R v WE

Supreme Court of NSW|2020-03-12|Before: Bellew J

INTRODUCTION

The accused in these proceedings has pleaded not guilty to a charge that between about 6 October 2016 and 12 October 2016, at Sydney, in the State of New South Wales, he jointly committed an offence with a person to whom I will refer as HG, namely that he did an act or acts in preparation for, or planning, a terrorist act or acts. That is an offence contrary to s 101.6(1) of the Criminal Code Act 1995 (Cth) and carries a maximum penalty of life imprisonment. The trial has now entered its fifth week and is presently in the case for the accused. That is a circumstance to which I will return later in this judgment.
The issues now before the Court arise from an application made by senior counsel for the accused to tender a considerable amount of what might be described as electronic material found on devices belonging to, or connected to, the accused which were seized by the police at the time of his arrest. The Crown has objected to the tender of that material.

THE CROWN CASE

It is not necessary, for the purposes of resolving the present issues, to canvass the Crown case in its entirety. It is sufficient to note that for the purposes of the offence with which the accused had been charged, the Crown must prove that: 1. the accused and HG intentionally entered into an agreement with each other to do an act or acts; 2. in furtherance of that agreement, the accused and HG intentionally did that act or those acts in preparation for, or planning, a terrorist act or acts.
For the purposes of (b), the terrorist act which is relied upon by the Crown is an action or a threat of action involving the use of a bladed weapon or weapons which, had the action or threat of action been carried out was intended by the accused to advance a political, religious or ideological cause.
Examination of a number of electronic devices which were seized by police at the time of the accused's arrest established that the accused had accessed and/or downloaded what could only be described as a plethora of material of varying kinds. The Crown relies on some of that material to support a conclusion that the accused, at the time of his alleged commission of the offence, had an extremist ideology. The Crown will invite the jury to infer from that, as well as other factors, that the accused had the requisite intention to commit the offence.
In the course of its case, the Crown called Detective Tonkin who produced a number of exhibits onto which data and material downloaded from the devices had been copied [8] . The nature of the material which is contained in those exhibits, and upon which the Crown relies, is wide. It includes, but is not limited to: 1. images of ISIS fighters engaged in war; 2. footage demonstrating the preparation for, and the aftermath of, beheadings; 3. footage depicting the aftermath of a public crucifixion; 4. statements by Islamic preachers (some of whom are identified; some of whom are not) extolling the virtues of extreme Islam; 5. interviews with adolescent children expressing support for the ideology of ISIS, and expressing intentions to fight with ISIS; 6. footage of terrorist attacks overseas, including footage of the attacks on the World Trade Center on September 11, 2001; and 7. copies of the ISIS magazine, "Dabiq".
Some of the material downloaded from the devices might be described as mainstream footage, including documentaries broadcast publicly by commercial news outlets in various parts of the world. Equally, some of the material is in the nature of propaganda disseminated by Islamic State.
Detective Victor, the case officer, was cross-examined in a general sense about other (non-extremist) material on the various devices. He agreed (inter alia) that such material included games, cartoons and pornography of various kinds. [9] Detective Victor gave evidence explaining the process by which the police selected and extracted the material which is now relied upon by the Crown. [10] Prior to the commencement of the trial, and consistent with its duty, the Crown disclosed to the accused's representatives the existence of entirety of the material which had been located on all devices seized.
It is against this background that senior counsel for the accused has indicated that he proposes to tender, through the accused, the contents of non-extremist material which the accused accessed through various websites on two of the devices, namely a Huawei phone and a Samsung Galaxy phone.
The Crown has objected to the tender of that material. Whilst the Crown raised an objection as to relevance, its primary position was that whilst the fact that the accused accessed such material was relevant, the tender of the content of that material should be rejected in the exercise of my discretion pursuant to s 135(c) of the Evidence Act 1995 (NSW) ("the Act"). In formulating its position, the Crown made it clear that it did not object to the tender of a schedule (or a similar document) setting out a description of each piece of footage which was relied upon. Such a schedule would go to establish that the accused had accessed the material.

