Citation: R v Khan (No 8) [2019] NSWSC 351
Court: Supreme Court of New South Wales
Date: 2 April 2019
Judge(s): Bellew J
Background
The accused faced trial on a charge of committing a terrorist act. The sole issue before the jury concerned the accused's mental state at the time of the alleged offending.
During the course of the trial, the Crown sought to tender a BuzzFeed News article found on the accused's computer. The article, published in May 2015, reported on sentencing proceedings in the United States against Dzhokhar Tsarnaev, one of the individuals convicted over the 2013 Boston Marathon bombing.
The accused's counsel objected to the article's admission on the grounds that it would be misleading and confusing, and that it posed a danger of unfair prejudice to the accused.
Legal Issues
- Whether the article's probative value was substantially outweighed by the danger that it would be misleading or confusing, under s 135(b) of the Evidence Act 1995 (NSW)
- Whether the article's probative value was outweighed by the danger of unfair prejudice to the accused, under s 137 of the Evidence Act 1995 (NSW)
Decision
The Crown argued that the article having been "bookmarked" on the accused's computer indicated an idolisation of extremists and was consistent with a planned, methodical approach to the alleged offending. The Crown submitted this was significant given the mental state issue, and that neither confusion nor unfair prejudice would result.
Bellew J rejected the Crown's tender. His Honour found the article's capacity to affect the jury's assessment of the one fact in issue was low. The article contained extensive references to foreign criminal proceedings entirely irrelevant to the Australian proceeding and of little assistance to the jury's task.
Beyond the risk of the article being misleading or confusing, his Honour identified a clear danger of unfair prejudice arising from multiple factors. These included repeated references to prosecution submissions seeking the imposition of the death penalty, a sentencing procedure having no place in the Australian criminal justice system, as well as extraneous comments from members of the public posted via social media, which carried no probative value whatsoever.
Orders Made
• The Crown's tender of the article is rejected.
Key Takeaways
- The Supreme Court excluded a news article found on an accused's computer where its probative value on the sole issue at trial (mental state) was assessed as low, while the dangers of confusion and unfair prejudice were substantial.
- Under s 137 of the Evidence Act 1995 (NSW), evidence must be excluded where its probative value is outweighed by the danger of unfair prejudice to the accused, and the court applied that test strictly to material referencing foreign sentencing procedures.
- Embedded social media commentary and irrelevant public posts within an online article contributed to the finding of unfair prejudice, as such material carried no probative weight but risked influencing the jury improperly.
- References within tendered material to the death penalty, a concept foreign to Australian criminal procedure, were treated as a significant source of unfair prejudice.
- The fact that an article is "bookmarked" on an accused's computer does not, of itself, ensure its admissibility; the court looks beyond the manner of possession to the content of the material and its actual probative value in context.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 135(b) (exclusion where probative value substantially outweighed by danger of misleading or confusing the tribunal)
- Evidence Act 1995 (NSW), s 137 (exclusion in criminal proceedings where probative value outweighed by danger of unfair prejudice to the defendant)
Cases cited: No cases were cited in the judgment.