R v WE (No.4) [2019] NSWSC 893

Supreme Court New South Wales

Medium Neutral Citation: R v WE (No.4) [2019] NSWSC 893 Hearing dates: 15 July 2019 Date of orders: 15 July 2019 Decision date: 15 July 2019 Jurisdiction: Common Law Before: Bellew J Decision: See [8], [14], [18] Catchwords: CRIMINAL LAW – Evidence – Whether evidence relevant – No point of principle Cases Cited: Elomar & Ors v R [2014] NSWCCA 303; (2014) 316 ALR 206 R v WE and HG (No 1) [2019] NSWSC 573 Category: Procedural and other rulings Parties: Regina – Crown WE – Accused Representation: Counsel: P McGuire SC and B Anniwell – Crown J Trevallion and N Bennett – Accused

Solicitors: Director of Public Prosecutions (Cth) – Crown Alexanders Lawyers – Accused File Number(s): 2016/305103 Publication restriction: Nil

Judgment – EX TEMPORE (REVISED) 1. The accused in these proceedings is charged with an offence that between about 6 October 2016 and 12 October 2016 at Sydney, in the State of New South Wales, he jointly committed an offence with a co-accused (to whom I shall refer to as "HG"), namely the commission of acts in preparation for, or planning, a terrorist act or acts. 2. Objection has been taken by counsel for the accused to three discrete pieces of evidence which the Crown seeks to lead in its case. I will deal with each of them individually. 3. The first objection which has been taken is to a photograph which was found on a phone used by HG. The photograph depicts a pig standing next to, and looking inside, a police vehicle with the caption: "Mum?" That image forms, as I understand it, part of a body of material which was in the possession of HG and which is to be tendered by the Crown, some of which was found on that phone, and some of which was found on a computer. The Crown does not propose to tender the entirety of the material found on those devices, but only a selection of it. No objection has been taken by counsel for the accused to the tender of the remainder of the material. 4. Counsel for the accused submitted that the evidence was not relevant. He submitted, in particular, that there was no evidence that the image had been accessed or viewed by the accused, or by any person in his presence, and that in these circumstances, the evidence was not relevant to the accused's state of mind, or his intention. 5. The Crown emphasised that the allegation against the accused was that he committed the offence jointly with HG. The Crown submitted that one of the issues in the trial was that the two accused agreed to commit the offence, and committed acts in furtherance of that agreement with the requisite intention. It was the Crown's submission that this evidence went to those issues. 6. In Elomar & Ors v R [1] the Court of Criminal Appeal considered the question of the admissibility, against a number of persons charged with conspiracy to commit acts in preparation for a terrorist act, of statements of an extremist nature which had been made in the presence of one of the accused by a person from whom all of the accused had obtained spiritual guidance. In concluding that the trial judge had correctly admitted the evidence, the Court observed [2] that the evidence was tendered to establish that the person from whom the accused sought and obtained such guidance had held and expressed extremist views, the inference being that those views influenced, or were shared by, the accused. In the context of an objection taken pursuant to s 137 of the Evidence Act 1995 (NSW) ("the Act"), the Court concluded that admission of the evidence did not give rise to any degree of unfair prejudice. 7. In the same case, the Court considered the admissibility of extremist material which had been found on devices in the possession of one or more of the accused. The Court observed [3] that there was evidence that material of that kind was in the possession of all of the accused. The Court concluded that this was indicative of a common interest in the subject matter of the material, and that it was relevant to the existence of the nature and scope of the conspiracy which was alleged. 8. Consistent with those observations, the evidence which is now sought to be led by the Crown is clearly relevant in my view. Notwithstanding the fact that this accused is not charged with conspiracy, the Crown in this case must nevertheless establish (inter alia) that he and HG agreed to commit the offence. Accordingly, the Crown must establish that each of the accused and HG had the relevant intention to do so. In my view the evidence is clearly relevant to the issues articulated by the Crown. No issue was raised on behalf of the accused pursuant to s 137 of the Act. Accordingly, the evidence will be admitted. 9. The second piece of evidence to which objection is taken concerns statements made by HG at the time of his arrest. A number of statements made by HG at that time were excluded for reasons given in an earlier judgment. [4] However, one statement made by HG which was admitted in an earlier trial was made at or about the time of his arrest in the following terms: "Look at all youse pigs. Youse are all pigs, youse are cowards. You will all die in the hell fire." 1. Counsel for the accused submitted that at the time that this statement was made it could not have been part of any agreement between the two accused because by that time, both accused had been arrested. It was submitted that the statement proved nothing about HG's state of mind and that, in those circumstances, it was irrelevant. 2. The Crown again emphasised that the case against the present accused was one of joint responsibility, in circumstances where the Crown was required to prove HG's state of mind, and the existence of an agreement between HG and the accused. It was the Crown's submission that the evidence was relevant on those bases. 3. In my view, for the reasons advanced in respect of the first matter, I am satisfied that this evidence is relevant to the state of mind of HG, his ideology, and the agreement which the Crown alleges. It is of some significance that the statement was made by HG on the day on which two knives were purchased, the purchase of those knives being an essential fact in the Crown case. 4. The proposition that the statement is not relevant because it was made post-arrest is somewhat artificial. If that were the case, then it would follow (for example) that admissions made in a record of interview by an accused following his or her arrest were somehow irrelevant and inadmissible, simply by reason of the fact that they were made post-arrest. 5. For these reasons that evidence will be admitted. 6. The third piece of evidence concerns the failure (or perhaps the refusal) on the part of the accused to stand for the national anthem at one or more school assemblies. The Crown seeks to lead this evidence as evidence of his extremist ideology. The Crown also seeks to lead evidence of similar conduct on the part of HG. In addition, the Crown proposes to lead evidence of statements made by the accused to the effect that he did not stand for the national anthem, firstly because HG did not do so and, secondly, because he (the accused) "only stands for Allah". 7. Counsel for the accused submitted that this evidence was irrelevant in the absence of any evidence explaining why it was that HG refused to stand. In the alternative, counsel submitted that if the evidence was found to be relevant, I should exclude it pursuant to s 137 of the Act. 8. The Crown submitted that the evidence was clearly relevant to the accused's ideology and that it was artificial, in effect, to separate the two explanations given by the accused for his conduct. 9. Whilst it is correct to say that there is no evidence of an express explanation advanced by HG for not standing for the national anthem, there is, on the whole of the evidence, a clear and unequivocal inference as to why that was the case. In my view, the fact that the accused did not do so, and his reasons for not doing so, are matters which are clearly relevant to the ideology of both the accused and HG. There is no danger of unfair prejudice to the accused as a consequence of the admission of that evidence. In particular, there is absolutely nothing to suggest that the evidence, if admitted, will be misused by the jury in any way. Accordingly, for those reasons, the evidence will be admitted.