R v HG; R v WE (No 10)

The trial of the accused commenced on 24 July last and is now in its fourth week. Shortly prior to the conclusion of the Crown case (indeed only a matter of about an hour before) the Crown indicated that an issue had arisen in respect of its proposed tender, against the accused WE, of Issues 7 and 8 of a magazine entitled “Dabiq”, a publication of Islamic State, which are said to have been accessed by WE in 2015. Mr Trevallion, who appears on behalf of the accused, objected to the proposed tender of that material. In order to place the issue which has arisen in its proper context, some short background is required.

Along with the accused HG, WE has pleaded not guilty to an indictment alleging that he engaged in an act or acts in preparation for a terrorist act or acts. It is part of the Crown case that at the time of his alleged commission of that offence, the accused held what might be described as a violent or, as it is sometimes described, jihadist ideology. In support of that assertion, the Crown relies on the fact that during the period leading up to the alleged commission of the offence the accused had accessed a range of what has been described as “extremist material” on the internet, some of which he downloaded. There is evidence that the two magazines which are the subject of the present tender were amongst the downloaded material.

In his opening address to the jury, the Crown said the following:

The Crown has adduced evidence of the interview to which he referred although I have previously ruled that some of that evidence is inadmissible: see R v HG; R v WE (No 6) [2018] NSWSC 128. In the course of the evidence-in-chief the witness through whom the evidence was led, the Crown asked the following questions, commencing at T440.27:

On the Crown case, El Arish is an area occupied by Islamic State. In his opening address to the jury, counsel for the accused said the following, commencing at T45.32:

Pages 32, 37, 40 and 41 of issue 7 of Dabiq magazine (which is the subject of the present objection) contain references to the Sinai, and to El-Arish. In issue 8 there is a reference (at p 57) to the Sinai Peninsula. The Crown seeks to rely on the fact that the accused accessed material containing those references as evidence going to the ideology to which I earlier made reference.

The principal objection raised on the part of the accused was that any probative value that the evidence might have was outweighed, and outweighed substantially, by the danger of unfair prejudice. The danger of unfair prejudice was said to lie in the fact that it was only a short time ago that the Crown had foreshadowed an intention to tender the material. The thrust of counsel's submission was that this was procedurally unfair. Counsel submitted, in particular, that had he been on notice of the fact that the Crown proposed to tender the actual magazines (as opposed to tendering evidence that the accused had accessed and downloaded them) he would have undertaken further inquiries by reference to other material that the Crown had served. Counsel submitted, in effect, that those opportunities had now effectively been lost in circumstances where the Crown case is all but closed.

The Crown submitted that the evidence was highly probative, and further submitted that the terms in which the danger of unfair prejudice had been articulated were imprecise, to the point that when properly assessed, there was no danger of any unfair prejudice at all.

The approach to the issue by counsel for the accused necessarily assumes an acceptance of the fact that the evidence is relevant. The only issue is whether or not it ought be excluded pursuant to s 137 of the Evidence Act 1995 (NSW).

I am prepared to accept that the evidence has some probative value although I would not necessarily place it at the high level submitted by the Crown. The issue is whether or not that probative value is outweighed by the danger of unfair prejudice. As I have indicated, the danger of unfair prejudice which is relied upon in the present case is essentially a procedural one.

A number of observations may be made about the circumstances in which the issue has arisen.

Firstly, it is to say the least far from ideal to have a situation arise where counsel for an accused person is told, as it were, at the “heel of the hunt” that particular material not previously relied upon is now sought to be tendered. I accept that a Crown case may necessarily evolve to some extent as it progresses. However, this material has obviously been in the Crown's possession for some considerable period of time. The transcript of the submissions made on this argument will reflect the fact that I extended an opportunity to the Crown, on more than one occasion, to offer an explanation as to why it was that it was only now that an indication had been given that it was sought to be tendered. I mean no criticism of the Crown when I observe that no real explanation was offered, other than a passing reference to the fact that it had become necessary to review the evidence in the light of previous rulings that I had made regarding the admissibility of evidence of the interview with the accused in which his trip to Egypt was discussed. I would simply observe that those matters were argued and ruled upon on 31 July, which is now more than two weeks ago.

Secondly, procedural unfairness of the kind which is relied upon by counsel for the accused case is capable of amounting to prejudice of the kind to which s 137 of the Act is directed. This much is clear from the decision of the Court of Criminal Appeal in Haoui v R [2008] NSWCCA 209; 188 A Crim R 331, a judgment which was adopted by me in R v Rice (No 4) [2014] NSWSC 1525, as well as in R v Rogerson; R v McNamara (No 41) [2016] NSWSC 364 at [23] to [25].

Thirdly, and although the Crown's submission as to the nebulous nature of the suggested prejudice may have some superficial merit, the fact of the matter remains that counsel for the accused was not on notice of any reliance by the Crown on this material until immediately before the end of the Crown case. It is evident that a plethora of so-called “extremist material” was served by the Crown on the representatives of each of the accused. What the Crown ultimately tendered against the accused WE was a sample of that material, the details of which are contained in Exh AL. I am satisfied that had counsel for the accused known that this particular material was to be relied upon, he could have had, and would no doubt have directed himself to, the opportunity of reviewing the entirety of the material which had been served to determine whether there was anything else contained within it which might sustain an inference other than the adverse inference which is sought to be relied upon by the Crown. That, in my view, is more than sufficient to create a danger of unfair prejudice.

For those reasons, the tender of the two issues of the magazine should be rejected.