R v Droudis (No. 13)

1. [1]

   JOHNSON J: The Accused, Amirah Droudis, is to stand trial upon a charge that, on 21 April 2013, at Werrington, she committed murder. The trial is to proceed by Judge alone as both the Accused and the Crown agreed to the trial proceeding without a jury: s.132(2) Criminal Procedure Act 1986.

2. [2]

   In advance of the trial, issues have arisen for determination concerning the admissibility of evidence which the Crown proposes to tender.

The Crown Case and the Defence Response

1. [3]

   Before proceeding to address the admissibility question, it is appropriate to say something about the Crown allegation against the Accused and the broad defence response to it.

2. [4]

   The deceased was the former wife of Man Haron Monis (“Monis”). She was 30 years old at the time of her death. She and Monis married in 2003 and there are two young sons of their marriage. I will not identify the deceased as to do so is likely to identify the two children: s.15A Children (Criminal Proceedings) Act 1987.

3. [5]

   At the time of the killing on 21 April 2013, Monis had been in a relationship with the Accused for some considerable time.

4. [6]

   Monis died on 16 December 2014.

5. [7]

   It is the Crown case that the killing of the deceased occurred at the instigation and behest of Monis, who had been in dispute with the deceased over custody of their sons. The Crown alleges that Monis took very obvious steps to give himself a solid (but heavily contrived) alibi for the time of the killing. The Crown alleges that it was the Accused who carried out the killing at the behest of Monis.

6. [8]

   The Crown alleges that the Accused and Monis were in a close relationship at the time of the killing, and that the crime was motivated by a desire on the part of the Accused and Monis to get rid of the deceased so that they could live, as a single-family unit, with Monis’ two sons and the Accused’s daughter from another relationship.

7. [9]

   The defence accepts that the evidence establishes that Monis arranged for someone to kill the deceased. The defence accepts that the deceased was murdered. Senior counsel for the Accused made clear that these matters were accepted by reference to the strength of the Crown evidence on these aspects, and not by way of any knowledge on the part of the Accused. The primary issue of fact in the trial is whether the person who killed the deceased was the Accused.

8. [10]

   The Crown case is essentially a circumstantial one. The murder of the deceased occurred in a stairway in an apartment block at Werrington. Monis had an apartment in this building. The deceased had attended these premises on the afternoon of 21 April 2013 to pick up her two children from Monis after an access visit.

9. [11]

   There is no issue that the assailant stabbed the deceased 18 times and then doused her with petrol before setting her alight on the stairway with the aid of matches.

10. [12]

    The Crown proposes to lead evidence from occupants of the apartment block, including a neighbour who heard the attack upon the deceased and made certain observations to the effect that the assailant was a woman wearing a garment in the nature of a “hijab”, where the upper body was covered except for the face and hands (Crown Case Statement, Exhibit PTA, paragraphs 39-40).

11. [13]

    The Accused has given notice of alibi under s.150 Criminal Procedure Act 1986. That notice states that the Accused was at premises at Belmore at the time of the killing in Werrington.

12. [14]

    The principal issue in the trial will be whether the Crown can prove beyond reasonable doubt that it was the Accused who attacked and killed the deceased in the stairway of the Werrington apartment block on the afternoon of Sunday, 21 April 2013.

The Tendered Evidence

1. [15]

   The Crown seeks to tender evidence of aspects of the relationship between the Accused and Monis, and their joint activities in the period 2007 to 2014. Also tendered is evidence of events which are said to have occurred arising from the relationship between Monis and the Accused (on the one hand) and the deceased, the former wife of Monis (on the other hand).

2. [16]

   The Crown tenders this evidence for different but overlapping purposes:

Pretrial Arguments and Rulings

1. [17]

   On 8, 9 and 10 August 2016, I heard submissions on the evidentiary issues calling for a ruling with respect to admissibility.

2. [18]

   On 12 August 2016, I announced my ruling in the following way (PT135.18-136.6):

3. [19]

   This judgment constitutes my reasons for this ruling.

The Crown Case Against the Accused

1. [20]

   It is appropriate at this point to set out, in more detail, the way in which the Crown puts its case against the Accused in areas which are relevant to these admissibility issues. The Crown Case Statement will be utilised for this purpose.

2. [21]

   The Accused was born Anastasia Droudis in 1979 of Greek Orthodox background. The Crown says that it was her relationship with Monis that led to her conversion to Islam. In July 2008, she changed her name from Anastasia to Amirah (Exhibit PTA, paragraph 64).

3. [22]

   The Crown Case Statement asserts the following with respect to the relationship between the Accused and Monis (Exhibit PTA, paragraphs 8-13, footnotes excluded):

4. [23]

   The Crown Case Statement expanded upon the alleged activities of the Accused said to have been carried out at the behest of Monis (Exhibit PTA, paragraph 66-70, footnotes excluded):

5. [24]

   With respect to contact made with relatives of deceased Australian soldiers, the Crown says (Exhibit PTA, paragraph 74):

6. [25]

   The Crown Case Statement asserted with respect to the use of fire (Exhibit PTA, paragraphs 71 and 73, footnotes excluded):

7. [26]

   Some reference should be made to the Crown’s history of the custody dispute between the deceased and Monis. This material is drawn from the Crown Case Statement.

8. [27]

   The deceased had ended her relationship with Monis in June 2011. In August 2011, Monis commenced proceedings in the Federal Magistrate’s Court (as it then was) seeking full custody of the two children. On 10 May 2012, a family consultant’s report (ordered by the Court) recommended that the deceased have parental responsibility, with Monis to have visitation rights (Exhibit PTA, paragraph 75-82).

9. [28]

   On 5 July 2012, Monis sent a letter to the presiding Federal Magistrate complaining about the custody proceedings (Exhibit PTD). Monis stated that he wanted to withdraw his case from the Federal Magistrate’s Court and that he had filed his complaint “in God’s court”. He said that “God is the decision maker, not you”. Monis continued “… if you order that the children must live with their mother, but if God decides that the children live with someone else, the children will not live with their mother” (Exhibit PTA, paragraph 84).

10. [29]

    Thereafter, on 24 August 2012, the Federal Magistrate’s Court granted full custody to the deceased with Monis given visitation access every second Sunday between 10.00 am and 4.00 pm. In October 2012, Monis provided the Werrington address as the location for exchange of the children on access visits (Exhibit PTA, paragraph 88).

