R v HG; R v WE (No 9) [2018] NSWSC 1262

Supreme Court New South Wales

Medium Neutral Citation: R v HG; R v WE (No 9) [2018] NSWSC 1262 Hearing dates: 9 August 2018 Date of orders: 09 August 2018 Decision date: 09 August 2018 Jurisdiction: Common Law Before: Bellew J Decision: See [8]; [16] Catchwords: EVIDENCE – Admissibility – Evidence of the finding of the accused's phone in a dismantled state – Whether that evidence admissible against the co-accused – No point of principle

EVIDENCE – Admissibility – Where evidence that one accused left a mobile telephone behind at his premises when he and the co-accused left those premises for the purposes of committing the alleged offence – Where the Crown alleged that the act of leaving the phone behind was a deliberate anti-surveillance tactic of that accused – Whether evidence was admissible against the co-accused on the basis that a joint decision had been reached to leave the phone behind – Evidence rejected 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 adduced evidence that the mobile telephone of the accused WE was found at the Musalla at which he was arrested in a partially dismantled state. It had been removed from a protective case, and had also had the battery removed. The Crown tendered the phone in that state against the accused WE, to which there was no objection. However, the Crown also sought to tender the items against the co-accused HG. The basis of that tender was that in the Crown's submission, it would be open to the jury to infer that, jointly with WE, HG had removed the battery from WE's phone prior to, or during, their attendance at the Musalla. On the Crown case that constitutes, on the part of both accused, what was described in argument as evidence of "anti-surveillance". 2. In support of its position, the Crown also sought to tender footage found on HG's phone depicting a person removing the battery from a phone, the brand and model of which are identical to those of WE's phone. On the footage, the person is seen to remove the battery from the phone, peel away the outer layer, identify a particular component underneath, and remove it. That footage was accompanied by dialogue which has been translated as follows: In the name of God, the most merciful. Have a look brothers what the spy's (sic) do with us, this Samsung Galaxy S5. It is working as you can see. First thing we do is turn the phone off … We open the phone and get battery, this battery is till (sic), it's a new phone. This is in most phones, Samsung and iPhone. Have a look at what is inside the battery. Open the battery, the battery won't get wrecked. Can you see what this is! This black thing, you open it, it's a listening device with GPS, they hear everything you say. Look, look, there's hearing device with the GPS device. You take it off, I mean, don't worry, the battery won't be wrecked. This here is the part of the battery and here where it is connected in the electric part so they can listen and spy on us, look, you pull it, you take it off, it's normal, nothing happens to the phone. There it is the hearing device is apparent if you can see it. You close the thing and you tape it again. There, the battery is back to the way it was, we place it in the phone and we turn the phone on. The phone goes back to working, there is nothing wrong with it. Uhhh, please share this video so that everyone knows how they spy on us and my many thanks to you, and Bye. 1. The Crown submitted that HG's possession of this footage was the consequence of his having undertaken searches on the topic of electronic devices, and their use for the purposes of tracking a person's movements or spying on them. 2. The Crown also sought to support the tender of WE's dismantled phone against HG by evidence of the finding of a Casio "G-Shock" watch in the bathroom of the Musalla. In this regard, there is evidence in Exh AK (a list of searches undertaken on HG's laptop computer) that on 3 October 2016 a search was recorded in terms "Can your G-Shock be tracked?". 3. Finally, the Crown sought to support the tender of the dismantled phone against HG by evidence of a screenshot created on HG's phone on 11 October 2016 (the day prior to his arrest) accompanied by the words "clear browsing data". 4. Senior counsel for HG submitted that the evidence of the finding of WE's phone was irrelevant in the case against his client, for the simple reason that the evidence was not capable of supporting a conclusion that HG played any part in the phone being dismantled. Senior counsel made it clear that he raised no objection to the tender of the footage discussed at [2] against his client, the tender of the watch, the search conducted in relation to it, or the screen shot. The Crown submitted that the totality of the evidence supported a conclusion that the accused HG had "an interest in anti-surveillance" and that the evidence was accordingly admissible. 5. The evidence which will be relied upon by the Crown in its case against HG, namely the footage, the searches and the screenshot, is capable of sustaining an inference that HG had an interest in counter-surveillance techniques. Senior counsel for HG did not suggest the contrary. Whilst that may be relevant it does not, in my view, sustain an inference that HG played any part whatsoever in dismantling WE's phone. 6. For these reasons, evidence of the finding of WE's telephone in a dismantled state should not be admitted in the Crown case against HG. 7. At the time of raising the issue which I have dealt with in the preceding paragraphs, the Crown also foreshadowed an intention to lead evidence of the fact that the accused HG left his mobile telephone behind at his home when he and WE departed for Bankstown on the morning of 12 October 2016, (that being the morning of the commission of the alleged offence). The Crown submitted that the act of HG leaving his telephone behind was a deliberate one, and was in the nature of an "anti-surveillance" tactic. There is obviously no issue as to the admissibility of this evidence against HG. However, the Crown also seeks to lead it in its case against the co-accused WE. 8. The Crown also sought to tender, as against the accused WE, the footage and translation concerning the dismantling of a mobile phone which I have summarised at [2] above and which was found on the device of the accused HG, as well as the evidence of the finding of the watch at the Musalla. Counsel for WE objected to that course. 9. In support of its position, the Crown relied on the fact that Exh AL (which is a summary of the evidence found on electronic devices connected with the accused WE) includes evidence (at p 67) that on 9 October 2016 Google searches were conducted on WE's phone "How to restart samsung galaxy s5" and "How to reset samsung galaxy s5 to factory settings". 10. Counsel for WE submitted that there was no evidence that WE was a party to any decision of HG to leave his phone at his home. Counsel also objected to the tender of the footage set out in [2] against his client. He submitted, in particular, that WE was not connected with the footage in any way (it having been found on the phone of HG), that it was not alleged by the Crown that WE had acted in the manner depicted on the footage, and in particular that it was not alleged by the Crown that WE had "unwrapped" the battery in the telephone and removed any part of the device as had been depicted in the footage. 11. The Crown accepted that the searches at p 67 of Exh AL did not, in terms, refer to the dismantling of a phone. However, it was the Crown's position that evidence searches of that nature, along with the other evidence, were generally consistent with a desire on the part of the accused WE to "remove evidence". The Crown submitted that when all of this evidence was taken into account, the evidence of HG leaving his phone behind was evidence against WE. 12. In my view, the fact that the accused HG left his phone behind when he and WE left his premises on the morning of 12 October 2016 is not evidence which is relevant and admissible in the Crown case against WE. The evidence available does not, in my view, support an inference that WE was somehow a party to any decision made by HG to leave the phone behind. Whilst evidence of searches undertaken by WE are properly admissible against him, they are insufficient to support the Crown's position on this particular issue. 13. Moreover, the footage and accompanying translation summarised in [2] above are in my view irrelevant to the Crown case against WE and therefore not admissible against him. There is no suggestion whatsoever that such material was found in WE's possession. Even if the view was reached that the evidence of that footage and the translation was somehow admissible against WE, its probative value as against WE is slight, but its prejudicial effect is substantial. In particular, although the phone of WE was found in a dismantled state, there is no evidence whatsoever that WE dismantled the battery of his phone as shown on the footage, much less removed a particular component. In those circumstances, the danger of unfair prejudice outweighs any limited probative value that the evidence might have. 14. Accordingly, the Crown will not be permitted to rely on the circumstances surrounding the phone of the accused HG being left behind at the premises in its case against WE, nor is it entitled to rely, in its case against WE, on the video footage and translation to which I have referred.