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Supreme Court 13 March 2020

R v WE (No.13)

[2020] NSWSC 225

Public order & justice offences
CRIMINAL LAW EVIDENCE ASSESSMENT OF PROBATIVE VALUE EVIDENCE EXCLUDED

Citation: R v WE (No.13) [2020] NSWSC 225
Court: Supreme Court of New South Wales
Date: 13 March 2020
Judge(s): Bellew J

Background

The accused stood trial on a charge of doing acts in preparation for, or planning, a terrorist act, contrary to s 101.6(1) of the Criminal Code Act 1995 (Cth), carrying a maximum penalty of life imprisonment. The alleged offence occurred over a week in October 2016 in Sydney, jointly with another person. The trial had entered its fifth week when this evidentiary dispute arose.

Police seized several electronic devices from the accused at the time of his arrest. Those devices contained an extensive volume of material of varying kinds. The Crown relied on a portion of that material, including extremist imagery, ISIS propaganda, and footage of terrorist attacks, to establish that the accused held an extremist ideology and had the requisite intention to commit the offence.

The accused's senior counsel sought to tender a large volume of non-extremist material also found on the devices, including pornographic video footage, accessed through two phones. The Crown objected, not to evidence of the fact that such material existed, but to tendering the actual content of that material in its entirety.

  • Whether the voluminous non-extremist electronic material had sufficient probative value to warrant admission into evidence.
  • Whether the probative value of that material was substantially outweighed by the danger of undue waste of time under s 135(c) of the Evidence Act 1995 (NSW).
  • Whether a summary of the content of that material could be admitted as an alternative to the full tender.

Decision

Bellew J identified the purpose for which the accused sought to tender the non-extremist material: to counter the Crown's inference of extremist ideology by showing that the devices contained a wide variety of mundane and other material. His Honour accepted that evidence of the fact that the accused had accessed non-extremist material was relevant, and the Crown did not dispute that relevance.

However, the central question was whether the probative value of the actual content of the material justified its admission in full. His Honour found that the material added little, if anything, beyond what could be established by a concise summary. The content itself did not materially strengthen the inference the defence sought to draw, beyond what the bare fact of its existence already demonstrated.

A significant factor in the analysis was the state of the trial at the time of the application. Estimates of trial length had already proved grossly inaccurate. The accused's evidence-in-chief, originally said to take five hours, was in its fourth day with three to four more days likely remaining. The revised total trial estimate had grown to nine weeks, threatening to encroach on the Easter break and school holiday period, with a jury already experiencing attendance difficulties.

Balancing these considerations, Bellew J concluded that the probative value of the tendered material was substantially outweighed by the danger of undue waste of time under s 135(c). The full tender was rejected. His Honour indicated, however, that a summary of the content of the material on each device would, subject to any further argument from the parties, be admitted into evidence.

Orders Made

  • The proposed tender of the full content of the non-extremist electronic material was rejected under s 135(c) of the Evidence Act 1995 (NSW).
  • Subject to further argument from the parties, a summary of the content of the material on each device would be admitted into evidence.

Key Takeaways

  • Under s 135(c) of the Evidence Act 1995 (NSW), a court may exclude evidence where its probative value is substantially outweighed by the danger that it might cause or result in undue waste of time, even where the evidence has some relevance.
  • Where the same inference can be adequately drawn from a summary of evidence rather than its full volume, the probative value of tendering the entirety of that material may be modest and insufficient to justify the time cost of its admission.
  • The Supreme Court treated the advanced stage of the trial, the already-expanded length estimate, and the practical pressures on the jury as relevant contextual factors in the s 135(c) balancing exercise.
  • A party's own prior representations about the anticipated length of proceedings are not determinative, but significant and unexplained departures from those estimates may weigh against applications that would further extend trial time.
  • Exclusion of the full tender did not mean the underlying facts were entirely excluded: the court indicated a willingness to admit a summary of the material as a less time-consuming alternative.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 101.6(1)
- Evidence Act 1995 (NSW), s 135(c)

Cases
- Attorney-General v Hitchcock (1847) 11 Jur 478
- Australian Securities and Investments Commission v Rich & Ors (2005) 218 ALR 764; [2005] NSWCA 152
- Cadbury-Schweppes Pty Limited v Darrell Lea Chocolate Shops Pty Limited (2007) 159 FCR 397; [2007] FCAFC 70
- DF Lyons Pty Limited v Commonwealth Bank of Australia (1991) 28 FCR 597
- Koninklijke Phillips Electronics NV v Remington Products Australia Pty Limited (2000) 100 FCR 90; [2000] FCA 876
- R v Taylor [2003] NSWCCA 194
- Seven Network Limited v News Limited (No. 8) (2005) 224 ALR 317; [2005] FCA 1348
- Welsh v Carnival PLC Trading as Carnival Australia (No. 4) [2016] NSWSC 1296