11. [30]

    The Crown Case Statement states with respect to access visits (Exhibit PTA, paragraphs 91-92, footnotes excluded):

12. [31]

    To assist an understanding of references to Monis’ association with the Rebels Outlaw Motorcycle Gang (“OMCG”), I note this part of the Crown Case Statement (Exhibit PTA, paragraphs 101-105, footnotes excluded):

Several Bases of Crown Tender

1. [32]

   As mentioned above (at [16]), the Crown sought to tender material upon a number of overlapping bases. The material was contained in two volumes (Exhibits PTB and PTC) and several accompanying disks.

2. [33]

   The material was summarised chronologically in the Crown’s Tendency Notice dated 28 July 2016 (Exhibit PTB). That summary of the material was utilised by the parties for the purpose of describing material tendered by the Crown on all bases (including the tendency basis).

3. [34]

   The Crown material fell within the following broad categories (with areas of defence objection on non-tendency bases being indicated):

The Crown’s Tendency Notice

1. [35]

   Based upon the matters summarised in the preceding paragraph, the Crown’s Tendency Notice dated 28 July 2016 (part Exhibit PTB) asserted a tendency on the part of the Accused over a lengthy period of time before the murder on 21 April 2013, and also after that murder. The Crown alleges that:

2. [36]

   The Crown contends that the tendency evidence sought to be adduced bears upon a fact in issue in the trial, namely, the identity of the person that murdered the deceased.

3. [37]

   It is the Crown case that the murder of the deceased by the assailant, and what is said to be the ritualistic manner in which it occurred, was masterminded by Monis. The ultimate object of the murder was for Monis to obtain custody of his two sons. The Crown alleges that Monis viewed the actions of the female assailant in stabbing the deceased, and then setting her on fire, as being a punishment from God.

4. [38]

   The Crown contends that the fact that the Accused had the tendencies referred to above, either alone or having regard to other evidence in the Crown case, was highly probative evidence in the Crown case that it was the Accused who, at the behest of Monis, stabbed to death and then set fire to the deceased.

Relevant Provisions of Evidence Act 1995

1. [39]

   It is appropriate to set out the provisions of the Evidence Act 1995 to be considered and applied in this judgment. Sections 55 and 56 Evidence Act 1995 state:

2. [40]

   Section 97 Evidence Act 1995 provides:

3. [41]

   Section 101 of the Act states:

4. [42]

   Sections 135 and 137 Evidence At 1995 state:

Principles to be Applies on Admissibility Issues

1. [43]

   The Crown, as the tendering party, bears the onus of establishing, on the balance of probabilities, any facts necessary for deciding that the evidence should be admitted: s.142 Evidence Act 1995.

2. [44]

   Material tendered by the Crown for non-tendency purposes is objected to by the defence on the grounds of relevance (ss.55 and 56 Evidence Act 1995) and, if held to be relevant, upon the ground that the Court should refuse to admit the evidence as its probative value is outweighed by the danger of unfair prejudice to the Accused (s.137 Evidence Act 1995).

3. [45]

   It is submitted for the Accused that the same material (relied upon, as well, for tendency purposes) should not be admitted on that basis, as the Crown has not demonstrated that the material has substantial probative value (s.97(1)(b) Evidence Act 1995) and, even if it had, the Crown has not established that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the Accused (s.101(2) Evidence Act 1995).

4. [46]

   Even if the tendered evidence was held to be admissible on these tendency and non-tendency bases, it was submitted for the Accused that all of it should be excluded under s.135(c) of the Act.

5. [47]

   Consideration of relevance requires identification of the fact or facts in issue in the trial. Here the principal and critical fact in issue is whether it was the Accused who fatally attacked the deceased on 21 April 2013. The Crown contends that what is said to be the close and multi-facetted relationship between the Accused with Monis over a number of years is relevant to that critical fact in issue.

6. [48]

   The test of relevance is a relatively undemanding one. The enquiry for the purpose of s.55 concerns how the evidence might affect findings of fact. The possible use to which the evidence might be put is to be taken at its highest: IMM v The Queen [2016] HCA 14; 90 ALJR 529 at 538 [43]-[44]. No assessment of the credibility or reliability of the evidence is required: IMM v The Queen at 537 [39].

7. [49]

   Evidence which is relevant according to s.55 and admissible under s.56 is, by definition, probative. But neither s.55 nor s.56 requires that evidence be probative to a particular degree for it to be admissible. Evidence that is of only some (even slight) probative value will be prima facie admissible: IMM v The Queen at 537-538 [40].

8. [50]

   In considering a relevance objection to a piece or pieces of evidence which are said to form part of a circumstantial case, it is appropriate to bear in mind what was said by the Court of Criminal Appeal (Bathurst CJ, Hoeben CJ at CL and Simpson J) in Elomar v R [2014] NSWCCA 303; 316 ALR 206 at 258 [240]:

9. [51]

   Evidence may be relevant to the state of mind of an accused person, but not as tendency evidence. In Elomar v R, the Court of Criminal Appeal said at 280 [369]:

10. [52]

    Section 137 is expressed in terms of an evaluative judgment mandating exclusion: IMM v The Queen at 534 [15]. Section 137 requires the “probative value” of the evidence to be weighed against the danger of unfair prejudice to the Accused. This requires that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue: IMM v The Queen at 538 [47].

11. [53]

    The danger of “unfair prejudice” in s.137 Evidence Act 1995 directs attention to the risk that evidence may be misused in some unfair way by the tribunal of fact (usually a jury) so that the jury may not comply with judicial directions as to its use: Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at 325 [91]; R v Clark [2001] NSWCCA 494; 123 A Crim R 506 at 582-584 [163]-[165]. There must be a risk that the evidence will damage the defence case in some unacceptable way, such as provoking some irrational, emotional or illogical response or by giving the evidence more weight than it truly deserves: BJS v R [2013] NSWCCA 123; 231 A Crim R 537 at 549-550 [51].

12. [54]

    The existence of competing inferences (or alternative interpretations), available to be drawn from the proposed prosecution evidence, plays no part in the assessment of probative value for the purpose of s.137: R v Burton [2013] NSWCCA 335; 237 A Crim R 238 at 280 [196].

13. [55]

    There is an additional feature in this trial which calls for attention. This is a Judge-alone trial. There is no jury. This aspect will be addressed a little later in the judgment by reference to ss.101 and 137 of the Act (see [78]ff).

14. [56]

    Rulings with respect to evidence tendered for non-tendency purposes will require application of these principles concerning relevance and s.137 of the Act.

