through every line of each publication did not create any danger of misleading the jury.

The argument about undue waste of time was also rejected. Nothing required the entirety of the material to be read aloud to the jury line by line. Equally, the Crown's submission was accepted that limiting the tender to title pages alone would itself have been misleading, depriving the jury of context about the extremist nature of the content.

Orders Made

• The evidence (publications) will be admitted.

Key Takeaways

  • Under s 135(b) and (c) of the Evidence Act 1995 (NSW), a court may exclude evidence only where its probative value is substantially outweighed by the relevant danger; a high degree of probative value will be difficult to displace.
  • Where an accused's own post-offence statements closely mirror the themes in documentary material found on their devices, that alignment can significantly elevate the probative value of the documents.
  • The Supreme Court held that the Crown's partial use of tendered publications at trial does not, of itself, create a danger of misleading or confusing the jury, provided the content of those publications is clear and consistent.
  • Limiting a tender to title pages, rather than full texts, was not treated as a safe default. The court accepted that such an approach could itself be misleading where it stripped the jury of important context.
  • The central role of competing psychiatric evidence about an accused's state of mind at the time of an offence can strengthen the case for admitting documentary evidence that bears on that mental state question.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 135(b) and (c)

Cases:
No cases were cited in the judgment.