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Supreme Court 11 February 2020

R v WE (No.10)

[2020] NSWSC 41

Public order & justice offences
CRIMINAL LAW EVIDENCE WHETHER EVIDENCE RELEVANT EVIDENCE EXCLUDED

Citation: R v WE (No.10) [2020] NSWSC 41
Court: Supreme Court of New South Wales
Date: 11 February 2020
Judge(s): Bellew J

Background

The accused faced 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 1995 (Cth). The Crown alleged that between 6 and 12 October 2016, the accused jointly committed acts of preparation for religiously or ideologically motivated attacks using bladed weapons against law enforcement officers or members of the public in Sydney.

The Crown case included evidence of the accused's alleged sympathy with Islamic State, overseas travel to Egypt and detention in the northern Sinai region, and access to Islamic State propaganda materials including Dabiq magazine. The trial was due to commence on 12 February 2020.

Prior to trial, the accused brought a notice of motion seeking to exclude various parts of the Crown's proposed evidence. After several items were abandoned, one issue remained: whether the Crown could rely on two religious publications seized from the accused at a juvenile justice centre on 17 April 2019, and whether an expert report prepared by Dr Rodger Shanahan about those publications was admissible.

  • Whether the two religious publications seized approximately two and a half years after the alleged offence were relevant to the charges under the Evidence Act 1995 (NSW)
  • Whether, even if relevant, the probative value of the publications was outweighed by the danger of unfair prejudice under s 137 of the Evidence Act 1995 (NSW)
  • Whether Dr Shanahan's expert report on the publications was admissible

Decision

Bellew J found that the two publications were not relevant to the charges. The publications were seized in April 2019, well after the alleged offending in October 2016. His Honour noted that for the publications to be relevant, they would need to rationally affect the assessment of the probability of a fact in issue. Possession of the materials years after the alleged offending could not, without more, establish that the accused held any particular ideology or intention at the time of the alleged acts.

His Honour also observed that the publications were, in the main, conservative religious material of a general nature. Dr Shanahan had identified certain passages of concern within those publications, but those passages formed only a small part of the overall content. To concentrate on specific passages while presenting the material to a jury would risk giving a misleading impression of the publications as a whole.

Even if the publications had been relevant, Bellew J indicated he would have excluded them under s 137 of the Evidence Act 1995 (NSW). The risk was that a jury would ascribe substantially more weight to the highlighted passages than was warranted, creating a real danger of unfair prejudice to the accused that would outweigh any probative value. His Honour was careful to note that this observation carried no criticism of Dr Shanahan, who had simply provided the opinion sought of him.

Because the underlying publications were excluded, the court found it unnecessary to separately consider the admissibility of Dr Shanahan's expert opinions about them.

Orders Made

  • The evidence of the accused's possession of the two religious publications seized on 17 April 2019 was excluded.
  • Dr Shanahan's expert report on those publications was declared inadmissible.

Key Takeaways

  • Evidence of an accused's possession of materials seized well after the alleged offending will not automatically satisfy the relevance threshold under the Evidence Act 1995 (NSW); a rational connection to the facts in issue at the time of the alleged conduct must be established.
  • Under s 137 of the Evidence Act 1995 (NSW), a court may exclude evidence where the risk that a jury will place excessive weight on selected passages from otherwise general material creates a danger of unfair prejudice that outweighs probative value.
  • Where proposed expert evidence is directed entirely at underlying material that is itself inadmissible, the question of the expert evidence's admissibility does not need to be separately resolved.
  • The Supreme Court's reasoning illustrates that in terrorism-related trials, the temporal gap between alleged offending and the seizure of materials is a significant factor when assessing relevance.
  • Excluding evidence on relevance or prejudice grounds does not require any criticism of the expert who prepared a report; an opinion can be properly compiled yet still concern material that is inadmissible.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), s 101.6(1), s 11.2A
- Evidence Act 1995 (NSW), s 137

Cases
- Nye v NSW [2002] NSWSC 1270
- R v Privett [2001] NSWCCA 518
- R v Vinayagamoorthy and ors (2008) 238 FLR 117; [2008] VSC 599
- Zaknic Pty v Svelte Corporation Pty Limited (1995) 61 FCR 171