THE EVIDENCE

The evidence on the present application consisted of the following: 1. a folder of material setting out web histories and descriptions of video extracts from the two devices; [11] 2. a USB containing the footage from the Huawei phone; [12] 3. a USB containing the footage from the Samsung phone; [13] 4. Crown schedules of the material in exhibits B and C containing a description of the footage in each case; [14] and 5. material relating to a person by the name of "Shady Srour". [15]
In terms of exhibit 2, it should simply be noted that Shady Srour features in a number of items of footage which are the subject of the proposed tender. He is perhaps best described as a satirist and "YouTuber" who appears to present what might be described as satirical and comedic sketches.
I have already noted that the schedules in exhibit 1 summarise the content of the footage in each case. Importantly, for the purposes of the determination that I have to make, senior counsel for the accused conceded that in each case the summary was "accurate, so far as it gives a summary of what is in (the video)". [16]
It should be noted that I was provided with exhibits A, B and C, along with part of exhibit 1, prior to hearing argument on the present application. I have not viewed the entirety of each piece of video footage which is the subject of the proposed tender. I have, however, viewed a sufficient portion of each piece of footage to enable me to determine the general nature of its content. Having done so, and like senior counsel for the accused, I am satisfied that the Crown's summaries of the material contained in exhibit 1 are accurate.
The video footage which is the subject of the proposed tender and which is contained in exhibits B and C may be divided into the following general categories: 1. general entertainment; 2. homosexual and heterosexual pornography; 3. ultimate fighting championship ("UFC") contests, best described as a form of mixed martial arts; 4. documentaries; 5. comedy sketches; 6. music; 7. games; and 8. current affairs reports.
There are 256 videos in exhibits B and C. The total playing time of those 256 videos is 36 hours and 8 minutes. Playing them in their entirety would occupy approximately eight sitting days. That calculation does not, of course, take into account the oral evidence which would be adduced from the accused in the course of the material being played, nor does it take into account any cross-examination of the accused in relation to its contents.

