Citation: R v WE (No.2) [2019] NSWSC 854
Court: Supreme Court of New South Wales
Date: 8 July 2019
Judge: Bellew J
Background
The accused stood trial on a charge of doing acts in preparation for, or planning, a terrorist act or acts. The trial commenced before Bellew J with a four-week estimate. At the outset, a procedural dispute arose before any evidence was called.
The Crown sought to provide the jury with a document headed "Chronology," setting out in chronological order a series of undisputed facts upon which the Crown intended to rely. These included occasions on which the accused had accessed so-called "extremist" footage on his computer. The factual accuracy of every entry in the Chronology was not in dispute.
Counsel for the accused objected both to the Chronology being provided to the jury at all, and to two specific entries within it. Two of the specific objections were resolved between the parties before the ruling; the third required separate consideration by Bellew J.
Legal Issues
- Whether the Crown should be permitted to provide the jury with a factual chronology described as a "road map" of undisputed evidence, where the accused contended this would be prejudicial
- Whether appropriate jury directions could adequately address any risk that jurors would treat the Chronology as evidence rather than as a guide
- Whether two specific passages within the Chronology should be excluded as going beyond what was necessary
Decision
Bellew J permitted the Crown to provide the Chronology to the jury. His Honour reasoned that in any criminal trial, jurors should be given all available assistance that does not put the accused's right to a fair trial at risk. Although the present trial was substantially shorter and less factually complex than the lengthy terrorism proceeding in R v Elomar & Ors (No. 1), that difference did not mean the Chronology would fail to assist the jury or that it should be withheld.
The court rejected the submission that jurors would treat the Chronology as evidence. Bellew J noted that, if provided, the jury would be directed in specific terms that the document was a guide only, did not constitute evidence, and could not substitute for the evidence. Criminal trials proceed on the accepted basis that juries follow judicial directions, and that principle answered the concern.
The related objections, namely that the titles of footage accessed by the accused were not reliable indicators of its content, and that matters could not be properly contextualised until cross-examination, were also answered by the proposed direction. No unfair prejudice to the accused would result from providing the Chronology in those circumstances.
On the two specific passages still in dispute, Bellew J ruled that a detailed precis of what was said at the Bankstown Gun Shop went beyond what the document required and should be removed. A further reference to the physical description of the co-accused paying for items was similarly excluded as unnecessary. The balance of that entry, including the fact of the purchase itself, was permitted to remain.
Orders Made
• The Chronology is to be provided to the jury with a specific direction that it is to be used as a guide only, does not constitute evidence, and cannot be used as a substitute for the evidence
• The passage in the Chronology entry for 6 October 2016 at 5.38pm referring to "Going pig hunting - looking to buy pig hunting knives" and the dialogue at the Bankstown Gun Shop is to be excluded
• The sentence in the following entry referring to a "male with beard" paying and doing the talking is to be excluded
• The entry regarding the purchase of two M Tech hunting knives for $40 each is to remain
Key Takeaways
- Bellew J confirmed that the desirability of assisting the jury applies in any criminal trial, not only in proceedings of exceptional length or complexity, provided that assistance does not compromise the accused's right to a fair trial.
- A factual chronology of undisputed matters, framed as a "road map" rather than as evidence, is an appropriate aid in terrorism proceedings where the jury must follow a sequence of factual allegations as evidence unfolds.
- The risk that jurors will treat a chronology as evidence can be adequately addressed through a specific judicial direction, given the established principle that juries are presumed to act in accordance with a trial judge's directions.
- Where entries in a chronology extend beyond what is necessary for their purpose as a guide, those passages are liable to be excluded, even if the underlying facts are not in dispute.
- The Supreme Court drew on Whealy J's reasoning in R v Elomar & Ors (No. 1) [2008] NSWSC 1442, treating that decision as applicable beyond large-scale, long-running terrorism trials.
Legislation and Cases Referenced
Cases:
- R v Elomar & Ors (No. 1) [2008] NSWSC 1442 (Whealy J)
Legislation:
No specific legislation was cited in the provided text.