R v HG; R v WE (No 9) [2018] NSWSC 1262

R v HG; R v WE (No 9) [2018] NSWSC 1262

Evidence that WE's phone was found dismantled was not admissible against HG because the surrounding evidence could support an inference that HG had an interest in counter-surveillance techniques but could not sustain an inference that HG played any part in dismantling WE's phone. Evidence that HG left his phone at home was not admissible against WE because the evidence did not support an inference that WE was a party to HG's decision. The footage and translation found on HG's phone were irrelevant to the Crown case against WE and, even if admissible, had only slight probative value against WE while carrying substantial unfair prejudice.

Jurisdiction
Australia
Judgment Date
09 August 2018
Procedural Posture
Criminal Proceedings; Procedural and Other Rulings on Evidence Admissibility / Pre Trial or Trial Evidentiary Ruling After Both Accused Pleaded Not Guilty
Outcome
Crown evidence rejected in part; evidence not admitted against the co-accuseds as sought.
Legal Topics
['admissibility' 'relevance' 'unfair Prejudice' 'counter Surveillance Evidence' 'co Accused Evidence']
['evidence' 'criminal Law'] ['admissibility' 'relevance' 'unfair Prejudice' 'counter Surveillance Evidence' 'co Accused Evidence']

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Procedural Posture

Criminal Proceedings; Procedural and Other Rulings on Evidence Admissibility / Pre Trial or Trial Evidentiary Ruling After Both Accused Pleaded Not Guilty

Legal Issues

  1. 1 ["Whether evidence that WE's mobile telephone was found at the Musalla in a partially dismantled state was admissible against co-accused HG." 'Whether evidence that HG left his mobile telephone at home when he and WE left for Bankstown was admissible against co-accused WE.' "Whether footage and a translation concerning dismantling a mobile phone found on HG's device was admissible against WE." 'Whether evidence of a Casio "G-Shock" watch and related searches could support admissibility against a co-accused.']

Ratio Decidendi

Evidence that WE's phone was found dismantled was not admissible against HG because the surrounding evidence could support an inference that HG had an interest in counter-surveillance techniques but could not sustain an inference that HG played any part in dismantling WE's phone. Evidence that HG left his phone at home was not admissible against WE because the evidence did not support an inference that WE was a party to HG's decision. The footage and translation found on HG's phone were irrelevant to the Crown case against WE and, even if admissible, had only slight probative value against WE while carrying substantial unfair prejudice.

Court Disposition

Crown evidence rejected in part; evidence not admitted against the co-accuseds as sought.

Orders

  • ["Evidence of the finding of WE's telephone in a dismantled state should not be admitted in the Crown case against HG." "The Crown is not permitted to rely on the circumstances surrounding HG's phone being left behind at the premises in its case against WE." 'The Crown is not entitled to rely, in its case against...