R v WE (No.10) [2020] NSWSC 41

Supreme Court New South Wales

Medium Neutral Citation: R v WE (No.10) [2020] NSWSC 41 Hearing dates: 3, 4 and 5 February 2020 Date of orders: 11 February 2020 Decision date: 11 February 2020 Jurisdiction: Common Law Before: Bellew J Decision: Evidence excluded Catchwords: CRIMINAL LAW – Evidence – Accused charged with doing acts in preparation for a terrorist act or acts – Evidence of religious publications found in his possession following the alleged commission of the offence – Whether evidence relevant – Whether the probative value of the evidence outweighed by the danger of unfair prejudice – Whether expert evidence in relation to the publications admissible - Evidence excluded Legislation Cited: Criminal Code 1995 (Cth) Evidence Act 1995 (NSW) Cases Cited: Nye v NSW [2002] NSWSC 1270 R v Privett [2001] NSWCCA 518 R v Vinayagamoorthy and ors (2008) 238 FLR 117; [2008] VSC 599 Zaknic Pty v Svelte Corporation Pty Limited (1995) 61 FCR 171 Category: Procedural and other rulings Parties: Regina – Crown WE – Accused Representation: Counsel: P McGuire SC and B Anniwell – Crown M Finnane QC – Accused

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

Judgment

INTRODUCTION 1. WE (the accused) has pleaded not guilty to an indictment alleging an offence contrary to s 101.6(1) of the Criminal Code 1995 (Cth) in the following terms: Between about 6 October 2016 and 12 October 2016 at Sydney in the State of New South Wales did jointly commit an offence with (HG), namely acts in preparation for, or planning, a terrorist act (or act). 1. The accused's trial is listed to commence on 12 February 2020. 2. By notice of motion filed on 11 October 2019, the accused sought a number of orders excluding parts of the evidence upon which the Crown proposes to rely. The notice of motion originally contained 20 prayers for relief. A number of them were abandoned prior to the commencement of the hearing of a voir dire. A number of others were abandoned at the conclusion of the evidence. 3. The end result is that only one issue remains, which is articulated in paragraph 18 of the motion in the following terms: An order that the report of Dr Rodger Shanahan regarding books seized (sic) 17 April 2019 from Frank Baxter Juvenile Justice Centre be declared inadmissible. 1. The entirety of the evidentiary material relating to that issue is contained in Exh A which was tendered by the Crown by consent. I have referred to aspects of that evidence below.