Citation: R v WE (No.14) [2020] NSWSC 315
Court: Supreme Court of New South Wales
Date: 20 March 2020
Judge(s): Bellew J
Background
The accused, charged with doing acts in preparation for a terrorist act, was at the time of this ruling self-represented, having recently withdrawn instructions from his legal representatives. The trial was before a jury in the Supreme Court of New South Wales.
During his evidence-in-chief on 19 March 2020, the accused sought to tender 13 excerpts of video footage recovered from electronic devices seized by police at the time of his arrest. The excerpts included a 53-chapter lecture series entitled "The Life of Muhammad" as well as other footage. The Crown had no objection to most of the other excerpts and offered to concede to the jury that the religious material was of a generally religious, non-extremist nature.
The accused's apparent purpose in seeking to play the footage was to support a submission about how the jury should treat the extremist material tendered by the Crown from the same devices, and what inferences the jury should draw from it.
Legal Issues
- Whether the 13 excerpts of video footage should be admitted into evidence or excluded in the exercise of the court's discretion under s 135(c) of the Evidence Act 1995 (NSW).
- Specifically, whether the probative value of the material was substantially outweighed by the danger that its admission would cause an undue waste of time.
Decision
Bellew J excluded the contested footage, applying the same reasoning he had set out in the preceding judgment, R v WE (No. 13) [2020] NSWSC 225. That earlier decision had addressed the relevant principles governing the discretion to exclude evidence under s 135(c) of the Evidence Act, and his Honour found those principles equally applicable here.
Four of the 13 excerpts were already the subject of a prior ruling made when the accused was represented, and were excluded for the reasons previously given. The Crown withdrew its objection to six of the remaining excerpts. The real contest concerned the "The Life of Muhammad" lecture series.
His Honour found the probative value of the "Life of Muhammad" material to be low. Playing the footage in its entirety would have consumed approximately 30 hours, or around six days of court time. That danger of undue waste of time substantially outweighed whatever probative value the material carried.
Bellew J noted that the Crown was prepared to make a concession to the jury that the material was of a generally religious and non-extremist nature, which addressed the purpose the accused sought to achieve through its tender.
Orders Made
• Evidence of "The Life of Muhammad" video footage will not be admitted
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 of undue waste of time, even where the accused is self-represented and seeks to rely on the material in his own defence.
- The Supreme Court assessed the probative value of the religious lecture footage as low, particularly in circumstances where the Crown was prepared to concede the non-extremist nature of the material to the jury.
- Approximately 30 hours of video footage, equivalent to around six days of court time, was sufficient to constitute a danger of undue waste of time for the purposes of s 135(c).
- The availability of a Crown concession addressing the substance of the accused's purpose was a relevant consideration in finding the probative value of the evidence insufficient to justify its admission.
- This ruling was one in a series of evidentiary decisions in the same trial, applying consistent principles across recurring applications to tender large volumes of material from seized electronic devices.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 135(c)
Cases:
- R v WE (No. 13) [2020] NSWSC 225