THE PRESENT APPLICATION

My initial understanding of the position of senior counsel for the accused was that he sought to tender, and then play to the jury, the entirety of all 256 videos. [17] However, when I sought to confirm that this was the position, senior counsel informed me that it was not so. When I asked whether that meant that a portion of each would be played, the following exchange took place: [18] "HIS HONOUR: So does that mean that you are not playing a portion of each and every item that's highlighted in yellow? COUNSEL: No, your Honour, I would be playing one to show the jury what it was. HIS HONOUR: I had thought that I had asked you earlier whether or not the yellow highlighting represented the ones you wanted to play and I thought you said "yes". COUNSEL: Yes, your Honour. HIS HONOUR: You are now telling me you don't. COUNSEL: Perhaps I am not making myself clear. HIS HONOUR: With respect, you are not, because I thought that the position was clear earlier when I asked you specifically whether or not the items highlighted were the ones that were to be played and you said, "yes". COUNSEL: Your Honour is perfectly correct. I withdraw what I say. We would be seeking to play each of the items that are highlighted in yellow, but we would not play in full each item; we would play enough of each item to indicate to the jury what that item represented. HIS HONOUR: So you are seeking to play a portion of each one highlighted in yellow? COUNSEL: That's so. HIS HONOUR: In the course of playing a portion of each one I presume that in respect of each one, you will seek to elicit some oral evidence from your client? COUNSEL: So it will be played during his evidence, your Honour. HIS HONOUR: And I take it that as you play each one you will be attempting to elicit some oral evidence from him? COUNSEL: Yes, your Honour. HIS HONOUR: Are you in a position to tell me the effect of the evidence you expect to elicit from him? COUNSEL: Well, is this something that he accessed? HIS HONOUR: Can I just stop you there? In relation to that question that's been asked of your client in relation to the material that the Crown has tendered, his answer invariably has been, 'I can't recall'. Do you anticipate that that will be his evidence when you ask him the question in relation to this material? You don't have to tell me, of course. I make that very clear. COUNSEL: Yes. My anticipation is that he will recognise these items as items that he was interested in. HIS HONOUR: That's different to the question that I asked. You have asked him specifically in relation to the Crown's material whether he accessed the material and his answer invariably has been that he can't recall. COUNSEL: That is so, your Honour. HIS HONOUR: Are you anticipating that that will be his evidence if and when you ask him whether he has accessed this material? COUNSEL: No, I don't anticipate that that will be his evidence at all. I anticipate his evidence will be, yes, he did look at this material. Now, I can't say whether, in respect of every one of them he looked at them in full or in part. I don't know the answer to that yet, but I would expect that he would be asked about that and he would indicate that he had looked at these, these were matters that he was interested in. I would expect that he would say with Shady Srour that he is a comedian. I would anticipate that he would say, he does not understand what he is saying, because he is speaking in Arabic; but he can understand from his movements that he found it amusing. He would give an answer to each of them. Then if my learned friend asked him questions, and I imagine that he would, he would have to deal with each one that he was asked. HIS HONOUR: In broad terms, the evidence that you are seeking to elicit from your client in the course of playing this material, is the fact that he accessed this material and that he had, in each case, an interest in it? COUNSEL: That is so. Of course the time, as with the other items that I took him to, I took him to the time that he accessed it, how much he spent on it, if he could say. So it could be anticipated, your Honour, that he would take some time dealing with it. Even with the Huawei phone that would take some hours. HIS HONOUR: I think you expressed it yesterday in days. COUNSEL: It would take some days, I would think. I am not in a position to dispute the Crown's assertion as to the number of hours or days because it may be that, for the purpose of evidence, the whole of particular items is in fact played. The Crown might say he objects to this bit being played and not the rest, because it does not give a fair representation of the whole video."
I must confess to being in a state of some confusion as to precisely what course is proposed in the event that the evidence is admitted. Initially, senior counsel appeared to indicate that the entirety of the material would be played. He then shifted to the position that a representative sample of each genre would be played. Interspersed between those two positions was a further proposal, namely that a part of each one would be played. In the end, it seemed to be suggested that there was a possibility that the whole of particular items may in fact be played. Irrespective of what approach might ultimately be taken, it is apparent that if the evidence is admitted, dealing with it will take several days.
I should also note that in the course of oral submissions, senior counsel for the accused conceded that if the material was admitted, and given that a portion of it is in a foreign language, it would be necessary to have that portion, or those portions, translated. He accepted that this would necessarily add to the time that it would take to prepare and adduce the evidence. As I understand it, no translations have yet been prepared. Indeed, no steps have been taken at all in this regard. What time all of these matters might add to the process of adducing the evidence is not clear.
None of these estimates take into account any cross-examination of the accused in relation to such evidence as may be put before the jury. In that regard, it is relevant to observe that in the course of evidence-in-chief thus far, the accused has been painstakingly directed to each and every individual item of electronic evidence adduced by the Crown through Detective Tonkin. Notwithstanding the fact that the Crown played this material in its entirety in its case, senior counsel for the accused has chosen to play it all again. As I noted in the exchange with senior counsel set out above, when that process has been undertaken in each case, the accused has invariably asserted that he has no recollection of accessing the material. It can be reasonably expected that if the evidence that is the subject of the present application is admitted, and if the accused's evidence in relation to it is generally in accordance with senior counsel's expectation, the Crown's cross-examination is unlikely to be brief.

