R v HG; R v WE (No 4)

The Crown has called a witness to give evidence of an interview which was conducted with the accused WE in April 2016, in the course of which the accused gave details of a trip that he had undertaken to the area of Northern Sinai. I have previously ruled in relation to the admissibility of specific parts of that interview: R v HG; R v WE (No 2) [2018] NSWSC 1178.

In the course of his evidence-in-chief (at T431.20 and following) the Crown asked the witness the following questions:

At that point, counsel for the accused WE objected and submitted, in effect, that the question put by the Crown was an attempt to circumvent the ruling that I had previously made. It was the Crown's submission that the evidence went to proof of an element, or elements, of the offence (particularly that of intention) and also went to the issue of the accused's credit.

Although part of the debate in relation to the admissibility of the question centred upon ss 108A and 108B of the Evidence Act 1995 (NSW) (‘the Act’), the issue is in my view a far more fundamental one. Even allowing for the width of s 55 of the Act, the question could not rationally affect the jury's assessment of any fact in issue in the proceedings, be it intention or anything else. To press the question on that basis would involve a circuitous process of reasoning, not to mention a degree of unwarranted speculation.

For these reasons the question is disallowed.