15. [57]

    A submission was made for the Accused that a further basis for exclusion of the tendered evidence arose under s.135(c) of the Act. It was submitted that, even if the evidence was otherwise admissible, it should be excluded as its probative value was substantially outweighed by the danger that the evidence might cause or result in undue waste of time. It was submitted that this provision operated in the same way in a Judge-alone trial: R v Gittany (No. 2) [2013] NSWSC 1599 at [23].

16. [58]

    Section 135 is based upon an assumption that the evidence is otherwise admissible. It confers a power to refuse to admit such evidence if the particular statutory opinion is formed. A discretionary process is involved, with the formation of the relevant opinion requiring a balancing exercise. The power to reject evidence will only be engaged if the probative value of the evidence is “substantially outweighed” by a “danger” of the kind identified in s.135(a), (b) or (c): Dyldam Developments Pty Limited v Jones [2008] NSWCA 56 at [78].

17. [59]

    In Dyldam Developments Pty Limited v Jones, Basten JA observed at [93] that the apparent purpose of s.135(c) was to allow a trial Judge to avoid an inappropriate expansion of the trial caused by the parties tendering, and then seeking to meet, evidence of slight or peripheral relevance to the facts in issue. His Honour observed (at [93]) that “once it is accepted that the probative value of the proffered evidence is significant or substantial, there may be limited scope for exclusion on the basis of a danger of ‘undue waste of time’”.

18. [60]

    I am satisfied that s.135(c) has equal application to a Judge-alone trial as to a jury trial, although it may be appropriate to take into account, as well, the likely slower pace which may apply to the adducing of evidence before a jury.

19. [61]

    The Crown tenders the same body of evidence for tendency purposes as well. If evidence is admissible for a non-tendency purpose, it cannot be used for tendency purposes unless the requirements of ss.97 and 101 are met: s.95 Evidence Act 1995.

20. [62]

    There is no issue in this case concerning compliance by the Crown with the reasonable notice requirement. Accordingly, s.97(1)(a) need not be further addressed.

21. [63]

    Tendency evidence is a species of circumstantial evidence: Elomar v R at 277 [356]. Elsewhere in Elomar v R, it was said at 278 [359]:

22. [64]

    In Elomar v R, the Court of Criminal Appeal said at 260 [253]:

23. [65]

    The Court of Criminal Appeal continued in Elomar v R at 278 [360]:

24. [66]

    In considering the probative value of evidence under s.97(1)(b), an assumption of the jury’s acceptance of the evidence must be made. No question of the credibility or reliability of the evidence can arise: IMM v The Queen at 539 [52].

25. [67]

    As it happens, nearly all of the evidence relied upon by the Crown (which is the subject of this judgment) is in video, audio or documentary form (see [34] above). It does not appear that there would be any issue of credibility or reliability about that material in any event.

26. [68]

    With respect to the concept of “significant probative value”, the word “significant” means important or of consequence - it requires more than mere relevance: R v Lockyer (1996) 89 A Crim R 457; Hughes v R [2015] NSWCCA 330 at [163]. The evidence must be influential in the context of fact finding: IMM v The Queen at 538 [46].

27. [69]

    As the terms of s.97(1)(b) make clear, an assessment of whether the evidence has “significant probative value” is not confined to the evidence itself, but is to be made having regard to all the evidence sought to be adduced by the tendering party (the Crown): BC v R [2015] NSWCCA 327 at [82]-[83]. What must be assessed is the role that the evidence, if accepted, would play in the resolution of the disputed fact - its capacity to contribute to that resolution: DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758 at 774 [72]; BC v R at [83].

28. [70]

    In IMM v The Queen, the High Court said at 538 [45]:

29. [71]

    Application of the “significant probative value” test calls for a focus on the fact in issue, the probability of the existence of which the evidence is said to cast light. The fact in issue here is whether it was the Accused who fatally attacked the deceased on 21 April 2013.

30. [72]

    I note that in Hughes v R at [182], the Court of Criminal Appeal said that an assessment of significant probative value involved consideration as to whether there is a real possibility of an alternate explanation consistent with innocence.

31. [73]

    It is appropriate to consider the level of generality of the stated tendency for the purpose of assessing significant probative value: R v Ford [2009] NSWCCA 306; 201 A Crim R 451 at 468 [53]; Sokolowskyj v R [2014] NSWCCA 55; 239 A Crim R 528 at 537-538 [40].

32. [74]

    The evidence need not demonstrate a tendency to commit a particular crime. It is not necessary for the acts relied upon to be rare or unusual: Aravena v R [2015] NSWCCA 288 at [87]. There is no need for there to be a striking pattern of similarity between the incidents: R v Ford at 485 [125]. However, qualitative differences in conduct are relevant: Sokolowskyj v R at 538 [41]-[43]; BC v R at [78]-[81].

33. [75]

    The second step, being a s.101(2) assessment, calls for consideration of probative value and prejudicial effect to determine whether the probative value of the evidence substantially outweighs any prejudicial effect the evidence may have on the Accused.

34. [76]

    Reference was made at [52]-[53] above to principles applicable to “unfair prejudice” in s.137. In DAO v R [2011] NSWCCA 63; 81 NSWLR 568 at 597 [150], Simpson J observed that the term “prejudicial effect” in s.101(2) is a reference to evidence being used against an accused person for a purpose other than that for which it is admitted. In R v Ford, at 469 [58], Campbell JA addressed the topic of prejudice under s.101(2) of the Act in the following way:

35. [77]

    The statutory formula in s.101(2) must be applied to the case at hand, but the fact that the trial is proceeding before a Judge without a jury is a relevant factor also, for reasons to which I will now turn.

Trial by Judge Alone - Assessment of Prejudicial Effect and Probative Value

1. [78]

   As has been noted, determination of the admissibility issues in this judgment requires attention to be given (concerning tendency evidence) to s.101(2) Evidence Act 1995 (whether the probative value of the tendency evidence substantially outweighs any prejudicial effect) and (on non-tendency bases) to s.137 Evidence Act 1995, where evidence which the Court finds is otherwise admissible is subject to an argument that it ought be excluded because its probative value is outweighed by the danger of unfair prejudice to the Accused.

2. [79]

   This trial is proceeding as a Judge-alone trial. In reaching a verdict, the Court must comply with the statutory obligations contained in s.133 Criminal Procedure Act 1986. There is a duty to give reasons with respect to findings of fact and principles of law, with a duty to take into account warnings required by statute or common law: Filippou v The Queen [2015] HCA 29; 256 CLR 47 at 52 [6], 66-67 [52].

