Supreme Court New South Wales Medium Neutral Citation: R v Khan (No 6) [2019] NSWSC 349 Hearing dates: 2 April 2019 Date of orders: 02 April 2019 Decision date: 02 April 2019 Jurisdiction: Common Law Before: Bellew J Decision: Evidence admitted Catchwords: CRIMINAL LAW – Evidence – Accused charged with commission of a terrorist act – Where Crown sought to tender evidence of footage of September 11 attacks found on the accused's computer – Assessment of probative value – Whether probative value outweighed by the danger of unfair prejudice Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Festa v R (2001) 208 CLR 593; [2001] HCA 72 Gilbert v R (2000) 201 CLR 414; [2000] HCA 15 IMM v R (2016) 257 CLR 300; [2016] HCA 14 Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470 Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37 R v Glennon (1992) 173 CLR 592; [1992] HCA 16 Standen v R [2015] NSWCCA 211; (2015) 253 A Crim R 301 Category: Procedural and other rulings Parties: Regina (Crown) Ihsas Khan (Accused) Representation: Counsel: P McGuire SC and K Curry (Crown) T Anderson (Accused) Solicitors: Director of Public Prosecutions (Cth) (Crown) Legal Aid (NSW) (Accused) File Number(s): 2016/272232 Publication restriction: Nil Judgment – EX TEMPORE (REVISED) 1. The accused has pleaded not guilty on the grounds of mental illness to a charge that on 10 September 2016, at Minto in the State of New South Wales, he did engage in a terrorist act. The terrorist act involved stabbing the victim, Wayne Greenhalgh, multiple times with a knife, with the intention of killing him. There is no dispute that the ingredients of that offence can be established beyond reasonable doubt. The sole issue centres upon the accused's mental state at the time of the attack. That is an issue in respect of which the accused bears the onus of proof, on the balance of probabilities. 2. The Crown has sought to tender footage which the accused accessed on his computer the day before he stabbed Mr Greenhalgh. The tender of that footage has been objected to by counsel for the accused who has relied on s 137 of the Evidence Act 1995 (NSW) ("the Act") which mandates the exclusion of the evidence if its probative value is outweighed by the danger of unfair prejudice. 3. Before dealing with the issues, it is necessary for me to set out some matters of background so as to put those issues into their proper context. 4. The Crown case is that on 10 September 2016 Mr Greenhalgh was going for a walk in the suburb of Minto where he lived. He regularly walked in that area, sometimes in the morning, sometimes in the afternoon. He generally took a particular route from, and back to, his home. On the afternoon of 10 September 2016, shortly before 4pm, he walked past the accused who was sitting on a fence near his (i.e. the accused's) home. Mr Greenhalgh noticed that the accused stood up and went into his house, before coming back a short while later in possession of a red backpack. The accused then approached Mr Greenhalgh and produced a knife from the backpack, which he then used to repeatedly stab Mr Greenhalgh in the right abdomen, the right arm and the left-hand side of his face and neck. Mr Greenhalgh sustained substantial injuries as a consequence of the attack. But for the brave intervention of some neighbours, he may well have died. 5. Included in Exh A which has been tendered in the Crown case is a copy of the accused's diary. It is not necessary to canvas the entirety of the entries in that diary. For present purposes it is necessary for me to refer only to two of them. 6. In one entry in the diary [1] the accused wrote the following: Qualities I want: 1. 30%; 2. 20%; 3. 10%; 4. 35%; 5. 5%. 1. Underneath that, the following corresponding entries appeared: 1. The soft gentle manners of Osama bin Laden 2. No fear of the blame or blames of Anwar al-Awlaki 3. Intellect patience of Tareh Mehana 4. Fighting skills and Love for Allah of Tamerlan Tsarnaev 5. Nonchalance of Dzhokhar Tsarnaev. 1. I note in passing that the persons referred to in items 4 and 5 are persons convicted of what is generally known as 'the Boston Marathon bombing'. 2. The following entry also appears in the diary: [2] I couldn't give two shits what kuffar say - I want it to go global so the believers can see my deed Alwaj. Sunday's operation is easy as fuck. I like ease. 1. There is evidence (indeed, it is common ground) that the reference to "kuffar" is a reference to a non-believer. It is also common ground that the "Sunday" to which reference is made was the 15th anniversary of the attack on the World Trade Centre in New York on September 11, 2001. 2. The evidence in the Crown case also includes Exh R, which comprises other material found on the accused's computer. Amongst that material [3] is a document headed "Role models in Islam (aka the honor list)". Amongst the nominated "role models" are Osama bin Laden, Dzhokhar Tsarnaev and Tamerlan Tsarnaev. 3. Exhibit S tendered by the Crown is footage entitled "Osama Bin Laden, Lion of Jihad". That footage is yet to be played to the jury. However, it depicts Osama bin Laden generally extolling the virtues of the attack on the World Trade Centre on September 11. 