R v WE (No.7) [2019] NSWSC 966

R v WE (No.7) [2019] NSWSC 966

Although the proposed evidence from paragraphs 5 and 6 of Dr Shanahan's fifth report was substantially probative of the accused's ideology, its probative value was outweighed by the danger of unfair prejudice. The Crown served the report only days before the retrial without explanation; the accused reasonably sought to obtain responsive expert evidence but was delayed by the need for Legal Aid NSW funding and no expert was immediately available. The accused was therefore unable to meet the additional evidence, creating procedural unfairness that engaged s 137 of the Evidence Act 1995 (NSW).

Jurisdiction
Australia
Judgment Date
31 July 2019
Procedural Posture
Criminal Prosecution for Doing Acts in Preparation For, or Planning, a Terrorist Act or Acts / Evidentiary Ruling During Retrial on Objection to Crown Expert Evidence
Outcome
Evidence excluded
Legal Topics
['expert Evidence' 'late Service of Expert Report' 'section 137 Exclusion' 'probative Value' 'unfair Prejudice' 'procedural Unfairness' 'fair Trial']
['criminal Law' 'evidence'] ['expert Evidence' 'late Service of Expert Report' 'section 137 Exclusion' 'probative Value' 'unfair Prejudice' 'procedural Unfairness' 'fair Trial']

Case Brief

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Procedural Posture

Criminal Prosecution for Doing Acts in Preparation For, or Planning, a Terrorist Act or Acts / Evidentiary Ruling During Retrial on Objection to Crown Expert Evidence

Legal Issues

  1. 1 ["Whether the Crown should be permitted to lead the final two paragraphs of Dr Rodger Shanahan's fifth expert report dated 2 July 2019." 'Whether the probative value of the evidence was outweighed by the danger of unfair prejudice to the accused under s 137 of the Evidence Act 1995 (NSW).' "Whether late service of the report and the accused's inability to obtain responsive expert evidence created procedural unfairness."]

Ratio Decidendi

Although the proposed evidence from paragraphs 5 and 6 of Dr Shanahan's fifth report was substantially probative of the accused's ideology, its probative value was outweighed by the danger of unfair prejudice. The Crown served the report only days before the retrial without explanation; the accused reasonably sought to obtain responsive expert evidence but was delayed by the need for Legal Aid NSW funding and no expert was immediately available. The accused was therefore unable to meet the additional evidence, creating procedural unfairness that engaged s 137 of the Evidence Act 1995 (NSW).

Court Disposition

Evidence excluded

Orders

  • ["The contents of paragraphs 5 and 6 of Dr Shanahan's report of 2 July 2019 will be excluded."]