3. [80]

   There is, of course, a fundamental difference in the nature of the trial. There is no jury.

4. [81]

   A trial Judge is required to give reasons as well for interlocutory decisions, including a decision such as the present one concerning admissibility of evidence.

5. [82]

   It is clear that provisions such as ss.97, 101, 135 and 137 Evidence Act 1995 apply as much to trial by Judge alone as to trial by jury.

6. [83]

   It was acknowledged on behalf of the Accused that there may be a difference between an assessment of the risk of prejudice or prejudicial effect in a trial by Judge alone, as against a trial by jury. The risk of evidence being used for an impermissible purpose, or directions not being followed or being misunderstood, are significantly decreased.

7. [84]

   The Accused submitted, however, that there was another view - the approach to the admissibility of evidence should not be different, simply because of the nature of the identity of the fact finder.

8. [85]

   Reference was made to a number of single-Judge decisions in this Court and in other jurisdictions where comment had been made on the application of exclusionary provisions in a Judge-alone trial: R v Gencay [2002] ACTSC 114 at [19]; Arthurs v State of Western Australia [2007] WASC 182 at [89]; R v Fairbairn [2011] ACTSC 78; 212 A Crim R 32 at 49 [91]-[92]; R v Ravindran (No. 2) [2013] NSWSC 1056 at [6]; R v Gittany (No. 2) at [22].

9. [86]

   It was submitted, as well, for the Accused that there may be procedural prejudice in the sense of an unfair forensic difficulty caused by the evidence. I will return to this argument when referring to the defence submissions.

10. [87]

    The differences between trial by jury and trial by Judge alone have been recognised by the law in the area of contempt. The courts now recognise that it would be wrong to hold that a publication constitutes a contempt because it may influence a judicial officer. This is because judicial officers, by their training and experience, are expected to put aside prejudicial remarks and material: Attorney General for NSW v John Fairfax & Sons Limited and Bacon (1985) 6 NSWLR 695 at 709 (“John Fairfax and Bacon”) (per McHugh JA). It has been said that Judges are more capable than jurors of putting aside prejudicial matter, including public prejudice, and that “objectivity and independence are the qualities which judges are expected to bring to judicial determination”: Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation [1982] HCA 31; 152 CLR 25 at 102 (“BLF Case”) (per Mason J).

11. [88]

    There is force in the view that similar reasoning applies to the assessment to the risk of prejudice for the purpose of provisions such as ss.101 and 137 Evidence Act 1995. This is not to say that these provisions have no real application when a trial is by Judge alone. Rather, it is to acknowledge that trial Judges have the training, experience and qualities referred to by McHugh JA in John Fairfax and Bacon and by Mason J in the BLF Case.

12. [89]

    From time to time, an order for trial by Judge alone may be made because of the existence of a substantial volume of prejudicial evidence. Implicit in such an order is the acceptance that a Judge sitting alone will be equipped to determine the trial on the merits, keeping the prejudicial material in proper perspective: R v Simmons; R v Moore (No. 4) [2015] NSWSC 259 at [114]-[117]; Redman v R [2015] NSWCCA 110 at [19].

13. [90]

    It is the case, of course, that Judges (sitting without a jury) or Magistrates determining criminal proceedings may exclude evidence on one basis or another during the course of the trial. Thereafter, the Judge or Magistrate will reach a verdict by reference to the admitted evidence. Although the judicial officer has seen or heard the excluded evidence, the hearing proceeds with the verdict to be reached by reference only to the evidence admitted in the trial. This is a practical illustration of the training, experience and qualities of judicial officers in operation, with a verdict to be reached by reference to the admitted evidence only, although the Court has become aware of the excluded material.

14. [91]

    Further, Judges are required to give reasons for an interlocutory decision admitting evidence. In addition, the trial Judge (at a Judge-alone trial) is required to make findings of fact and to give directions of law as to use of evidence, and set out any necessary warnings, as part of reasons for reaching the ultimate verdict.

15. [92]

    The obligation to give reasons is, of course, a fundamental difference between criminal trials by jury and trials by Judge alone. This obligation serves a number of purposes, which include a practical demonstration as to how the Court has guarded against “prejudicial effect” (s.101) or “unfair prejudice” (s.137) which might have a stronger foundation at a jury trial. As Martin CJ observed in Arthurs v State of Western Australia at [89], the duty of the trial Judge to give reasons will allow the parties, the community and (where necessary) an appeal court to evaluate whether emotion may have influenced the Court’s decision.

16. [93]

    The importance of the duty to give reasons, as part of the judicial function, was referred to in Director of Public Prosecutions (NSW) v Wililo [2012] NSWSC 713; 222 A Crim R 106 at 123-124 [62]-[64]:

17. [94]

    Of course, the adequacy and correctness of reasons remain to be considered in the particular case. The point in mentioning these statements here is to emphasise the important differences between trial by jury and trial by Judge alone flowing from the judicial duty to give reasons.

18. [95]

    I approach this judgment upon the basis that the provisions in ss.101(2) and 137 have application and operation at a Judge-alone trial, but that the Court should keep in mind, in considering the issue of prejudicial effect, the important differences between the two forms of trial, and the checks and balances which operate at a Judge-alone trial, in particular by way of the duty to give reasons.

Submissions of the Parties

1. [96]

   The Court was provided with detailed written submissions which were supplemented by oral submissions. It is not necessary to repeat in detail those submissions in this judgment. An overview of submissions will suffice.

2. [97]

   The Crown submitted that the starting point was what was said to be a very powerful (if not overwhelming) circumstantial case against Monis, which demonstrated that it was Monis who masterminded the murder of his former wife on 21 April 2013.

3. [98]

   It was submitted that, at the time of the murder, the Accused was besotted with Monis in a spiritual sense and was dominated by him. Arising from this, the Crown argued, the Accused adopted Monis’ extreme religious and political views and had an intense desire to please him.

4. [99]

   The Crown submitted that the material was admissible for several related purposes concerning motive, relationship between the Accused and Monis, the Accused’s state of mind and as tendency evidence. It was submitted that it is necessary to keep in mind the nature of the Crown’s whole circumstantial case, and not to consider the potential relevance of particular pieces of evidence in isolation.

