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Supreme Court 24 July 2018

R v HG; R v WE (No 1)

[2019] NSWSC 573

Public order & justice offences
EVIDENCE NO PROPER AND SUFFICIENT REASON EVIDENCE EXCLUDED IN PART EVIDENCE WHETHER EVIDENCE RELEVANT EVIDENCE ADMITTED EVIDENCE EVIDENCE EXCLUDED EVIDENCE

Citation: R v HG; R v WE (No 1) [2019] NSWSC 573
Court: Supreme Court of New South Wales
Date: 24 July 2018
Judge(s): Bellew J

Background

Two young persons, referred to as HG and WE, each pleaded not guilty to doing acts in preparation for a terrorist act contrary to s 101.6(1) of the Criminal Code 1995 (Cth). The Crown alleged that on 12 October 2016 the pair jointly purchased two tactical hunting knives in Bankstown, then proceeded to a nearby prayer room (Musalla), where they were arrested. The Crown's case was that the accused intended to attack law enforcement officers or members of the public in furtherance of an extremist Islamist ideology aligned with Islamic State.

Both accused were aged 16 at the time of their arrest. Each filed notices of motion seeking to exclude various categories of evidence before trial. The resulting rulings addressed admissions made by HG to police, statements made by WE to Australian consular officers in Egypt, physical and digital evidence, and an application by WE for a separate trial.

Legal Issues

  • Whether statements made by HG in a laneway following his arrest, and later at the police station, should be excluded under s 13 of the Children (Criminal Proceedings) Act 1987 (NSW) (CCPA) for absence of an adult during questioning
  • Whether statements made by HG at the Musalla following a formal caution were admissible
  • Whether admissions made by WE to Australian consular officers at Cairo Airport should be excluded under s 84 of the Evidence Act 1995 (NSW) as having been influenced by oppressive conduct in Egyptian custody
  • Whether evidence of the accused's presence in a locked bathroom at the Musalla was relevant and admissible
  • Whether evidence of the disposal of personal items to conceal the knives was relevant
  • Whether a photograph of HG holding an extremist placard at a 2012 protest rally was relevant and admissible
  • Whether extremist electronic material found on devices connected to WE was relevant and admissible
  • Whether WE was entitled to a separate trial

Decision

Issue 1: HG's statements in the laneway (s 13 CCPA)

The court accepted that s 13(1)(a) of the CCPA, which requires the presence of a parent or other adult, had not been complied with. On the question of whether there was a proper and sufficient reason for the absence of an adult under s 13(1)(b)(i), the court was prepared to accept that the circumstances immediately following arrest provided such a reason (at [68]). However, under s 13(1)(b)(ii), the court found that the police had almost immediately begun questioning HG, and that those questions had the effect of encouraging the subsequent statements (at [69]). The court rejected the suggestion that the officers were merely "building rapport," finding that they were advancing the investigation while aware that s 13 had not been satisfied (at [70]). Significantly, the recording of those statements resulted from a deliberate direction by a detective who knew the CCPA requirements had not been met and that admissibility would be in issue (at [71]). Those statements were excluded.

Issue 2: HG's statements at the Musalla following the caution

Statements made by HG immediately after being cautioned by Detective Sutherland at the Musalla were treated differently. Those utterances were entirely spontaneous, made after a clear caution, without any police questioning or intervention (at [75]). The court was satisfied there was a proper and sufficient reason for the absence of a nominated adult at that point, and that the statements should be admitted (at [76]-[77]). By contrast, statements made later at the police station were excluded because by that time the police had ample opportunity to arrange for an adult to be present and had failed to do so (at [79]).

Issue 3: WE's statements to consular officers in Egypt (s 84 EA)

The court found that WE had been subjected to violent, oppressive, inhumane or degrading conduct by Egyptian authorities prior to meeting with Australian consular officers at Cairo Airport (at [116]). The test under s 84 of the Evidence Act does not require a high causal threshold; the word "influenced" does not demand that the conduct be the sole or dominant cause of the admissions, only that it have some operative effect on them (at [119]-[120]). The court considered it particularly significant that WE told the consular officers he did not feel safe discussing these matters in Egypt for fear of repercussions, leading to the inference that his prior mistreatment necessarily influenced what he was saying (at [121]). The Crown had not discharged its onus of establishing that the admissions were not so influenced. The evidence was excluded (at [122]).