Submissions of the accused

Senior counsel for the accused submitted that the relevance of the evidence lay in the fact that the accused had accessed "non-extremist" material. It was submitted that the evidence demonstrated that the accused had an interest in a variety of matters over and above those of an extremist nature, and that he had accessed material of varying kinds and genres, all of which were substantially removed from the kind of material relied upon by the Crown. Senior counsel explained that the evidence would ground a submission that the jury should view this aspect of the evidence in its entirety and that having done so, that they would not be satisfied beyond reasonable doubt that the accused had the requisite intention to commit the offence.
Senior counsel for the accused accepted that any assessment under s 135(c) of the Act involved a balancing exercise. In that respect, he submitted that the probative value of the evidence was high because of the visual impact of what is demonstrated on each piece of video footage which is sought to be tendered. Using, by way of example, some of the adult pornographic material that he proposes to tender and play, senior counsel submitted that "one picture is worth a thousand words" because "it has the people involved in it reacting to one another in various ways". [19] Senior counsel submitted that the probative value of that evidence (and, by analogy, the probative value of the entirety of the evidence sought to be tendered and played) was that "it shows that it happens and that is what (the accused) looked at". [20] Using the UFC material as another example, senior counsel submitted that the probative value of that material lay in the fact that "until a person has seen one of those videos, it is hard to believe that human beings would engage in such conduct". [21]
In terms of the danger that the admission of the evidence might cause an undue waste of time, senior counsel submitted that the evidence was vitally important to enable the accused to throw doubt on the Crown case. He submitted that the fact that adducing the evidence "could cause an extra two days in the context of a trial that has already gone for four weeks (was) not something that could be said to cause an undue waste of time". [22] As to that submission, I should simply observe that on the evidence before me, senior counsel's estimate is again grossly inaccurate. On any view of it, and whatever course might be adopted, I am satisfied that the playing of this material would take substantially longer than two days.
Senior counsel further submitted that to the extent that some of the material might be regarded as distasteful, or might cause an emotional reaction on the part of any member of the jury, such a reaction was no greater than that which might have been caused in response to the extremist evidence played by the Crown. It was submitted that such issue could be dealt with by an appropriate direction.
Senior counsel further submitted, in effect, that in seeking to put the content of this video material before the jury, he was seeking to do no more than and no less than what the Crown had done. He also emphasised that it was necessary to perform the balancing exercise required by s 135(c) having regard to the seriousness of the offence with which the accused is charged.

Submissions of the Crown

The Crown accepted that evidence that the accused accessed material other than extremist material was relevant for the reasons that I have previously outlined. However, in making that concession, the Crown drew a distinction between evidence of the fact of access, and evidence of the content which was accessed.
The Crown's principal position was that the evidence should be excluded in the exercise of the discretion conferred by s 135(c) of the Act. The Crown submitted, in particular, that any assessment of the probative value could not, and should not, be considered in isolation. The Crown made it clear that it had no objection to evidence of the fact of access being put before the jury, but submitted that the content of what had been accessed was of low probative value and, at least to some extent, was already covered by the evidence given by Detective Victor to which I earlier referred.
The Crown submitted that any probative value which might attach to the evidence was substantially outweighed by the danger that its admission might cause or result in an undue waste of time. In advancing that submission, the Crown emphasised that in making that assessment, I was not required to reach a conclusion that the probative value of the evidence was substantially outweighed by the probative value of the evidence, and that I need only be satisfied that such probative value was substantially outweighed by a danger that this might be the case. [23]
The Crown also referred me to authorities which made reference to the common law principle reflected in s 135(c). The Crown submitted that the exclusion of evidence under the section is warranted where there is a necessity to save judicial resources from being directed to a burdensome inquiry, from which there is unlikely to be any substantial countervailing benefit in assessing the resolution of the relevant issues. [24] It was the Crown's submission that the evidence fell squarely within that category and that its tender would serve little or no utility in terms of the jury's determination of any element of the offence which was in issue. On the contrary, the Crown submitted that its admission would give rise to a real and significant risk that the trial would be unduly prolonged.
The Crown also emphasised the need to consider the danger that the evidence might cause or result in an undue waste of time specifically in the context of the present trial, and not in a vacuum. In this regard, the Crown pointed out that I have already been required to give a warning about some of the material on which the Crown relied and that the reactions of some members of the jury had caused me to take extra adjournments in the course of that evidence being adduced. The Crown submitted that there was, in all of the circumstances, a reasonable anticipation that at least some of the material to which objection was now taken would have the same effect, and that this would necessarily cause even further delay.

