Supreme Court New South Wales Medium Neutral Citation: R v HG; R v WE (No 5) [2018] NSWSC 1212 Hearing dates: 3 August 2018 Date of orders: 03 August 2018 Decision date: 03 August 2018 Jurisdiction: Common Law Before: Bellew J Decision: See [9] Catchwords: EVIDENCE – Where Crown sought to lead evidence of footage, images and publications found on electronic devices linked to the accused – Where there was no evidence that the accused had read or viewed the material – Whether evidence relevant – Assessment of probative value and danger of unfair prejudice – Evidence admitted Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Elomar & Ors v R [2014] NSWCCA 303; (2014) 316 ALR 206 Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37 Category: Procedural and other rulings Parties: Regina – Crown HG – Accused WE – Accused Representation: Counsel: I Bourke SC and R Ranken – Crown B Walmsley QC – Accused HG J Trevallion – Accused WE Solicitors: Director of Public Prosecutions (Cth) – Crown Birchgrove Legal – Accused HG Alexanders Lawyers – Accused WE File Number(s): 2016/3051142016/305103 Publication restriction: Nil Judgment – EX TEMPORE (REVISED) 1. The accused HG and WE have each pleaded not guilty to a charge of doing acts in preparation for a terrorist act or acts. The Crown seeks to lead evidence of material found upon electronic devices connected with each accused. Counsel for WE has taken objection to the tender of specific parts of this evidence, namely two magazines and some short footage. The tender of other material which was initially in issue has been deferred and/or has been resolved by agreement. 2. The two magazines in question are issues 1 and 12 of 'Dabiq' which, on the Crown case, is published by Islamic State. Each issue contains, amongst other things, images which might be properly regarded as confronting. Further, the cover of issue 12 bears the words "Just Terror". It is accompanied by a photograph of emergency rescue personnel appearing to give aid to victims of a bombing in Paris. Issue 1 is entitled "The Return of the Khilafah". There are also references on the cover of that edition to "Reporting on Iraq and Sham". 3. The footage in question comprises two short excerpts taken from what appears to be a documentary. The two excerpts depict bodies of persons who have been beheaded, with their heads impaled on a nearby fence. There is also footage of a dead body on public display, attached to a crucifix. 4. The Crown seeks to lead this evidence on the basis that it is relevant to, and demonstrative of, the accused's intention and ideology. Counsel for the accused submitted that the magazines are not relevant because there is no evidence that they have ever been read or even viewed by the accused. No issue of relevance was raised in relation to the excerpts of footage. However, counsel further submitted that the evidence in each case should be excluded pursuant to s 137 of the Evidence Act 1995 (NSW) ('the Act'). 5. Propositions similar to those advanced on behalf of the accused were considered by the Court of Criminal Appeal in Elomar & Ors v R [2014] NSWCCA 303; (2014) 316 ALR 206. The appellants in that case had been tried for, and convicted, of conspiring to commit acts in preparation for a terrorist act and the Crown had relied on material of a not dissimilar nature to that presently in issue. The Court (Bathurst CJ, Hoeben CJ at CL and Simpson J (as her Honour then was)) addressed (commencing at [442]) the proposition that the material was not relevant because there was no evidence that it had been viewed or read by any of the appellants. The Court observed that when large quantities of material of this nature are found in the possession of a person, it is not an unreasonable assumption that he or she has viewed at least some of it, or intends to do so. The Court further observed that it was a fair assumption that material of that nature is in a person's possession for a purpose, that such purpose may include viewing it or passing it on to some other person, and that the possession of large quantities of such material is necessarily indicative of an interest in it, irrespective of whether or not it has been viewed. In these circumstances, the Court concluded that the trial judge was correct in concluding that the evidence was relevant to the state of mind of each of the appellants. 6. Although the various appellants in Elomar had been charged with conspiring to commit acts in preparation for a terrorist act, the Court's observations as to the relevance of material of this nature are equally applicable to the circumstances of the present case, where each accused is charged with the substantive offence of doing acts in preparation for a terrorist act or acts. Irrespective of the fact that there is no evidence to establish that the accused WE viewed or read the material to which objection has been taken, it is clearly relevant to, and highly probative of, his intention and his ideology. 7. The Court in Elomar also considered the operation of s 137 of the Act in relation to material of this nature and observed (at [444]) that for the purposes of that section it was not sufficient to demonstrate that the evidence might trigger emotional responses in the members of the jury. The Court observed that for evidence to create a danger of unfair prejudice, it must be demonstrated that it is likely that it will be misused in some way: Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37. The Court further concluded (at [447]) that the trial judge had correctly assessed the probative value of the evidence and its potential unfairly prejudicial effect, and that although the trial judge had not said so expressly, he obviously regarded the probative value of the evidence as substantial. The Court proceeded to reject the proposition that the evidence should have been excluded pursuant to s 137 of the Act. In particular, the Court said (at [447]): There is nothing unfair about the admission of evidence that shows that an accused person is in possession of material apparently supportive of terrorist activity. Unless it could be reasonably shown that the impact of the evidence would be likely to be that the jury would fail to comply with their duty as explained to them by the trial judge, the only reasonable conclusion was that the probative value of the evidence substantially outweighed any remote danger of unfair prejudice. 1. In my view, those observations are entirely apposite to the circumstances of the present case. The probative value of the evidence in the present case is clearly high, and there is no danger of misuse in the relevant sense. At the time of the tender of the material it will obviously be appropriate to warn the jury of the nature of the material, and direct them as to the necessity to view it objectively and dispassionately. The latter part of the direction will be repeated in my summing-up. 2. For these reasons the evidence should be admitted. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 April 2020