Supreme Court New South Wales Medium Neutral Citation: R v HG; R v WE (No 8) [2018] NSWSC 1261 Hearing dates: 7 August 2018 Date of orders: 07 August 2018 Decision date: 07 August 2018 Jurisdiction: Common Law Before: Bellew J Decision: See [4] Catchwords: EVIDENCE – Admissibility – Evidence of clothing found in the possession of the accused at the time of arrest – Where investigating police dressed a mannequin in the clothing and photographed it – Where Crown sought to tender the photograph – Objection taken to the evidence – Evidence excluded Legislation Cited: Evidence Act 1995 (NSW) 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 INTRODUCTION 1. The accused HG and WE have each pleaded not guilty to a charge of doing an act or acts in preparation for a terrorist act or acts. The Crown has led evidence of the finding of two backpacks at a Musalla where the accused were arrested. One of the backpacks contained what have been described in evidence as four "neck warmers or neck gaiters" (T249.30). A photograph of one of the neck gaiters forms part of Exh S. The neck gaiters themselves are Exh W. Each has what might be described as a camouflage pattern. 2. Following the seizure of the backpack, the investigating police placed the first of the neck gaiters on the head of a mannequin in a way which covered the area from the upper part of the bridge of the nose down to the neck. The other was placed on the mannequin's head, covering both the head and the forehead. The result was that the only visible part of the mannequin's head was the eyes. The mannequin was then photographed wearing the neck gaiters arranged in that way. The Crown now wishes to tender that photograph. Objection has been taken by counsel for each of the accused, who have submitted that the photograph should be excluded pursuant to s 137 of the Evidence Act 1995 (NSW). 3. Accepting that the evidence of the photograph is relevant, its probative value is in my view marginal at best, particularly in circumstances where the items are already in evidence. Moreover, in my view the danger of unfair prejudice is high. The confronting and menacing appearance depicted in the photograph lends itself to misuse by the jury. 4. There is obviously nothing preventing the Crown from making a submission to the jury that they should infer that the neck gaiters were to be worn in a particular way. However for the reasons expressed, any probative value which the photograph might have is outweighed by the danger of the unfair prejudice that it creates. It should therefore be excluded. ********** 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