R v HG; R v WE (No 7)

INTRODUCTION

1. [1]

   The accused HG and WE have pleaded not guilty to a charge of doing an act or acts in preparation for a terrorist act or acts. The Crown seeks to tender, in its case against the accused HG, some notes found in his possession some weeks after he was taken into custody following his arrest on 12 October 2016. The notes are dated 18 November 2016. Translations of them appear in an annexure to the statement of Joelle Dib of 18 January 2017 in the following terms:

2. [2]

   The proposed tender is limited to the notes in (iii), (v) and (vii). Senior counsel for HG, whilst accepting that they were relevant, submitted that they ought be excluded pursuant to s 137 of the Evidence Act 1995 (NSW) (‘the Act’). In support of that position, senior counsel submitted that the probative value of the notes was not high, and that it was outweighed by a danger of unfair prejudice arising from the fact that they were:

3. [3]

   The Crown submitted that notwithstanding the fact that the creation of the documents apparently post-dated the accused’s arrest, the evidence nevertheless supported the Crown case that the accused had an extremist ideology. The Crown accepted that not all of the notes were written in extremist terms and, as I have noted, limited the tender to items (iii), (v) and (vii).

4. [4]

   Bearing in mind the basis upon which the Crown seeks to lead this evidence, the documents numbered (iii), (v) and (vii) are clearly relevant and admissible. References in each of those documents to matters such as “smelling the musk on our loved ones”, “destruction of the worshippers of the cross and idols” and “destruction … of the worshippers of rulers, scholars of evil and money” are of significant probative value. None of the matters advanced on behalf of the accused support a conclusion that such probative value is outweighed by the danger of unfair prejudice. There is not the slightest suggestion that if the evidence were admitted, the jury would engage in some impermissible process of reasoning. For those reasons, the documents are admissible.

5. [5]

   The documents numbered (i), (ii), (iv), (vi) and (viii) have little probative value bearing in mind the basis on which the Crown argued that this material was relevant. Whilst they set out religious views, such views are expressed in terms which are other than extreme. In the course of argument, senior counsel for the accused foreshadowed that if I were to admit documents (iv), (v) and (vii), the remaining documents should also be tendered. For the reasons I have expressed, the remaining documents would appear to have little, if any, relevance to any issue in the trial. If senior counsel for the accused wishes those documents to be tendered, then that is a course which he should initially pursue in discussions with the Crown.