5. [100]

   It was submitted that it was the Accused’s motive to murder the deceased to clear the way for Monis and the Accused to have a single family unit including the two children of the deceased. The Crown submitted that it was appropriate to consider the entire relationship between the Accused and Monis over a number of years to assist an understanding as to why the Accused would wish to murder the deceased in April 2013.

6. [101]

   The Crown contended that the tendered material was evidence of the Accused’s motive to commit murder, namely:

7. [102]

   The Crown submitted that the motive of the Accused arose from the whole history of her relationship with Monis over the period commencing in 2006. In order to assess the evidence of motive, it was submitted that it was essential for the Court to consider evidence of:

8. [103]

   In circumstances where the defence accepted that Monis wished his former wife dead (and with Monis and the Accused to benefit from that act), it was submitted that it was necessary to look at the entire relationship between Monis and the Accused.

9. [104]

   A similar argument was put with respect to the suggested admissibility of the evidence of the relationship between the Accused and Monis and the further step of the relationship between those two persons and the deceased. This was said to be capable of shedding light upon the Accused’s state of mind.

10. [105]

    The Crown submitted that Monis’ beliefs included that God exacted retribution through the medium of human beings and that fire was a mode of God’s punishment.

11. [106]

    It was submitted that the evidence was admissible for tendency purposes as well, given what was said to be a pattern of conduct by the Accused in complying with Monis’ wishes involving her conversion to Islam, her direct assistance to Monis in making some 11 extreme videos for his website, her assistance in contacting families of former Australian servicemen and her assistance in protests undertaken publicly by Monis.

12. [107]

    The Crown contended that the evidence reveals a tendency on the part of the Accused to do the bidding of Monis, in whatever manner he desired, including acts of illegality and acts that were socially and morally reprehensible.

13. [108]

    It was submitted that tendency evidence can be admitted in circumstances where it bears both similarities and dissimilarities, so long as it has significant probative value. Here, the Crown said it relied upon a number of disparate acts by the Accused over a long period of time to show her willingness to do the bidding of Monis, no matter what those acts might be. It was said that the common thread that ran through the Accused’s actions is that they are demonstrative of the tendencies asserted by the Crown (at [35] above). It was submitted that the length of time over which the acts were performed, and the variety of the acts which the Accused was prepared to perform at the behest of Monis, strengthened the conclusion that the Accused had the asserted tendencies.

14. [109]

    The Crown argued that other evidence in the Crown case includes overwhelming evidence that the female assailant who stabbed the deceased, and set her on fire, acted at the behest of Monis.

15. [110]

    It was submitted that this evidence had significant probative value even though there was a difference between the particular acts of the Accused in the earlier incidents and the act alleged of murdering the deceased. It was submitted that there were religious and ritualistic overtones surrounding the act of murder itself, which could be taken into account for the purpose of determinations under ss.97 and 101 Evidence Act 1995.

16. [111]

    The Crown submitted that the evidence was relevant for a number of purposes and should not be excluded under s.137, particularly as this is a Judge-alone trial. The Crown submitted that the requirements of admissibility of tendency evidence under ss.97 and 101(2) were made out here so that the evidence ought be allowed on that basis as well.

17. [112]

    The defence accepted that some parts of the evidence were admissible for particular purposes (see [34](a), (l)-(o) above). However, objection was taken to the balance of the material which the Crown sought to rely upon.

18. [113]

    With respect to the Crown reliance on motive, state of mind and relationship or context evidence, it was submitted that the evidence objected to was not relevant for the purposes of s.55 Evidence Act 1995. Even if it was capable of being relevant, it was submitted that it ought be excluded in the exercise of discretion under s.137 of the Act.

19. [114]

    It was submitted that there is no evidence that the killing was motivated by any religious or political beliefs. Rather, the circumstances indicated a far more worldly and selfish plan by Monis to rid himself of the deceased, in order to obtain custody of his children and make money from an insurance claim at the same time. It was submitted that there was no support for the Crown submission that the killing had ritualistic features nor was there evidence concerning the suggested significance of fire.

20. [115]

    It was submitted that procedural prejudice arose, for the purposes of ss.101(2) and 137, because:

21. [116]

    It was submitted that the correct approach to the question of unfair prejudice in a Judge-alone trial is to proceed on the assumption that the Judge will understand and follow directions as to the proper use of evidence.

22. [117]

    It was submitted, however, that it should not be assumed that Judges are immune from the emotional impact of evidence, and the subconscious effect of highly prejudicial evidence such as evidence of past bad character or uncharged heinous conduct. It was argued that this danger cannot be eliminated by directions or ameliorated by the requirement to give reasons. It was said that this was particularly so where the Judge is required to assess the demeanour and credibility of an accused person, or to draw inferences about the intentions, feelings or state of mind of an accused person.

23. [118]

    The Accused submitted that the nature and content of the tendered material was such that the danger of unfair prejudice was extremely high and was not substantially outweighed by its probative value.

24. [119]

    A substantial part of the defence argument related to the Crown’s tender of the material as tendency evidence. It was submitted that the Crown had a number of difficulties in this respect including the passage of time since the events sought to be relied upon, the generality of the tendency alleged by the Crown and the lack of similarity between the past conduct relied upon and the conduct involved in the murder itself. It was submitted that the Court would not admit the evidence for tendency purposes in this trial.

25. [120]

    If the Court ruled against the Accused with respect to ss.55-56, 97, 101 and 137, the Accused submitted that the evidence should be excluded under s.135(c) as its probative value was substantially outweighed by the danger that the evidence might cause or result in undue waste of time.

Determination

1. [121]

   At the outset, I stress that the conclusions hereafter expressed are reached only for the purpose of ruling on the admissibility of the tendered material. I am the tribunal of fact as well in this trial. What use is to be made of this evidence will be considered in light of all the evidence adduced in the trial, and after application of necessary directions and warnings required by law.

2. [122]

   I accept the Crown submission that there are features of the unusual relationship between Monis and the Accused which are relevant to the principal fact in issue in the trial - whether the Crown can prove to the criminal standard that the Accused killed the deceased on 21 April 2013.

3. [123]

   To merely note that the Accused and Monis met and commenced a relationship in about 2006 or 2007, and then move to the events surrounding access visits between mid-2012 and April 2013 would comprise an inadequate and artificial picture of their relationship, and the activities of the couple which were capable of shedding light on the principal fact in issue in the trial.

4. [124]

   It is appropriate to set out, in chronological order, events which the Crown relies upon as arising from the tendered material. Nearly all of these events do not appear to be in contest as events which actually occurred.

