[ 2008] NSWCCA 209
R v Rice & Ors (No 4) [2014] NSWSC 1525
R v Rogerson
Source
Original judgment source is linked above.
Catchwords
[ 2008] NSWCCA 209
R v Rice & Ors (No 4) [2014] NSWSC 1525
R v Rogerson
Judgment (2 paragraphs)
[1]
Judgment - EX TEMPORE (REVISED)
The accused in this matter has pleaded not guilty to a charge of doing acts in preparation for, or planning, a terrorist act or acts.
The trial with the present jury commenced on 15 July 2019. The Crown case is expected to close within the next few days. This is the third occasion on which the accused has come to trial. The jury in his first trial could not reach a unanimous verdict in August 2018. The jury in the second trial were discharged. [1]
The Crown proposes to call Dr Rodger Shanahan, an expert in Islamic studies, as a witness in its case. For the purposes of Dr Shanahan's evidence, the Crown has served a number of reports, the most recent of which is dated 2 July 2019 ("the fifth report").
Counsel for the accused has objected to the Crown leading the entirety of the contents of the fifth report although properly viewed, the objection is really an objection to the final two paragraphs. Counsel has relied on s 137 of the Evidence Act 1995 (NSW) ("the Act") and has submitted that the probative value of those parts of the fifth report is outweighed by the danger of unfair prejudice to the accused. That unfair prejudice is said to manifest itself in what might be described as procedural unfairness, stemming from the date on which the fifth report was served by the Crown, and the consequent inability of those acting for the accused to qualify an expert to provide a report in reply.
Two affidavits have been read for the purposes of resolving this issue. The first is that of Louise Thompson, the Crown's instructing solicitor, which does not bear a date but which I infer has been sworn recently. The second is an affidavit of Stephen Alexander, the solicitor for the accused, of 30 July 2019.
Paragraphs 1-3 of the fifth report deal with (inter alia) the meaning of the terms "Salafism" and "Salafist". Such evidence was given without objection in the previous trial. However, in paragraph 4 of the fifth report Dr Shanahan has stated that he was recently provided with a range of what he described as "additional electronic material" upon which he was asked to comment. Although this electronic material has always formed a significant part of the Crown case against the accused, it is evident from the tenor of the fifth report that it was given to Dr Shanahan only recently. Having set out the material with which he was provided, Dr Shanahan (in the paragraphs to which objection has been taken) said the following: [2]
"5. Looking at what (the accused) has searched for, viewed and downloaded, there is a definite focus on radical Salafist views on issues such as jihad, and appetite for news about attacks by Muslims and Islamic proselytising material. There was also a focus on Salafist jihadism with downloads of material featuring Islamic State propaganda in the form of their online magazine, nasheed and videos, Al-Qaeda representatives in the form of Osama bin Laden and Anwar al-Awlaki is also heavily featured.
6. Because there is no balanced evidenced in the type of individuals, publications or videos that have been searched for or downloaded, the online activity is not indicative of someone searching for a range of ideas within and about Islam. On the contrary, it appears to be focused on radical, violent interpretations of Islam that is representative of Salafi-jihadists."
The Crown accepted that much of what Dr Shanahan has expressed in those paragraphs was not in an admissible form. However, the Crown made it clear that the essence of what was to be elicited from Dr Shanahan was his opinion that the material that he reviewed was consistent with the accused having a focus on what he described as "radical Salafist views".
Dr Shanahan provided the fifth report to the Crown at about 9.10pm on 2 July 2019. On 4 July 2019 senior counsel for the Crown and counsel for the accused spoke on the telephone, in the course of which they discussed the fifth report. Counsel for the accused indicated at that time that he had not received a copy of it, at which time Ms Thompson realised that she had inadvertently omitted to serve it when she had received it. A copy of the fifth report was emailed to counsel for the accused shortly after 5pm on 4 July 2019. Later that evening a copy was sent to Mr Alexander. It should be noted that 4 July was the Thursday prior to Monday 8 July, when the accused's re-trial commenced. As I have noted, the jury in that trial was discharged on day four, for reasons which are the subject of a previous judgment. It was in those circumstances that the present trial commenced on 15 July. On any view of the evidence, the fifth report was served at a very late stage. This is particularly so when one considers the fact that this is a re-trial, the first trial having taken place some 12 months ago.
