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Supreme Court 15 July 2019

R v WE (No.4)

[2019] NSWSC 893

Public order & justice offences
CRIMINAL LAW EVIDENCE WHETHER EVIDENCE RELEVANT NO POINT OF PRINCIPLE

Citation: R v WE (No.4) [2019] NSWSC 893
Court: Supreme Court of New South Wales
Date: 15 July 2019
Judge(s): Bellew J

Background

The accused was charged with jointly committing acts in preparation for, or planning, a terrorist act with a co-accused, referred to as HG, between 6 and 12 October 2016 in Sydney. The Crown's case required it to establish that the two accused had agreed to commit the offence and had acted in furtherance of that agreement with the requisite intention.

During the trial, counsel for the accused raised objections to three discrete pieces of evidence the Crown sought to tender. Each item involved conduct or statements by HG, or conduct by the accused himself, said to be relevant to ideology, state of mind, and the existence of the alleged agreement.

The evidentiary rulings in this judgment followed an earlier decision, R v WE and HG (No 1) [2019] NSWSC 573, in which several of HG's statements made at the time of arrest had been excluded.

  • Whether a photograph found on HG's phone, depicting a pig looking into a police vehicle, was relevant to the accused's state of mind and the alleged agreement with HG.
  • Whether a statement made by HG at the time of his arrest, expressing hostility toward police, was relevant given it was made after both accused had been arrested.
  • Whether evidence of the accused's refusal to stand for the national anthem at school, and his stated reasons for that refusal, was relevant and, if so, whether it should nonetheless be excluded under section 137 of the Evidence Act 1995 (NSW) as unfairly prejudicial.

Decision

The photograph on HG's phone: Bellew J held that the photograph was clearly relevant. Drawing on the Court of Criminal Appeal's reasoning in Elomar & Ors v R, his Honour noted that material found on a co-accused's device can be indicative of a common interest and relevant to the existence and scope of a joint enterprise. Although the accused was not charged with conspiracy, the Crown still needed to prove that he and HG agreed to commit the offence. The absence of any section 137 objection meant no unfair prejudice argument was in play, and the evidence was admitted.

HG's statement at the time of arrest: His Honour rejected the submission that a statement made post-arrest is automatically irrelevant to the accused's state of mind or the alleged agreement. Bellew J observed that accepting such a proposition would, by the same logic, render post-arrest admissions in records of interview inadmissible. The statement was particularly significant because it was made on the day two knives were purchased, a fact central to the Crown case. The evidence was admitted as relevant to HG's ideology, state of mind, and the alleged agreement.

The national anthem conduct: Bellew J found that the accused's refusal to stand for the national anthem, and his explanation that he stood only for Allah and that HG also did not stand, was clearly relevant to the ideology of both the accused and HG. While no express explanation from HG for his own conduct was in evidence, the judge found a clear and unequivocal inference arose from the whole of the evidence as to HG's reasons. The section 137 challenge failed because there was nothing to suggest the jury would misuse the evidence. The evidence was admitted.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Material found on a co-accused's device can be relevant to the state of mind and shared intention of another accused in a joint terrorism preparation charge, following the approach confirmed by the Court of Criminal Appeal in Elomar & Ors v R.
  • The timing of a statement does not, of itself, determine its relevance: statements made post-arrest can remain relevant to a co-accused's ideology and the existence of an alleged prior agreement.
  • Where a joint offence is alleged, evidence of a co-accused's conduct and ideology is capable of being relevant to proof of the requisite agreement and intention, even in the absence of a conspiracy charge.
  • A section 137 objection to exclude evidence as unfairly prejudicial requires something more than the evidence being damaging; there must be a real risk the jury will misuse it.
  • Inferences about a co-accused's reasons for conduct need not rest on express statements from that person: a clear and unequivocal inference drawn from the whole of the evidence can suffice.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 137

Cases:
- Elomar & Ors v R [2014] NSWCCA 303; (2014) 316 ALR 206
- R v WE and HG (No 1) [2019] NSWSC 573