5. [125]

   The Accused has a Greek Orthodox background. Having met and commenced a relationship with Monis in about 2007 (when she was about 28 years old), she converted to Islam and changed her name to Amirah Droudis in 2008. Her daughter was converted to Islam as well. The Crown says that it ought be inferred that these steps occurred at the behest of Monis, himself a Muslim.

6. [126]

   In 2007-2008, the Accused participated in 11 videos designed for the Sheikh Haron website (see [34](b) above). The strong content of these videos is said to have been scripted by Monis, and delivered with feeling and a level of dramatic emphasis by the Accused. She was dressed in a black niqab in all videos. The Crown argues that it ought be inferred that not only has Monis converted the Accused to Islam, but that he was using her as a vehicle to express extremist views supportive of terrorism, and the use of violence with the Accused manifesting an adoption of Monis’ beliefs in this respect.

7. [127]

   On two occasions in June 2008, the Accused and Monis conducted a protest outside the premises of Channel 7 in Martin Place, Sydney, apparently arising from something that was said on a Channel 7 program concerning terrorism (see [34](d) above). The Accused is dressed in a black niqab. Each protest is filmed by one or other of the Accused and Monis. The Sheikh Haron website publicised in advance the fact that “Sister Amirah” was to undertake such a protest. The Crown says this is a further variation of conduct on the part of the Accused undertaken at the behest of Monis, with the Accused echoing publicly the grievances of Monis.

8. [128]

   On multiple occasions between May 2008 and November 2009, the Accused and Monis communicated with the families of six deceased Australian soldiers and expressed extreme views concerning the circumstances in which these soldiers died and why (see [34](c), (e), (f), (g), (h), (j)). Activities include the writing of offensive letters, the making of a video where the Accused reinforces orally the message being sent to the family of a deceased soldier and attendance by the Accused (dressed in a black niqab) at the funeral of a deceased soldier. The Crown says that this represents a further variation of extreme activities being undertaken by the Accused at the behest of Monis, with the Accused being an active participant in espousing Monis’ beliefs.

9. [129]

   Following the bombing of the JW Marriott Hotel in Jakarta on 17 July 2009, the Accused communicated between 18 and 21 July 2009 in an offensive manner with the family of an Austrade employee killed in that bombing (see [34](i) above). The Crown says that this is an example of the Accused acting (promptly), at the behest of Monis, to espouse Monis’ extreme views in this different context, the murder of an Australian official in a terrorist attack in Indonesia.

10. [130]

    On 10 November 2009, the Accused and Monis appeared at the Downing Centre Local Court with respect to Commonwealth charges (laid in October 2009) under the Criminal Code (Cth) arising from postal communications with the families of deceased soldiers (see [24] above). Outside Court, the Accused filmed members of the media and handed out leaflets in support of Monis (see [34](k) above). The Crown says that this demonstrates continuing strong adherence by the Accused to Monis’ beliefs, which had by that time brought them both before a criminal court, and her willingness to act to assist him in public to further these beliefs.

11. [131]

    From August 2011, proceedings were before the Federal Magistrates Court concerning the custody of the two young children of Monis and the deceased. In July 2012, Monis wrote to the Court indicating that he withdrew the case from that Court and had filed his complaint “in God’s court” and that “God is the decision maker …” and that the children would live where God decided (see [28] above).

12. [132]

    In August 2012, the Federal Magistrates Court granted the deceased full custody of the children, with Monis to have access rights. On multiple access visits undertaken thereafter up to 7 April 2013 (which were filmed by Monis), the Accused was present with Monis, his two children and usually the Accused’s daughter as well (see [30], [34](l) above). Monis’ children at times refer to the Accused as “Mummy”. The Crown says that this demonstrates an ongoing relationship which has moved to a level where Monis, the Accused and their respective children are acting as a family, and that this sheds light upon what Monis and the Accused intended with respect to the deceased.

13. [133]

    On 13 January 2013, Monis and the Accused attend the residence of the deceased where they are joined by members of the Rebels OMCG (with which Monis had been associated) (see [31] and [34](m) above). The Crown says that it should be inferred that the purpose of this activity was to intimidate the deceased.

14. [134]

    On 27 January 2013 and 10 March 2013, complaints are made by the Accused to police about the conduct of the then partner of the deceased (see [34](n), (o) above). The Crown relies upon this as further conduct designed to pressure the deceased.

15. [135]

    On 21 April 2013, the deceased is killed in the apartment block at Werrington.

16. [136]

    On 28 July 2013, the Accused spoke to her cousin by telephone concerning the upcoming hearing of the Commonwealth charges arising from communications by Monis and the Accused with the relatives of the deceased Australian servicemen. With respect to the forthcoming trial, the Accused is heard to say, “We are proud” and “We’re excited, we’re looking forward to it” (see [34](p) above). The Crown says that this points to adherence by the Accused to Monis’ extremist beliefs, with the Accused continuing to hold the beliefs which underpinned her actions towards the relatives of deceased Australian soldiers in 2008 and 2009.

17. [137]

    On 6 September 2013, after Monis and the Accused had been sentenced for the Commonwealth offences, the Accused filmed Monis outside the Downing Centre. The Accused smiled as she filmed Monis whilst he spoke to the media defending the letters which had been sent to families of deceased servicemen (see [34](q) above). The Crown says that this points to a continuing adherence to Monis’ extremist views and a willingness to act at his behest as a photographer capturing the event.

18. [138]

    On about 20 February 2014, the Accused filmed her ill mother, Soula Droudis, making an apology to Monis for things which the mother had said to police about him, including her saying he was a liar (see [34](r) above). The Crown says this illustrates a continuing preparedness on the part of the Accused to act at Monis’ direction, even where the incident involved her own mother apparently being required to apologise to Monis and with the Accused acting as the photographic recorder of the event.

19. [139]

    On 31 July 2014, a photograph is taken of Monis wearing a headband containing Arabic writing, which translates to “We are your soldiers Muhammed” and “May Allah give him peace” (see [34](s) above). The Crown says that this photograph was taken by the Accused and that it demonstrates her ongoing commitment to support Monis in his extremist views.

20. [140]

    There is force in the Crown submission that these events, spread out over several years, are capable of being treated as evidence of the willingness of the Accused on different occasions, and in different ways, to act at the behest of Monis and espouse his extremist views, thereby engaging in socially and morally reprehensible acts. The various events may be treated as evidence of a continuing attitude, or state of mind of the Accused over a period from about 2007 to April 2013. The events which occurred after April 2013 support an argument that the Accused continued to hold these beliefs, drawn from Monis’ own extreme views. There was no evidence at the pretrial hearing that the Accused had abandoned these views.