I have been told by counsel for the accused from the bar table, and I accept, that upon receipt of the fifth report he determined that steps should be taken to qualify an expert to provide a report in response. Counsel explained to me in the course of argument that a forensic decision had been made at the time of the service of the earlier reports that no expert was needed. I accept that to be the case. However, counsel took the view that the opinions expressed in the fifth report, particularly those encompassed in paragraphs 5 and 6, went substantially beyond the evidence given at the previous trial. I infer that this view was formed by counsel almost immediately upon receiving the fifth report. I draw that inference because the unchallenged evidence of Mr Alexander [3] is that on 5 July 2019 (the day immediately following counsel's receipt of the fifth report) he directed his staff to make an urgent application to Legal Aid NSW seeking a grant of aid to enable an expert to be engaged. Whether that was an extension of the existing grant, or whether it was to be regarded as a fresh grant, is not entirely clear, but it does not seem to me to be material.
Mr Alexander's evidence is that he directed his staff to make contact with Legal Aid NSW twice each week to seek an update on the application which had been made. That evidence is again unchallenged and I accept it. I further accept that inquiries were made with that frequency consistently between 6 July 2019 and 25 July 2019. Regrettably, it was not until 26 July 2019, i.e. five days ago, that the application was approved. The process of approval took almost three weeks.
The accused is standing trial for an offence which carries a maximum penalty of life imprisonment. His counsel made a determination that further evidence was required to meet an expert report served late by the Crown, the obtaining of which required a further grant of legal aid. The application for a further grant was made in circumstances where the trial was about to commence. The request was repeatedly renewed while the trial was proceeding, over a period of more than three weeks. I find it entirely unsatisfactory that the application was not assessed and approved with a far greater degree of alacrity.
Whilst awaiting a response to his application, Mr Alexander made a number of preliminary inquiries regarding the availability of experts who could possibly assist. Although his affidavit in those respects is not as fulsome as might have been expected, I am satisfied that he made inquiries with three experts.
The first was a Dr Ghena Krayem, who was approached on 5 July 2019. The affidavit of Mr Alexander is silent as to what occurred after that approach. However, I have been informed from the bar table, and I again accept, that when contacted, Dr Krayem did not respond. It does not appear that Dr Krayem's availability was pursued any further.
On the same day, Mr Alexander contacted a Dr Salim Farrar. On the following day, 6 July, Dr Farrar replied to Mr Alexander, expressing a belief that he would have the expertise to provide a report, but explaining that he "had some caveats", the first of which concerned timing. Dr Farrar explained that he was overseas in Malaysia until the beginning of August, and that he would not be able to assist if any report was needed before then. Given that the trial was to commence two days after this email was sent, and given its then estimate, any report would have been required prior to the beginning of August, meaning that Dr Farrar would not have been able to assist. Other caveats placed by Dr Farrar on his assistance included the making of what he described as a "media gagging order" suppressing his identity. It is neither necessary nor desirable for me to comment on that particular caveat, or the reasons given by Dr Farrar for imposing it.
The third expert approached by Mr Alexander was a Dr Abdalla who was contacted on 6 July 2019. What happened after that approach is not clear. In particular, it is not clear what, if any, response Dr Abdalla made to that initial approach. Mr Alexander contacted Dr Abdalla again on 30 July 2019 and received an automated email response stating that he (Dr Abdalla) was out of the office and would respond. On the evidence before me, no such response has been forthcoming as at today.
Whilst other obvious steps, such as following up these initial inquiries, could have been taken by Mr Alexander, it must be said in fairness that he was not in a position to make any commitment in terms of retaining an expert until such time as his request for funding had been approved. All he could do until that time was make contingent arrangements. As I have said, approval for funding was not forthcoming until 26 July.
