R v HG; R v WE (No 7) [2018] NSWSC 1277

Supreme Court New South Wales

Medium Neutral Citation: R v HG; R v WE (No 7) [2018] NSWSC 1277 Hearing dates: 9 August 2018 Date of orders: 09 August 2018 Decision date: 09 August 2018 Jurisdiction: Common Law Before: Bellew J Decision: See [4] and [5] Catchwords: EVIDENCE – Admissibility of documents found in the possession of the accused in custody some weeks following his arrest – Where some of the documents expressed extremist views – Whether the probative value of the evidence was outweighed by the danger of unfair prejudice – Evidence admitted 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 pleaded not guilty to a charge of doing an act or acts in preparation for a terrorist act or acts. The Crown seeks to tender, in its case against the accused HG, some notes found in his possession some weeks after he was taken into custody following his arrest on 12 October 2016. The notes are dated 18 November 2016. Translations of them appear in an annexure to the statement of Joelle Dib of 18 January 2017 in the following terms: (i) Translation of image marked '18/11/201615:27' Translation above window: There is no God but God Mohammed is the messenger of God Translation to the right side of the window: No God Except God Loyalty Translation to the left side of the window: And say: Truth has arrived, and Falsehood perished' Patience Wisdom (ii) Translation of image marked '18/11/201615:30-1' Translator's note: Arabic text in Image not captured from the beginning of the sentence, so the translation might not make sense and It could change the context if the Arabic text was shown in full In the name of God, the merciful, the gracious #thecompanions In the nation like the companions And what is known and injury Has seen the chosen one The lights and the secrets In God until it is shown Guidance has named the religions (iii) Translation of image marked '18/11/201615:30-2' By God, this life will parish So rise to paradise with rolled up sleeves We hove smelt the musk on our loved ones And the face did not seem sad As if the virgins called and said Darling come to serenity (iv) Translation of image marked '18/11/201615:31' Al-Tawheen (unification) Book (v) Translation of Image marked '18/11/201615:29-3' In the name of God, the merciful, the gracious There is no ruling except the ruling of God There is no Sharia (Islamic law) except the sharia (Islamic law) of the merciful the gracious Destruction destruction on the worshippers of the cross and idols And the worshippers of rulers, scholars of evil and money Peace peace upon the followers of the prophet and his righteous companions Abu Baker and Ibin Al-Khattab And Ibin Affan and Abi Thorab (vi) Translation of image marked '18/11/201615:29-4' God is our Lord. He has many attributes The only living one, the possessor. The king of kings, who has no partners The strong, solid enables Sitting above his great throne Like it has been mentioned in the Qur'an and Hadith (Prophetic book) As it has been narrated by Moawiya and the nation, as the chosen prophet (peace be upon him), said Where is your almighty Lord Where is your grand lord Where is your merciful lord She pointed towards the throne of the perfect one So the beloved Eden (peace be upon him) said You are a believer of the grand The great Imam Malek said Evenness is known And amusement is unknown (vii) Translation of image marked '18/11/201615:30-3' In the name of God, the merciful, the grodous There is no ruling except the ruling of God There is no Sharia (Islamic law) except the sharia (Islamic law) of the merciful the gracious Destruction destruction on the worshippers of the cross and idols And the worshippers of rulers, scholars of evil and money Peace peace upon the followers of the prophet and his righteous companions Abu Baker, Omar, AH, Osman, Moawiya Ibin Abi Sufyan, and peace upon the followers of guidance As to what follows, (viii) Translation of image marked '18/11/201615:30-4' In the name of God, the merciful, the gracious tftbethrone ^unification God is our Lord. He has many attributes The only living one, the possessor. The king of kings, who has no partners The strong, solid enabler. Sitting above his great throne Like it has been mentioned in the Qur'an and Hadith (Prophetic book) As it has been narrated by Moawiya and the nation, as the chosen prophet said to her, Where is your almighty Lord Where is your grand lord Where is your merciful lord She pointed towards the throne of the perfect one So the beloved Eden (peace be upon him) said You are a believer of the grand and almighty The great Imam Malek said God's evenness is known And amusement is unknown 1. The proposed tender is limited to the notes in (iii), (v) and (vii). Senior counsel for HG, whilst accepting that they were relevant, submitted that they ought be excluded pursuant to s 137 of the Evidence Act 1995 (NSW) ('the Act'). In support of that position, senior counsel submitted that the probative value of the notes was not high, and that it was outweighed by a danger of unfair prejudice arising from the fact that they were: 1. dated 6 weeks after the accused's arrest; 2. seized when he was in custody; 3. in the nature of "his own jottings in his own private book that he had available to him"; and 4. found against a background of a "traumatic" arrest in which the accused had been "taken into custody by an aggregate of 10 to 20 or 30 policemen". 1. The Crown submitted that notwithstanding the fact that the creation of the documents apparently post-dated the accused's arrest, the evidence nevertheless supported the Crown case that the accused had an extremist ideology. The Crown accepted that not all of the notes were written in extremist terms and, as I have noted, limited the tender to items (iii), (v) and (vii). 2. Bearing in mind the basis upon which the Crown seeks to lead this evidence, the documents numbered (iii), (v) and (vii) are clearly relevant and admissible. References in each of those documents to matters such as "smelling the musk on our loved ones", "destruction of the worshippers of the cross and idols" and "destruction … of the worshippers of rulers, scholars of evil and money" are of significant probative value. None of the matters advanced on behalf of the accused support a conclusion that such probative value is outweighed by the danger of unfair prejudice. There is not the slightest suggestion that if the evidence were admitted, the jury would engage in some impermissible process of reasoning. For those reasons, the documents are admissible. 3. The documents numbered (i), (ii), (iv), (vi) and (viii) have little probative value bearing in mind the basis on which the Crown argued that this material was relevant. Whilst they set out religious views, such views are expressed in terms which are other than extreme. In the course of argument, senior counsel for the accused foreshadowed that if I were to admit documents (iv), (v) and (vii), the remaining documents should also be tendered. For the reasons I have expressed, the remaining documents would appear to have little, if any, relevance to any issue in the trial. If senior counsel for the accused wishes those documents to be tendered, then that is a course which he should initially pursue in discussions with the Crown.