R v HG; R v WE (No 10) [2018] NSWSC 1270

R v HG; R v WE (No 10) [2018] NSWSC 1270

Although the Dabiq material had some probative value, the Crown gave notice of its intention to tender it only immediately before the end of the Crown case, despite having had the material for a considerable period. This deprived counsel for WE of a fair opportunity to review the broader served material to determine whether it supported an inference other than the adverse inference sought by the Crown. That procedural unfairness was sufficient to create a danger of unfair prejudice outweighing the probative value, so the tender was rejected under s 137 of the Evidence Act 1995 (NSW).

Jurisdiction
Australia
Judgment Date
15 August 2018
Procedural Posture
Criminal Trial / Procedural Ruling on Admissibility Objection Shortly Before the Close of the Crown Case
Outcome
Tender rejected
Legal Topics
['admissibility of Evidence' 'unfair Prejudice' 'procedural Unfairness' 'terrorism Offence Allegations' 'extremist Material']
['criminal Law' 'evidence'] ['admissibility of Evidence' 'unfair Prejudice' 'procedural Unfairness' 'terrorism Offence Allegations' 'extremist Material']

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Procedural Posture

Criminal Trial / Procedural Ruling on Admissibility Objection Shortly Before the Close of the Crown Case

Legal Issues

  1. 1 ['Whether the Crown should be permitted to tender Issues 7 and 8 of Dabiq magazine against WE when notice of the proposed tender was given only shortly before the close of the Crown case.' 'Whether the probative value of the evidence was outweighed by the danger of unfair prejudice under s 137 of the Evidence Act 1995 (NSW).']

Ratio Decidendi

Although the Dabiq material had some probative value, the Crown gave notice of its intention to tender it only immediately before the end of the Crown case, despite having had the material for a considerable period. This deprived counsel for WE of a fair opportunity to review the broader served material to determine whether it supported an inference other than the adverse inference sought by the Crown. That procedural unfairness was sufficient to create a danger of unfair prejudice outweighing the probative value, so the tender was rejected under s 137 of the Evidence Act 1995 (NSW).

Court Disposition

Tender rejected

Orders

  • ['The tender of the two issues of Dabiq magazine is rejected.']