21. [141]

    The events which occurred between 2007 and 2012 should also be considered when looking at the evidence of the apparently close relationship between Monis, the Accused and their children in the months leading up to the killing of the deceased on 21 April 2013.

22. [142]

    It might be said that the issues in dispute in this trial are, in a practical sense, relatively narrow. The defence approaches the trial upon the basis that there is ample evidence that Monis wished the deceased dead, and arranged for her to be killed to facilitate his access and control over the two children of the former marriage.

23. [143]

    This is not a trial where an issue will be raised whether the deceased was the victim of some random act of murder, or a murderous act unrelated to Monis.

24. [144]

    I have kept in mind the nature of the Crown’s circumstantial case against the Accused (as outlined in the Crown Case Statement) which involves many components to be considered together, and not in isolation, for the purpose of determining the present admissibility issues.

25. [145]

    There is a substantial volume of evidence of the relationship between the Accused and Monis, which had been on foot for some time, and which had strong and close features in the weeks leading up to the killing on 21 April 2013. In the period between December 2012 and 7 April 2013, Monis was filming access visits where he and the Accused spent recreational time with the two children and the Accused’s daughter. The Crown case in this respect suggests a very close relationship between Monis and the Accused, with that relationship being capable of benefitting from the death of the deceased.

26. [146]

    The Crown will submit that an inference should be drawn that it was the Accused who murdered the deceased at the request of Monis, for the purpose of advancing their mutual interest. The defence will contend that the prosecution has not proved beyond reasonable doubt that it was the Accused who murdered the deceased, with other scenarios to be explored in the trial in that respect and with the Accused to rely on alibi.

27. [147]

    The Crown submits that the relationship between Monis and the Accused, and what are said to be its unusual features, bear upon the issue of motive. Motive is relevant to the question whether the Accused committed the offence: De Gruchy v The Queen [2002] HCA 33; 211 CLR 85 at 92-93 [28]. It is said by the Crown that the lengthy relationship between these two persons, and its strengthened focus in the period leading up to the murder, bears upon a suggested motive of Monis and the Accused to kill the deceased to clear the way to obtaining unfettered custody of the two children to the perceived mutual benefit of both the Accused and Monis.

28. [148]

    On the issue of motive, it would be artificially narrow to receive into evidence only the recent and most direct evidence of the relationship between Monis and the Accused, and their activities on access visits. There is a larger body of evidence which is relevant on the question of motive. Evidence of the Accused acting in various ways, at the bidding of Monis, is also important on this issue. There is considerable force in the Crown submission that the evidence bears upon the issue of motive in the ways described at [101]-[102] above. The evidence suggests the existence of a complex and unusual relationship between the Accused and Monis, where the Accused had acted in various ways at the behest and direction of Monis.

29. [149]

    The Crown’s reliance on evidence as being relationship evidence, or context evidence, must be understood in the setting of this trial. These terms are most frequently encountered in the context of sexual assault trials and have a particular use in that respect. I do not understand the Crown’s reliance upon relationship evidence as being of the type encountered in those cases.

30. [150]

    Rather, the Crown relies upon the lengthy relationship between the Accused and Monis from 2007 to 2014, and features of it, which the Crown says serves to explain aspects of the case, including why it would be that the Accused would wish to do harm to the deceased.

31. [151]

    Also relevant is evidence of the relationship on the one hand between the Accused and Monis, and their association and relationship with the deceased and the children who lived with the deceased.

32. [152]

    For the purposes of this ruling, I have viewed the videos and read the tendered material including the letters written to families of deceased Australian soldiers.

33. [153]

    The material may be described accurately as strong and confronting in its content. Upon the basis that it was the Accused who appears in these videos (and this is not in dispute), it may be said that she makes very strong statements (scripted by Monis), but with the tone and demeanour of the speaker indicative of the depth of feeling of the speaker as well. The summary of these videos in the Crown Case Statement set out at [23] above is accurate.

34. [154]

    Likewise, the Crown summary of the letters sent to the families of deceased Australian soldiers at [23] above is accurate. In Monis v The Queen; Droudis v The Queen [2013] HCA 4; 249 CLR 92, Crennan, Kiefel and Bell JJ described this material at 185 [254]-[255]:

35. [155]

    Their Honours’ description illustrates the confronting content of the letters. The conduct of the Accused with respect to these letters was criminal.

36. [156]

    I have kept in mind that aspects of the conduct of the Accused, in particular the 2008 videos on the Sheikh Haron website, portraying her in a damaging light. The Accused is depicted on these videos expressing extreme views and making statements supportive of terrorist acts.

37. [157]

    It may fairly be said that the conduct of the Accused, in these various ways, revealed a willingness to act, at the behest of and in conjunction with Monis, in socially and morally reprehensible ways.

38. [158]

    It is the case that a number of the acts of the Accused occurred in 2008 and 2009, a number of years before April 2013. However, I keep in mind that the Accused was converted to Islam by Monis. The evidence indicates that not only did she take up the religion of Islam, but also what could be regarded as extremist views and conduct which she shared with Monis and declared from time to time. These included praise for the Bali bombers, condemnation of deceased Australian soldiers for their involvement in the wars in Afghanistan and Iraq, the issue of a fatwa against then President-elect Barack Obama based upon his alleged apostasy. The videos reveal that the Accused was not just reading Monis’ script, but also acting and speaking whilst being filmed in a forceful and (at times) aggressive manner.

39. [159]

    In addition, the Accused participated in the sending of letters to families of deceased Australian servicemen expressed in strong terms, and she appeared in public places in Martin Place and in the vicinity of the Downing Centre and appeared in the videos dressed in a niqab.

40. [160]

    On the tendency issue, I have kept in mind the authorities to which the defence has referred the Court which speak of difficulties in particular cases where the tendency alleged is a general one, and where the events said to give rise to the tendency are not similar to the act said to give rise to the offence (in this case, murder).

41. [161]

    The present case is an unusual one. The Crown says that the Accused has demonstrated, over an extended period of time, a willingness to not just alter her lifestyle at the behest of Monis, but a willingness to follow his direction in expressing extreme views and acting in a confronting manner in a number of ways which (from what is said by the Accused), are said to relate to the religion which she has adopted at the behest of Monis.