Issue 4: Evidence of the locked bathroom, disposal of items, the rally photograph, and electronic material

The court admitted each of these categories of evidence. The presence of the two accused in a locked bathroom at the Musalla, viewed in the context of the earlier knife purchase, was held to be highly relevant circumstantial evidence of preparation for a terrorist act rather than an innocuous event to be assessed in isolation (at [90]-[93]). The disposal of personal items from WE's backpack to make room for the knives was similarly admitted as relevant to the question of whether acts were done in preparation for a terrorist act (at [97]-[99]). The photograph of HG holding an extremist placard at a 2012 rally was admitted as direct and relevant evidence of his long-standing extremist ideology (at [100]-[104]). Electronic material found on devices linked to WE was admitted as relevant to his state of mind and ideology; the court applied the principle from Elomar v R that it is not unreasonable to infer that a person found in possession of such material had viewed or intended to view it (at [129]-[130]).

Issue 5: Application for separate trial

WE applied for a separate trial on the basis that the evidence against HG was substantially stronger and more extreme, and that a jury could not compartmentalise it. The court refused the application. It noted that the bulk of HG's statements had already been excluded, that the remaining evidence admissible only against HG was confined and clearly identifiable, and that there was a substantial body of similar electronic evidence admissible against WE (at [142]-[148]). The court reaffirmed the general principle that jointly charged offences should ordinarily be tried jointly, and found no real risk of positive injustice to WE in a joint trial (at [147]-[149]).

Orders Made

  • Statements made by HG in the laneway while awaiting transport: excluded (at [69]-[71])
  • Statements made by HG at the Musalla following a caution: admitted (at [77])
  • Statements made by HG at the police station (to Constable El-Mir): excluded (at [79])
  • Evidence of the accused's presence in the locked bathroom at the Musalla: admitted (at [93])
  • Evidence of disposal of personal items near the knives: admitted (at [99])
  • Photograph of HG at the 2012 rally: admitted (at [104])
  • Statements made by WE to consular officers in Egypt: excluded (at [122])
  • Electronic material on devices connected to WE: admitted (at [130])
  • Application for separate trial by WE: refused (at [149])

Key Takeaways

  • Under s 13 of the Children (Criminal Proceedings) Act 1987 (NSW), even where a proper and sufficient reason exists for the initial absence of an adult, evidence of statements made by a young person may still be excluded under s 13(1)(b)(ii) where police questioning actively encouraged those statements and officers were aware the statutory requirements had not been met (at [69]-[71]).

  • Section 84 of the Evidence Act 1995 (NSW) sets a low causal threshold: an admission is influenced by prior violent, oppressive or inhumane conduct if that conduct has any operative effect on the making of the admission. The Crown bears the onus of satisfying the court that the admission was not so influenced (at [119]-[120]).

  • Circumstantial evidence in terrorism preparation cases must be assessed as a whole rather than in isolation. Evidence that may appear unremarkable when considered alone, such as two persons in a locked room or items discarded from a bag, can be highly relevant when viewed against the totality of events on the day in question (at [90]-[91]).

  • Electronic material found on a device connected to an accused is admissible as evidence of state of mind and ideology even without direct proof that the accused viewed it. It is not unreasonable to infer that a person in possession of such material had viewed or intended to view it (at [129]).

  • A separate trial will not ordinarily be ordered simply because some evidence is admissible against one co-accused but not the other, provided that evidence is capable of clear definition and a jury can be appropriately directed to confine its use (at [147]-[149]).

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes Act 1914 (Cth)
- Criminal Code 1995 (Cth)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)

Cases
- Habib v Nationawide News Pty Limited (2010) 77 Higgins v R [2007] NSWCCA 56
- Nye v New South Wales [2002] NSWSC 1270
- Privett [2001] NSWCCA 518
- R v Hillier (2007) 228 CLR 618; [2007] HCA 13
- NSWLR 299; [2010] NSWCA 34
- R v JF [2009] ACTSC 104
- R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965
- R v Zhang [2000] NSWSC 1099
- Zaknic Pty Limited v Svelte Corporation Pty Limited (1995) 140 ALR 701
- Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206