Citation: R v WE (No.5) [2019] NSWSC 912
Court: Supreme Court of New South Wales
Date: 16 July 2019
Judge(s): Bellew J
Background
The accused stood charged with doing acts in preparation for, or planning, a terrorist act or acts. The Crown alleged the offence was committed jointly with a co-accused referred to in the judgment as "HG". The accused's trial had commenced on 8 July 2019 but the jury was discharged on 11 July 2019, with a retrial subsequently getting underway.
At the outset of the original trial, the Crown sought to provide the jury with a chronology described as a "road map" of the evidence it intended to call. Defence counsel objected to that course. Bellew J had previously ruled in the Crown's favour on that question, permitting the chronology to be used subject to appropriate directions to the jury.
In the retrial, a specific new entry was added to the chronology. That entry related to video footage dated 18 September 2016, which depicted HG preaching in Bankstown, with the accused visible in the background. The second sentence of the entry described the accused as "handing out pamphlets in the background." Defence counsel objected to that second sentence, giving rise to the present ruling.
Legal Issues
- Whether the inclusion of the disputed second sentence in the chronology entry would cause unfair prejudice to the accused.
- Whether an available inference from the footage supported the Crown's characterisation of the accused's conduct in the entry.
- Whether appropriate jury directions would adequately address any residual risk of prejudice arising from the entry.
Decision
Bellew J viewed the footage during the application. His Honour found there was an available inference that the accused was indeed handing out pamphlets to passers-by, consistent with the Crown's characterisation. Notably, defence counsel did not advance any competing inference during submissions, though his Honour acknowledged one might exist.
The Court reiterated the framework established in the earlier ruling on the chronology: the document is not evidence, is not a substitute for evidence, and is to be used only as a guide to the evidence. The jury would be directed in clear terms about these limitations when the chronology was produced, periodically during the trial, and again during the summing-up.
Given those caveats, Bellew J concluded that including the second sentence in the entry created no danger of unfair prejudice to the accused. The inclusion did not prevent defence counsel from advancing a competing inference to the jury if they chose to do so. The underlying evidence was admissible and had not been objected to.
The objection was dismissed and the Crown was permitted to include the entry in full.
Orders Made
• The Crown is allowed to include the entry dated 18 September 2016 in the chronology
Key Takeaways
- A jury chronology functioning as a "road map" of Crown evidence does not become impermissibly prejudicial simply because a specific entry characterises conduct that remains open to competing inferences at trial.
- Appropriate and repeated jury directions limiting a chronology to its role as a guide to the evidence, rather than as evidence itself, are central to the framework that permits such documents to be used.
- Where the underlying evidence supporting a chronology entry is admissible and unobjected to, the characterisation of that evidence in the chronology does not automatically give rise to unfair prejudice.
- The Supreme Court confirmed that the inclusion of a contested entry does not foreclose defence counsel from advancing competing inferences before the jury in the course of the trial.
- Criminal trials proceed on the fundamental principle that juries follow directions given by the trial judge, a principle Bellew J expressly relied upon in permitting the chronology from the outset.
Legislation and Cases Referenced
Cases:
- R v WE (No 2) [2019] NSWSC 854 (earlier ruling permitting the chronology)
- R v WE (No 3) [2019] NSWSC 981 (circumstances leading to the discharge of the first jury)
Legislation:
No specific legislation was cited in the text of this judgment.