42. [162]

    In considering the issue of admissibility for tendency purposes, it is necessary to look at the particular circumstances of the offence for which the Accused is on trial. The killing involved the repeated stabbing of the deceased (some 18 times) who was then doused with petrol and set alight. A combination of those aspects, together with the dress of the assailant (according to an eye witness), provides some support for the existence of religious features associated with the killing. God’s use of fire was adverted to by Monis with respect to the Victorian bushfires. The Crown also alleges that Monis took out insurance (including flood insurance) on his third-floor apartment in Werrington. The Crown says that the use of fire was envisaged by Monis in the crime to be carried out on 21 April 2013.

43. [163]

    It is correct that there are differences between past conduct of the Accused relied upon by the Crown and the conduct involved in the killing. However, the suggested tendency relied upon by the Crown is a preparedness to do Monis’ bidding in a number of different ways, including extremist activities and reprehensible conduct.

44. [164]

    The killing is said to have been committed by a woman. It involved a fierce and sustained knife attack. It may be suggested that the assailant manifested emotion in carrying out this attack. It may be said that the use of fire was gratuitous. On one view, it exposed the assailant to an unnecessary risk, thereby supporting a contention that it played a symbolic role in the attack.

45. [165]

    There is some force in the defence submission that there is limited evidence of a belief on Monis’ part that fire had a religious component. The evidence for this arises from Monis’ correspondence in 2009 with politicians that the Victorian bushfires were “God’s punishment because the Australian government did not oppose the execution of the Bali bombers” (see [25] above).

46. [166]

    The Crown’s argument is helped by evidence that Monis insured the Werrington apartment in 2013, including insurance for flood damage for a third-storey apartment which was not proximate to any body of water. This provides support for the Crown submission that Monis expected damage to the property, including water damage which may flow from the need to extinguish a fire. Upon the common understanding between the parties that Monis was not the assailant, it may be contended that Monis communicated these necessary features of the attack to the assailant.

47. [167]

    I have kept in mind the prejudicial effect of the conduct of the Accused relied upon by the Crown. As stated earlier, the fact that this is a trial by Judge alone does not mean that the Court puts to one side an assessment of prejudice, which would be more concrete if the trial was before a jury. However, I have also kept in mind that the Court is required to give reasons not just for the present ruling, but for the verdict ultimately reached after all the evidence has been adduced at the trial.

48. [168]

    I will keep in mind the purpose for which this evidence is being admitted, and thus seek not to give it undue weight or prominence when assessed in conjunction with other evidence which is to be given at the trial.

Summary of Findings

1. [169]

   I now draw together my conclusions, applying the principles set out earlier to the different types of evidence.

2. [170]

   I have applied the principles set out at [47]-[56] and [78]-[95] above. I am satisfied that the tendered evidence is relevant for the purposes of ss.55-56 Evidence Act 1995 to the resolution of the principal fact in issue in the trial.

3. [171]

   In the manner which I have outlined, the nature and dynamics of the relationship between Monis and the Accused are relevant, with the various events in the period 2007-2014, being capable of shedding considerable light upon the alleged motive of the Accused (and Monis) and the state of mind of the Accused in acting in different ways at the behest of Monis. The evidence forms part of a multi-facetted circumstantial case which the Crown advances.

4. [172]

   For the purposes of s.137, I am not satisfied that the probative value of the evidence is outweighed by the danger of unfair prejudice to the Accused. I am satisfied that the probative value of the evidence is substantial. I have kept in mind the forms of prejudice, including procedural prejudice, which may arise for the purpose of identifying any danger of “unfair prejudice”.

5. [173]

   As I have said, the material is confronting in a number of ways, and is damaging to the Accused. The Court will approach this material in the trial in a manner which keeps it in perspective, and uses it in accordance with appropriate directions.

6. [174]

   I am satisfied that the evidence should be admitted for non-tendency purposes in the trial.

7. [175]

   I have applied the principles set out at [61]-[95] above. The evidence can only be used for tendency purposes if the requirements of ss.97 and 101(2) are met.

8. [176]

   The relevant tendencies are those relied upon by the Crown (at [35] above). I am satisfied that the evidence has significant probative value for the purpose of s.97(1)(b). In reaching this view, I have had regard to not only this tendered evidence, but also other evidence which the Crown will adduce in the trial in support of the circumstantial case against the Accused. I am satisfied that the evidence may be used in support of the tendencies asserted by the Crown by reference to the conduct of the Accused. The evidence will be influential in the context of fact finding.

9. [177]

   In making this assessment, I have kept in mind the question whether there is a real possibility of an alternate explanation consistent with innocence (see [72] above). This aspect is to be considered for s.97(1)(b) purposes and is not, of course, consideration of the ultimate issue in the trial itself. Having considered this aspect, I am satisfied that significant probative value is demonstrated for the purposes of s.97(1)(b) of the Act. No doubt, the arguments advanced for the Accused will be made again at the completion of the trial by reference to all the evidence.

10. [178]

    For the purpose of s.101(2), I have considered the prejudicial effect the evidence may have on the Accused. As I have said, the evidence is, in a number of respects, confronting in its content and damaging to the Accused. This is a Judge-alone trial. I keep in mind the features of such a trial referred to in this judgment. The Court will give directions as to the use of the evidence and will seek to comply with them. The Court will be alive to the risks of procedural prejudice raised for the Accused, and will seek to guard against them.

11. [179]

    In my view, the probative value of the evidence is significant, and of such weight that it outweighs substantially any prejudicial effect it may have on the Accused. The requirement in s.101(2) for admission of the evidence for tendency purposes is made out in this case.

12. [180]

    I will admit the evidence in the trial for tendency purposes as well.

13. [181]

    I have applied the principles in [57]-[60] above. The tendered evidence to which objection is taken is almost entirely in the form of video, audio or documentary evidence. The challenged evidence forms part of a large circumstantial case comprising video and audio evidence, documentary evidence and the evidence of a number of witnesses. The time required for the tender of the challenged evidence will not be excessive in the context of this trial.

14. [182]

    The probative value of the tendered evidence is significant. I am not satisfied that the probative value of the evidence is substantially outweighed by the danger that the evidence might cause or result in undue waste of time.

15. [183]

    I decline to exclude the tendered evidence under s.135(c) Evidence Act 1995.

Conclusion

1. [184]

   It was for these reasons that I made the ruling on 12 August 2016 determining to admit the evidence at trial (see [18] above).