Counsel for the accused submitted that in all of these circumstances, the late service of the fifth report had rendered him unable to obtain any expert evidence in response. He stressed that he had made a forensic decision in relation to the evidence given by Dr Shanahan in the last trial (in terms of the necessity for an expert) but took a different view in relation to the evidence in the fifth report because it went substantially further. Counsel submitted that in the circumstances, Mr Alexander could not have done anything more than he had done in attempting to secure the availability of an expert.
The Crown accepted that the report had been served at a late stage but submitted that the test for exclusion posed by s 137 of the Act was not met. It was submitted that the accused's representatives had been given sufficient notice of an intention to call Dr Shanahan, and that prior to the service of the fifth report the intention to lead further evidence from Dr Shanahan had been foreshadowed. The Crown further submitted that the fifth report had been provided to those acting for the accused immediately, or essentially immediately, upon receipt. It was submitted that in circumstances where those representing the accused had been on notice since 2018 of the Crown's intention to rely on the evidence of Dr Shanahan, there was no danger of unfair prejudice.
Leaving aside questions of form, the essence of what the Crown seeks to adduce from Dr Shanahan arising from paragraphs 5 and 6 of the fifth report is, in my view, substantially probative of the accused's ideology. The question is whether that probative value is outweighed by the danger of unfair prejudice. If I come to the view that it is, then s 137 of the Act mandates its exclusion. Procedural unfairness is capable of giving rise to a danger of unfair prejudice of a kind which falls within the ambit of s 137. [4]
For a number of reasons, I have come to the view that s 137 mandates the exclusion of the report.
To begin with, and as I have noted on more than one occasion, this is a re-trial. The accused stood trial 12 months ago, and the jury was unable to reach a unanimous verdict. The Crown conceded that service of the fifth report had been affected only days before the re-trial was to commence. The fact that the Crown may have foreshadowed an intention to rely upon a further report before the fifth report was served is not to the point. Counsel for the accused was simply not in a position to make any forensic decision regarding the fifth report until such time as it was served and he was given an opportunity to consider its contents.
Upon receipt of the report, counsel for the accused and his instructing solicitor wasted no time in forming a view that for the purposes of the proper conduct of the accused's case, it was necessary to retain an expert. The unchallenged evidence to which I have referred sets out the steps that were taken to that end. Although, for the reasons to which I have alluded, some further steps could have been taken, the fact is that those representing the accused were "hamstrung" (for want of a better term) in retaining any expert as a consequence of the significant delay in the approval of funding by Legal Aid NSW.
The end result is that those representing the accused now find themselves in a position where, despite their reasonable efforts, they are unable to meet the evidence which is sought to be adduced in the Crown case. No expert is immediately available to be qualified on behalf of the accused. Irrespective of how the relevant events are viewed, the position in which the accused now finds himself stems primarily from the Crown's late service of the fifth report, for which no explanation has been forthcoming.
It is trite to observe that the accused is entitled to a fair trial. In my view, the inability of the accused to meet the additional evidence of Dr Shanahan gives rise to a danger of unfair prejudice which outweighs the position taken of the evidence and which potentially engages s 137 of the Act. For those reasons, the contents of paragraphs 5 and 6 of Dr Shanahan's report of 2 July 2019 will be excluded.
It should be noted that counsel for the accused also challenged the expertise of Dr Shanahan to express some of the views set out in paragraphs 5 and 6 of the fifth report. Given the conclusion that I have reached, it is unnecessary for me to consider that issue.
[2]
Endnotes
See R v WE (No.3) [2019] NSWSC 881.
At paras (5)-(6).
At para (5) of his affidavit.
R v Rogerson; R v McNamara (No 41) [2016] NSWSC 364; R v Rice & Ors (No 4 )[2014] NSWSC 1525 at [32]; Haoui v R (2008) 188 A Crim R 331; [2008] NSWCCA 209.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 08 April 2020