CONSIDERATION

Section 135(c) of the Act is in the following terms: 135 General discretion to exclude evidence "The Court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: … (c) cause or result in undue waste of time."
In a case where s 135(c) is relied upon I must conduct a balancing exercise, which involves taking a number of steps.
Firstly, I must assess the probative value of the evidence. The term "probative value" is defined in the Dictionary to the Act in the following terms: Probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
The second step in the process is to assess the danger that the evidence might cause or result in an undue waste of time.
The final step in the balancing exercise is to determine whether the probative value of the evidence is substantially outweighed by such danger. If I am satisfied that it is, the evidence may be excluded.
In carrying out that balancing exercise and in the context of the present case, it is important to emphasise the following: 1. the purpose for which the evidence is sought to be tendered in the accused's case is to establish that the accused accessed material, other than extremist material, through the internet; 2. the fact in issue to which that evidence is said to go is whether the accused had the requisite intention to commit the offence with which he has been charged; 3. the content of what the accused accessed is to be distinguished from the fact that he accessed it. It is for the purpose of proving the latter that the evidence is sought to be tendered; 4. it is accepted by senior counsel for the accused that the fact that the accused accessed material other than extremist material has been the subject of evidence from Detective Victor; 5. it is also accepted by senior counsel for the accused that the fact that the accused accessed material other than extremist material can be established in another way, namely by tendering schedules either in the form of those prepared by the Crown, or in some modified form; and 6. it is also accepted by senior counsel for the accused that the fact that the accused's accessing of such material can be established in that alternative way is relevant to the exercise of my discretion under s 135(c).
At common law, evidence which, although possibly relevant, would involve a waste of the Court's resources out of all proportion to the probable value of the results, could be excluded in the exercise of the Court's discretion on the basis that it was too remote, or collateral to the main inquiry. [25] In DF Lyons Pty Limited v Commonwealth Bank of Australia [26] (a case determined prior to the enactment of s 135(c)) it was accepted that there was a common law discretion to refuse to enter upon a burdensome inquiry, from which there might be no substantial countervailing benefit in assisting the resolution of the primary issues before the Court.
Section 135(c) reflects these common law principles. It applies to all evidence, including the evidence sought to be adduced by an accused in a criminal trial. Whilst there is authority to support the proposition that a Court will be cautious in relying on the section as a basis for excluding evidence in an accused's case, that is not to say that the section can never operate in such circumstances. [27]
Carrying out the balancing exercise under s 135(c) necessarily involves weighing "essentially incommensurable factors". [28] At the same time, the balancing exercise involves taking several distinct and well-defined steps, the first of which is an assessment of the probative value of the evidence.
In my view, for a number of reasons, the probative value of the content of what was accessed by the accused is low. The fact that the accused accessed (for example) a pornographic video, as opposed to extremist propaganda, is relevant, and may bear upon a relevant fact in issue, namely whether he had the requisite intention to commit the offence. However, the content of that material, described by senior counsel for the accused as involving people "reacting to one another in various ways" has little or no bearing on that fact in issue. Similarly, the fact that the accused accessed a UFC video, as opposed to extremist propaganda, is relevant, and may bear on the same fact in issue. But the fact that that video depicts, as senior counsel described it, images which render it "hard to believe that human beings would engage in (it)" similarly has little or no bearing on that (or for that matter, any other) fact in issue.
Those same observations can, by way of analogy, be made in respect of the entirety of the material which is the subject of the present application. That is particularly so in the case of the videos of Shady Srour which (in large part) appear to be in Arabic and which are obviously in the nature of comedy skits.
In my view, it is no answer to say that what is proposed is, for want of a better term, a "mirror image" of the approach taken by the Crown, and that the course which is sought to be adopted should be permitted on that basis. Such a proposition entirely overlooks the differing content of the material. The content of the material relied upon by the Crown, by its very nature, has a significant and real capacity to rationally affect the assessment of the probability that the accused had the relevant intention. For the reasons that I have just articulated, the content of the evidence which is the subject of the present application does not.
For all of these reasons, in my view the probative value of the material is low.
Moreover, the danger that the evidence might cause or result in an undue waste of time is significant. One of the assessments that I am required to make in this regard is the time that might be taken in adducing the evidence. [29] That assessment necessarily includes an assessment of the time that would be likely to be taken in cross-examination, or in any evidence in re-examination. I have already observed that estimates that I have been given on behalf of the accused in varying respects have proved to be hopelessly inaccurate. Doing the best I can, I am satisfied that the tender of this evidence would take multiple days of court time, in the context of a trial which will already substantially exceed its estimate.
I must, and I do, have regard to the fact that this is a criminal trial for a most serious offence which carries a maximum penalty of life imprisonment. I have also taken into account the fact that it is the accused who seeks to tender the evidence. Those matters, whilst relevant, are not conclusive. Moreover, what is particularly significant in the present case is that the accused's accessing of the material which is the subject of the proposed tender can be established by another route, namely by tendering schedules in the nature of those in exhibit 1. The availability of this other evidence to prove the fact of the accused's access to the material is clearly a relevant consideration, and one which supports the exclusion of the evidence in the exercise of my discretion under s 135(c). [30]
For all of those reasons, I have come to the view 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. Having reached that conclusion, and in the exercise of my discretion, the proposed tender of the evidence will be rejected. However, it follows from what I have said that subject to hearing any further argument from the parties, I would admit into evidence a summary of the content of the material in each case.

