R v HG; R v WE (No 10) [2018] NSWSC 1270

Supreme Court New South Wales

Medium Neutral Citation: R v HG; R v WE (No 10) [2018] NSWSC 1270 Hearing dates: 15 August 2018 Date of orders: 15 August 2018 Decision date: 15 August 2018 Jurisdiction: Common Law Before: Bellew J Decision: See [15] Catchwords: EVIDENCE – Admissibility – Where indication given by the Crown immediately prior to the close of the Crown case of an intention to tender additional material – Where such indication constituted the first notice to the accused of such intention – Whether evidence ought be excluded – Whether procedurally unfair – Procedural unfairness sufficient to create a danger of unfair prejudice – Evidence rejected Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Haoui v R [2008] NSWCCA 209; 188 A Crim R 331 R v HG; R v WE (No 6) [2018] NSWSC 128 R v Rice (No 4) [2014] NSWSC 1525 R v Rogerson; R v McNamara (No 41) [2016] NSWSC 364 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 trial of the accused commenced on 24 July last and is now in its fourth week. Shortly prior to the conclusion of the Crown case (indeed only a matter of about an hour before) the Crown indicated that an issue had arisen in respect of its proposed tender, against the accused WE, of Issues 7 and 8 of a magazine entitled "Dabiq", a publication of Islamic State, which are said to have been accessed by WE in 2015. Mr Trevallion, who appears on behalf of the accused, objected to the proposed tender of that material. In order to place the issue which has arisen in its proper context, some short background is required. 2. Along with the accused HG, WE has pleaded not guilty to an indictment alleging that he engaged in an act or acts in preparation for a terrorist act or acts. It is part of the Crown case that at the time of his alleged commission of that offence, the accused held what might be described as a violent or, as it is sometimes described, jihadist ideology. In support of that assertion, the Crown relies on the fact that during the period leading up to the alleged commission of the offence the accused had accessed a range of what has been described as "extremist material" on the internet, some of which he downloaded. There is evidence that the two magazines which are the subject of the present tender were amongst the downloaded material. 3. In his opening address to the jury, the Crown said the following: Also evidence I expect will be placed before you that in November of 2015, WE left Australia with his parents for a holiday trip to Egypt and returned to Australia on 31 January 2016. WE was interviewed by members of an Australian security agency in April 2016 in relation to his travel in Egypt and told the people of that security agency that while in Egypt he had left his parents and had travelled to a place called El-Arish. El-Arish is a seaside city in Egypt in an area called the Sinai Peninsula, and specifically an area close to Israel and the Gaza Strip border. The northern Sinai area, I expect you will hear evidence, is, and has been for some time, an area of violence where terrorist attacks have occurred. In November of 2015 there was a group, a radical Islamist group, operating in that northern Sinai area which had been designated by Islamic State as being one of its provinces, known as a Wilayat. The Sinai province of Islamic State was what they were claiming this was, so this was the area to which WE travelled after parting from his parents, as he told these people in April 2016 when he was interviewed. 1. The Crown has adduced evidence of the interview to which he referred although I have previously ruled that some of that evidence is inadmissible: see R v HG; R v WE (No 6) [2018] NSWSC 128. In the course of the evidence-in-chief the witness through whom the evidence was led, the Crown asked the following questions, commencing at T440.27: Q. Did he tell you what time he arrived in El-Arish? A. I believe he arrived in the afternoon. He said he'd arrived in the afternoon. Q. Did he give you any explanation as to what he did in El-Arish after arriving in the afternoon? A. He said that he looked around some shops, he had some dinner and went to the beach. Q. In order to get the information about going to shops, did you ask a specific question, or did he volunteer that information? A. About the shops - I can't recall if I specifically asked a closed question about that, but - yes, I don't recall. Q. Did he provide any more detail about what shops he was referring to? A. Not to my memory. Q. You said that he also referred to having some dinner; is that correct? A. Yes. Q. Can you recall if he provided any more detail about that? A. Not to my memory. Q. Was that a topic about which you asked a specific question, or did he volunteer that information? A. I can't recall specifically whether I asked what he had or where he went for dinner. Q. You said that he also described going to the beach - yes? A. Yes. Q. Did he say what beach he was referring to? A. Not to my memory. 1. On the Crown case, El Arish is an area occupied by Islamic State. In his opening address to the jury, counsel for the accused said the following, commencing at T45.32: The Crown has also told you that in 2015, when the accused was 15, he travelled to Egypt with his family. This was in November 2015. You will hear evidence, ladies and gentlemen, that the accused, while he was in Egypt, decided to take a day trip to El-Arish, which is a town on the Mediterranean coast. At that time, just prior to that, you will hear that the family was staying in a place called Tanta, which as I understand is in the north of Egypt. 