4. Also tendered in the Crown case is exhibit V, which sets out a number of searches and bookmarks which were found on the accused's computer, and which demonstrate his internet browsing history. An inescapable inference from one entry in exhibit V [4] is that at about 8.12am on 9 September 2016, which was the day prior to his stabbing of Mr Greenhalgh, the accused accessed YouTube footage entitled "9/11-September 11th 2001-Attack on the World Trade Centre-YouTube". It is this footage that the Crown now seeks to tender. The accused has given a history to one or more of the expert psychiatrists who will give evidence that he viewed that footage on 9 September 2016 for what might be neutrally described as inspirational purposes. I have viewed the footage, which is of approximately 15 minutes duration. It is appropriate that I shortly summarise it. 5. The footage commences with images of the New York skyline and the Twin Towers of the World Trade Centre. There is a voiceover which is obviously taken from a commercial radio broadcast on the day of the attack, giving a weather forecast. There follows generic footage of an airport showing, in particular, an American Airlines aircraft taking off. There is then what might be described as a reconstruction of a call to Air Traffic Control from a flight attendant on one of the planes which were attacked, reporting people having been stabbed on that flight. Immediately thereafter, there is a re-enactment, from inside the first of the towers which was struck, of an aircraft crashing into the building from the outside. 6. Sirens are then heard, followed by a broadcast breaking the news of the attack. Footage of the second aircraft crashing into the second tower is then shown, followed by an announcement of the attack by the then President of the United States, George W Bush. Footage of bodies falling from one of the towers is then shown, followed by footage of the collapse of the towers in a cloud of dust with people fleeing the area. Music, which might be described as solemn, is then played accompanied by footage of obviously distraught persons in the street. 7. There is then commentary by a person who I infer was on duty as a firefighter on the day of the attacks, describing the aftermath of what he saw. The footage ends with a further voiceover from President Bush condemning the attacks. Footage of the destruction is displayed simultaneously with President Bush refering to the "cowardly acts" which were perpetrated. The footage then concludes with a slide stating "In memory of all victims". 8. Expert psychiatric evidence will be led in this case by both parties. I expect that Professor Greenberg, who will give evidence for the Crown, will say that whilst the accused was suffering from Obsessive Compulsive Disorder at the time of his attack on Mr Greenhalgh, he was not schizophrenic, was not psychotic, and did not display any symptoms of disordered thought. The opinion of the two psychiatrists to be called in the case for the accused, Dr Adams and Dr Reznik, will, I anticipate, be to the contrary. 9. Professor Greenberg will also give evidence, as I understand it, that the material which led him to form his opinion included footage of the accused being interviewed by the police immediately after the attack which, in his opinion, indicated no level of disordered thought. I also expect that when he is referred to the footage which is the subject of the present application, Professor Greenberg will express the view that an act of accessing footage of that nature is also inconsistent with the proposition that the accused was suffering from any form of disordered thought. I expect that Professor Greenberg will also say that, far from being evidence of random schizophrenic-type behaviour, the accused's act of accessing this footage is demonstrative of a direct area of interest to which he applied a focus only 24 hours before the attack on Mr Greenhalgh. 10. The Crown submits that for these reasons, the evidence goes directly to the issue of whether the accused was, at the time of the attack on the following day, able (inter alia) to tell right from wrong. The Crown will argue, based on the evidence of Professor Greenberg, that (inter alia) the accused's actions in accessing this footage is inconsistent with any notion of disordered thought, and inconsistent with the presence of psychotic symptoms. It is on that basis that the Crown has submitted that the evidence has substantial probative value. The Crown has accepted that the evidence is prejudicial, in the sense that it may go some way to defeating the accused's defence. However, the Crown has submitted that any prejudice in that sense is not unfair, and has pointed to the fact that the accused has admitted to one or more of the psychiatrists that he watched the footage the day before his attack on Mr Greenhalgh. 11. The Crown further submitted that the risk of an emotional response from the members of the jury could be properly addressed by a firm direction, reminding them of the purpose for which the footage is tendered, and instructing them that they must, as part of their function, ignore any emotional response which might otherwise stem from it. 12. Mr Anderson, on behalf of the accused, submitted that the probative value of the evidence was low. He submitted that the Crown was already able, by virtue of a combination of Exh V and the accused's own admissions, to establish that the accused viewed the material the day prior to stabbing Mr Greenhalgh, and that he did so for the reasons he expressed. Mr Anderson submitted that in those circumstances the tender of the footage added nothing, other than the risk of an unnecessary emotional reaction on the part of the jury which gave rise to a danger of unfair prejudice. He submitted that the tender of the footage would invite the jury not only to view it, but to engage in a negative and emotional response which was adverse to, and unfairly prejudicial, to the accused. 13. Finally, Mr Anderson submitted that any risk of unfair prejudice could not be cured by any direction. 14. Before resolving the issue, it is appropriate that I make a number of observations about s 137 of the Act, which is in the following terms: "In a criminal proceeding the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant." 1. Firstly, the term "probative value" is defined in the Dictionary to the Act in the following terms: "The extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." 