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Supreme Court 31 July 2019

R v WE (No.7)

[2019] NSWSC 966

Public order & justice offences
CRIMINAL LAW EVIDENCE EXPERT EVIDENCE EVIDENCE EXCLUDED.

Citation: R v WE (No.7) [2019] NSWSC 966
Court: Supreme Court of New South Wales
Date: 31 July 2019
Judge: Bellew J

Background

The accused was standing trial for the third time on a charge of doing acts in preparation for, or planning, a terrorist act. The first jury failed to reach a unanimous verdict in August 2018, and the second jury was discharged partway through the retrial. The current trial commenced on 15 July 2019.

The Crown proposed to call Dr Rodger Shanahan, an expert in Islamic studies, and had served a series of his reports over the course of the proceedings. The fifth and most recent report, dated 2 July 2019, included opinions about the accused's online activity, specifically that searches, downloads, and viewed material reflected a focused interest in radical Salafist and Salafi-jihadist content.

The defence objected to the final two paragraphs of that fifth report, arguing that the Crown's late service of the report had left the accused unable to obtain his own expert to respond to it. The objection was brought under s 137 of the Evidence Act 1995 (NSW), which requires exclusion of prosecution evidence where its probative value is outweighed by the danger of unfair prejudice to the defendant.

  • Whether the probative value of paragraphs 5 and 6 of Dr Shanahan's fifth report was outweighed by the danger of unfair prejudice to the accused under s 137 of the Evidence Act 1995 (NSW).
  • Whether the Crown's late service of the report, combined with delays in Legal Aid funding approval, had deprived the accused of a meaningful opportunity to meet the expert evidence.
  • (Left undecided) Whether Dr Shanahan had the requisite expertise to express the opinions contained in those paragraphs.

Decision

Bellew J found that the fifth report was served at a very late stage, reaching the defence only on 4 July 2019, the Thursday before the retrial was scheduled to commence on Monday 8 July. No explanation was offered by the Crown for the delay. This was particularly significant given the proceedings had already been running for approximately 12 months across two earlier trials.

Upon receiving the report, defence counsel promptly concluded that the new opinions in paragraphs 5 and 6 went substantially beyond anything Dr Shanahan had said at the previous trial, and that an expert in reply was required. The instructing solicitor made an urgent application to Legal Aid NSW for funding on 5 July 2019 and followed it up twice weekly. Despite these efforts, approval was not granted until 26 July 2019, nearly three weeks later. His Honour described the delay in assessing and approving that application as "entirely unsatisfactory."

Preliminary inquiries with three potential experts were made while awaiting the funding decision, but none was available in time. One expert was overseas until August, another did not respond, and a third had not been confirmed. Bellew J accepted that the defence had made reasonable efforts but had been hamstrung primarily by the late service of the report and the delay in Legal Aid approval.

His Honour concluded that the accused's inability to meet the new expert evidence gave rise to a danger of unfair prejudice that outweighed the probative value of paragraphs 5 and 6 of the fifth report. Those two paragraphs were accordingly excluded under s 137. The separate challenge to Dr Shanahan's expertise to express those opinions was not determined, having been rendered unnecessary by the exclusion ruling.

Orders Made

  • Paragraphs 5 and 6 of Dr Rodger Shanahan's report dated 2 July 2019 were excluded from the Crown's evidence.

Key Takeaways

  • Under s 137 of the Evidence Act 1995 (NSW), probative value can be outweighed by procedural unfairness arising from late service of evidence, not only by the intrinsic character of the evidence itself.
  • Late service of a Crown expert report, for which no explanation is provided, can constitute the foundation for an unfair prejudice finding where the accused is denied a genuine opportunity to respond with expert evidence of their own.
  • A forensic decision by defence counsel not to retain a responding expert in relation to earlier reports does not disentitle the accused to object when a materially new and later report is served without adequate notice.
  • Delays in Legal Aid approval, where funding is genuinely required to engage a responding expert, are a relevant consideration in assessing whether procedural unfairness has arisen. Bellew J noted it was "entirely unsatisfactory" that the application was not resolved with greater speed in a life-imprisonment matter.
  • Where an exclusion ruling under s 137 resolves the objection, a court need not go on to separately determine challenges to the expert's qualifications.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 137

Cases
- Haoui v R (2008) 188 A Crim R 331; [2008] NSWCCA 209
- R v Rice & Ors (No 4) [2014] NSWSC 1525
- R v Rogerson; R v McNamara (No 41) [2016] NSWSC 364
- R v WE (No 3) [2019] NSWSC 881