1. Pages 32, 37, 40 and 41 of issue 7 of Dabiq magazine (which is the subject of the present objection) contain references to the Sinai, and to El-Arish. In issue 8 there is a reference (at p 57) to the Sinai Peninsula. The Crown seeks to rely on the fact that the accused accessed material containing those references as evidence going to the ideology to which I earlier made reference. 2. The principal objection raised on the part of the accused was that any probative value that the evidence might have was outweighed, and outweighed substantially, by the danger of unfair prejudice. The danger of unfair prejudice was said to lie in the fact that it was only a short time ago that the Crown had foreshadowed an intention to tender the material. The thrust of counsel's submission was that this was procedurally unfair. Counsel submitted, in particular, that had he been on notice of the fact that the Crown proposed to tender the actual magazines (as opposed to tendering evidence that the accused had accessed and downloaded them) he would have undertaken further inquiries by reference to other material that the Crown had served. Counsel submitted, in effect, that those opportunities had now effectively been lost in circumstances where the Crown case is all but closed. 3. The Crown submitted that the evidence was highly probative, and further submitted that the terms in which the danger of unfair prejudice had been articulated were imprecise, to the point that when properly assessed, there was no danger of any unfair prejudice at all. 4. The approach to the issue by counsel for the accused necessarily assumes an acceptance of the fact that the evidence is relevant. The only issue is whether or not it ought be excluded pursuant to s 137 of the Evidence Act 1995 (NSW). 5. I am prepared to accept that the evidence has some probative value although I would not necessarily place it at the high level submitted by the Crown. The issue is whether or not that probative value is outweighed by the danger of unfair prejudice. As I have indicated, the danger of unfair prejudice which is relied upon in the present case is essentially a procedural one. 6. A number of observations may be made about the circumstances in which the issue has arisen. 7. Firstly, it is to say the least far from ideal to have a situation arise where counsel for an accused person is told, as it were, at the "heel of the hunt" that particular material not previously relied upon is now sought to be tendered. I accept that a Crown case may necessarily evolve to some extent as it progresses. However, this material has obviously been in the Crown's possession for some considerable period of time. The transcript of the submissions made on this argument will reflect the fact that I extended an opportunity to the Crown, on more than one occasion, to offer an explanation as to why it was that it was only now that an indication had been given that it was sought to be tendered. I mean no criticism of the Crown when I observe that no real explanation was offered, other than a passing reference to the fact that it had become necessary to review the evidence in the light of previous rulings that I had made regarding the admissibility of evidence of the interview with the accused in which his trip to Egypt was discussed. I would simply observe that those matters were argued and ruled upon on 31 July, which is now more than two weeks ago. 8. Secondly, procedural unfairness of the kind which is relied upon by counsel for the accused case is capable of amounting to prejudice of the kind to which s 137 of the Act is directed. This much is clear from the decision of the Court of Criminal Appeal in Haoui v R [2008] NSWCCA 209; 188 A Crim R 331, a judgment which was adopted by me in R v Rice (No 4) [2014] NSWSC 1525, as well as in R v Rogerson; R v McNamara (No 41) [2016] NSWSC 364 at [23] to [25]. 9. Thirdly, and although the Crown's submission as to the nebulous nature of the suggested prejudice may have some superficial merit, the fact of the matter remains that counsel for the accused was not on notice of any reliance by the Crown on this material until immediately before the end of the Crown case. It is evident that a plethora of so-called "extremist material" was served by the Crown on the representatives of each of the accused. What the Crown ultimately tendered against the accused WE was a sample of that material, the details of which are contained in Exh AL. I am satisfied that had counsel for the accused known that this particular material was to be relied upon, he could have had, and would no doubt have directed himself to, the opportunity of reviewing the entirety of the material which had been served to determine whether there was anything else contained within it which might sustain an inference other than the adverse inference which is sought to be relied upon by the Crown. That, in my view, is more than sufficient to create a danger of unfair prejudice. 10. For those reasons, the tender of the two issues of the magazine should be rejected.