Exhibit 1 - part 1 (531 KB, pdf) Exhibit 1 - part 2 (1.19 MB, pdf) Exhibit 1 - part 3 (829 KB, pdf)

Endnotes

T63.3 - T63.4 (pre-trial transcripts).
T889.36 - T889.37.
T890.4 - T890.9.
T900.17.
T1042.49 - T1043.8; T1091.12 - T1092.30.
T1040.20.
T1095.43 - T1096.10.
Huawei phone Exhs. BC and BD; Samsung Galaxy phone Exhs. BE and BF; Acer computer Exhs. BG and BH.
T895.44 - T896.19.
Commencing at T891.7.
Exh. A.
Exh. B.
Exh. C.
Exh. 1 which is Appendix A to this judgment.
Exh. 2.
T1105.21 - T1105.22.
T1105.8 - T1105.16; T1106.29.
Commencing at T1110.11.
T1114.28 - T1114.36.
T1114.40.
T1115.4 - T1115.5.
Written submissions on behalf of the accused at [19].
See Seven Network Limited v News Limited (No. 8) (2005) 224 ALR 317; [2005] FCA 1348 at [16], cited in Welsh v Carnival PLC Trading as Carnival Australia (No. 4) [2016] NSWSC 1296 at [21]).
See Koninklijke Phillips Electronics NV v Remington Products Australia Pty Limited (2000) 100 FCR 90; [2000] FCA 876.
See Evidence: Its History and Policies, 1991, Julius Stone pages 60-62; Attorney-General v Hitchcock (1847) 11 Jur 478 at 482, cited by Burchett J in Koninklijke (supra) at [21].
(1991) 28 FCR 597 per Gummow J at 607.
See R v Taylor [2003] NSWCCA 194 at [128] per Bell J.
See Australian Securities and Investments Commission v Rich & Ors (2005) 218 ALR 764; [2005] NSWCA 152 at [164] per Spigelman CJ.
See Cadbury-Schweppes Pty Limited v Darrell Lea Chocolate Shops Pty Limited (2007) 159 FCR 397; [2007] FCAFC 70 at [76] per Black CJ, Emmett and Middleton JJ.
See Taylor (supra) at [128] per Bell J.

Amendments 08 April 2020 - Inclusion of Appendix A (Exh 1, parts 1,2 and 3). 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

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