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- Unreported Judgment
 QSCPR 5
 QSC 245
SUPREME COURT OF QUEENSLAND
Indictment No 139 of 2016
11.29 AM, THURSDAY, 4 AUGUST 2016
HER HONOUR: The defence has applied for the exclusion of certain evidence, being a video which the defendant viewed on the internet on 9 March 2014. The video appears to be a propaganda video of the preparation for, the carrying out of and the aftermath of what appears to be a suicide bombing. It appears on the video that it was carried out by a person on behalf of Jabhat Al-Nusra, described in the video as the Al-Nusra Front, and the words spoken and sung support an inference that the propaganda intention of the video was to support violent struggle or violent jihad. Evidence is intended to be led to identify the voice of the person who appears to be a suicide bomber, but his face is obscured. Evidence is intended to be led to show that the voice of the person who purports to be the suicide bomber is the voice of a brother of the defendant.
The defence argues that the evidence has limited probative value, and that its prejudicial nature is such that it should be excluded. There is quite properly no argument that the evidence is not admissible on the basis that it is irrelevant. It is clearly relevant. So the first question is whether or not the evidence has limited probative value.
The defence argument is that it can only go to prove an element in count 4, where the acts alleged post-dated the watching of the video, and that alternative inferences are open apart from the inference which the prosecution will seek the jury to draw, that is, that the watching of the video shows the state of mind of the defendant and his support for the actions which purport to be undertaken and the reason for those actions in the video; those alternative inferences being a concern for the fact that it purports to show the defendant’s brother.
The prosecution, on the other hand, argues that the evidence has significant probative value; that it is capable, when combined with other evidence, of showing the defendant’s state of mind and thus his intention during the period in which each of the offences alleged on the indictment took place, whether or not it was viewed before or after the particular acts which are the physical acts alleged against the defendant. The prosecution argues that intent is relevant for all counts, and that it is relevant to the intent which it says exists in each of the counts and of the motive of the defendant.
In my view, the evidence is not only relevant, but it is significantly probative as part of the complete story of the evidence which together is relevant to showing the intent of the defendant. It is capable of supporting the inferences which the prosecution will seek the jury to draw of the intent and motive of the defendant. And, as Justice McPherson held in R v Berrill  Qd R 508, quoted with approval in the New South Wales Court of Criminal Appeal in R v Kalajzich (1989) 39 A Crim R 415 and in R v SJRC  NSWCCA 142, it is a matter for the jury whether or not the interpretation placed on it by the prosecution is the inference drawn by them. That is a question of fact for the jury to determine. The fact that there is a possible alternative inference open does not mean that the matter should be taken away from the jury. So I conclude that the evidence has significant probative value.
The next question is to determine whether or not the prejudicial nature of the evidence so outweighs its probative value that it should nevertheless be excluded. It should immediately be said that part of the prejudicial nature of the evidence derives from its probative value. Significantly, probative evidence is by its nature prejudicial, so it’s not a question of permissible prejudice, but rather impermissible prejudice.
The defence argues that the prejudicial nature of this evidence arises because of the risk of direct tendency evidence, and in particular of fraternal tendency evidence. It is the latter that the defence has particularly relied upon in its oral submissions. That tendency mode of reasoning would be along these lines. The video shows a person which purports to show that it is the defendant’s brother who has engaged in violent jihad by being a suicide bomber. I should immediately say that the prosecution does not intend to seek to prove that it is the defendant’s brother, but only that that is what it purports to show.
The impermissible fraternal tendency reasoning would be that the jury might infer impermissibly that as the defendant’s brother had purportedly behaved in this way, it might make it more likely that the defendant would commit the offences with which he is charged. I should also say that it is not suggested that the defendant has engaged in the same behaviour which his brother has purported to have engaged in, nor is it suggested that he intended himself to engage in that behaviour, that is by becoming a suicide bomber.
The problem with the submission made by the defence is the fact that it was – or at least appears to have been, or is purported to be – the defendant’s brother who is shown to be engaged in violent jihad that leads to his own death, and yet after watching it the defendant continued to engage in the behaviour alleged against him, if the jury is so satisfied, is relevant to his state of mind and his intent; that is, on the prosecution case, that he continued to support Jabhat Al-Nusra even after watching the video which purports to show his own brother dying as a result of that support. And it is also relevant to the inference of his state of mind prior to watching the video.
That does mean that the instruction to the jury not to engage in prejudicial fraternal tendency evidence will be difficult and nuanced, but nevertheless, that is what I would be obliged to do. There is no prejudice apart from the prejudice that arises from its probative value. Any prejudice does not outweigh the probative value of this evidence. I am not led to conclude that it must be excluded because of its prejudicial effect. Of course, I will hear submissions from counsel as to appropriate instructions to be given to the jury in due course as to avoid the risk of impermissible reasoning against the defendant.
Accordingly I refuse the application to exclude the evidence.
- Published Case Name:
The Queen V Omar Succarieh
- Shortened Case Name:
The Queen V Omar Succarieh
 QSCPR 5
29 Oct 2019