R v Khan (No 8) [2019] NSWSC 351

Supreme Court New South Wales

Medium Neutral Citation: R v Khan (No 8) [2019] NSWSC 351 Hearing dates: 2 April 2019 Date of orders: 02 April 2019 Decision date: 02 April 2019 Jurisdiction: Common Law Before: Bellew J Decision: Evidence excluded Catchwords: CRIMINAL LAW – Evidence – Accused charged with committing a terrorist act - Where Crown sought to tender a news article found on accused's computer documenting sentence proceedings in the United States of a person found guilty of committing a terrorist act – Probative value low – Danger of unfair prejudice substantial – Evidence excluded Legislation Cited: Evidence Act 1995 (NSW) 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 Crown has sought to tender an article which was located on the accused's computer headed "Tsarnaev Defense Focuses On Father's Declining Mental State". The article was published on the internet by "BuzzFeed News" on or about 6 May 2015. It reports, and updates, sentence proceedings in the United States of Dzhokhar Tsarnaev, who was one of the persons convicted of the so-called Boston Marathon bombing in 2013. 2. The article refers, amongst other things, to evidence given in the sentence proceedings by survivors of the bombing, as well as evidence given by family members of those who were killed. I infer, having read the article, that this evidence was led by the prosecution in that case in support of a submission that the death penalty should be imposed upon the offender. Evidence of that nature, led in support of such a submission, obviously reflects a procedure which forms no part of the criminal justice system which operates in this country. 3. As is often the case with on-line publications of this nature, members of the public, some of whom may be journalists, have commented on the article, and the proceedings, over a period of time. "Tweets", along with other intrusions from people communicating via social media platforms, appear at the conclusion of the article. 4. Mr Anderson, on behalf of the accused, has objected to the admission of the evidence on two bases. He has firstly relied on s 135(b) of the Evidence Act 1995 (NSW) ("the Act") and has submitted the probative value of the evidence is substantially outweighed by the danger that it might be misleading and confusing. He has also submitted that the evidence should be excluded pursuant to s 137 of the Act on the basis that its probative value is outweighed by the danger of unfair prejudice to the accused. He has submitted, amongst other things, that the potential for the article to be misleading and confusing arises from the fact that it reports on sentence proceedings which are conducted in a way substantially different to the manner in which such proceedings are conducted in this country. He has also submitted that there is a clear danger of unfair prejudice as a consequence of the fact that the article refers to the death penalty, and incorporates the extraneous and irrelevant comments of other persons. 5. The Crown submitted that in circumstances where this was a "bookmarked" item on the accused's computer, it was indicative of the accused's idolisation of extremists. It was further submitted, bearing in mind that the sole issue in this trial concerns the accused's mental state at the time of the alleged offending, that the fact that it was bookmarked was consistent with the accused adopting a planned approach to the offending, and inconsistent with any form of disordered thought. It was further submitted that the article reflected the accused having approached the commission of the alleged offence in a methodical, planned and intelligent way. The Crown submitted that in these circumstances the probative value of the evidence was significant in light of the issue for the jury's consideration, that no confusion would result from its tender, and that there was no danger of unfair prejudice. 6. In my view, the extent to which the article may affect the assessment of the one fact in issue in this case is low for a variety of reasons, not the least of which is that it includes references to proceedings which are entirely irrelevant, and which have little bearing on the jury's task. Moreover, and leaving aside the issue of the article being misleading and confusing, there is a clear danger of unfair prejudice arising from a number of factors, not the least of which are the numerous references to submissions being made by the prosecution in that case for the imposition of the death penalty. There are also, as I have observed, entirely irrelevant comments, from other persons which have no probative value whatsoever. 7. For those reasons I reject the Crown's tender of the article.