1. The only fact in issue in the present case concerns the accused's mental state at the time of his attack on Mr Greenhalgh. 2. Secondly, a determination under s 137 does not involve the exercise of a discretion. The section mandates the exclusion of evidence if its probative value is outweighed by the danger of unfair prejudice to the accused. 3. Thirdly, the terms of the section impose, in effect, a two-step test. The first step is to assess the probative value of the evidence. The second is to determine whether or not that probative value is outweighed by the danger of unfair prejudice. 4. Fourthly, it is important to note that the section speaks of a "danger" of unfair prejudice. A decision to exclude the evidence does not depend upon a determination that the evidence is, in fact, unfairly prejudicial. 5. Fifthly, the fact that evidence may be harmful or, indeed catastrophic, to an accused's case does not mean that there is a danger that it will be unfairly prejudicial. The unfair prejudice to which s 137 is directed is prejudice which is unfair because there is a real risk that the evidence will be used (or misused) by the jury in some unfair way, that it will be used (or misused) to make a decision on an improper basis, or that it will be used (or misused) to make a decision on a basis which is not logically connected with the issues in the case. [5] Evidence which might create a danger of unfair prejudice may include evidence which is apt to provoke an irrational, emotional or illogical response. [6] 6. With those matters in mind, I turn to consider the probative value of the evidence. In my view, the probative value of the evidence is significant. The footage, the general nature of which will be self-evident from my description of it, was viewed by the accused the day before he attacked Mr Greenhalgh. The accused himself essentially said he used it for inspirational purposes, all of which is indicative of a focus having been applied by the accused to his (then planned) attack of Mr Greenhalgh. It is most certainly capable of rationally affecting the assessment of the only fact in issue in this case, namely the accused's mental state. It is so capable because it may be open to the jury, depending on how they assess the evidence, to reach a conclusion that accessing it and viewing it were actions which are inconsistent with suffering from disordered thought. 7. Moreover, the accused's accessing and viewing of the footage comes against a background of the other evidence in the Crown case to which I have referred, and in which (inter alia) the accused expressed unequivocal admiration for Osama Bin Laden. It also comes against a background of the accused having been in possession of (and, by inference, having viewed) footage in which Osama Bin Laden sought to praise and justify the attacks on the World Trade Centre on September 11. [7] It is significant given that background, that the material that the Crown now seeks to tender is footage of those very attacks. 8. All of that evidence is capable of being used by the jury to form a conclusion consistent with the expected opinions of Professor Greenberg to which I have referred, namely that at the time of the attack the accused was able to function in a focused and rational way, and in a way which was at odds with someone who was suffering from a schizophrenic condition. Whether that view is reached is, of course, a matter for the jury. However, in assessing the probative value, I must proceed on the basis that the evidence will be accepted by the jury. [8] In my view, the evidence it is certainly capable of bearing upon the assessment of the sole fact in issue in that way. 9. In these circumstances, I am unable to accept the submission that the probative value is low, and that the Crown is, in effect, in no different position than it would be if it was limited to the evidence which has already been tendered, and which establishes no more than the fact that the accused accessed the footage. What the accused actually viewed is significantly probative of his state of mind, far more so than a mere description of its title. That is particularly so, given the statements made by the accused about the purpose for which he viewed it. 10. With those matters in mind, it is also my view that the probative value of the evidence is not outweighed by the danger of unfair prejudice to the accused. It will be evident from what I have already said that the purpose for which the Crown seeks to lead this evidence is to demonstrate that the accused's viewing of it is inconsistent with the proposition that he was suffering from a psychotic episode 24 hours later. There is little or no danger of unfair prejudice, particularly in circumstances where the jury will be told of the purpose for which the Crown is leading this evidence, and will be directed that they must not engage in any irrational, emotional or prejudicial response to it. It is to be expected that when that direction is given, the jury will act in accordance with it. [9] 11. For all of those reasons the evidence will be admitted. ********** Endnotes 1. Exh A, p.491. 2. Exh A, p.544. 3. Exh R, p.2. 4. At p.15. 5. Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37 at [92]; Festa v R [2001] 208 CLR 593; [2001] HCA 72 at [22]; Standen v R [2015] NSWCCA 211; (2015) 253 A Crim R 301 at [333]. 6. Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470 at [140]. 7. Exh S. 8. IMM v R (2016) 257 CLR 300; [2016] HCA 14. 9. R v Glennon (1992) 173 CLR 592; [1992] HCA 16; (1992) 60 A Crim R 18 at 603-604 per Brennan J (as his Honour then was); per Mason CJ and Toohey J at 603; Gilbert v R (2000) 201 CLR 414; [2000] HCA 15 at [31] per McHugh J. 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: 10 May 2019